Company argues employee failed to disclose medical condition
The Federal Circuit and Family Court of Australia (FCFCOA) recently dealt with a case involving a worker who was allegedly discriminated against on the ground of her disabilities.
In its defence, the employer denied that it engaged in discriminatory conduct. Rather, the worker was the one who failed to disclose to the company her pre-existing medical condition.
Probationary period for trainee
On 13 October 2017, the worker commenced employment with the company as a trainee train driver who would be employed on a probationary period of six months which may be extended by any period.
"As part of this training, you will be required to obtain competencies by completing a number of assessments," the company's clause stated.
"Should you fail to successfully pass any assessment on the first attempt, your employment... will be terminated on notice unless you can establish that there are exceptional circumstances as to why you failed the assessment," it added.
During the later parts of her employment, the worker had an exchange of communication with the company's train crew coordinator at that time where she disclosed that she had ADHD and suffers from Asperger Syndrome.
Consequently, the crew coordinator informed the manager regarding the former's communication with the worker specifically that she was taking medications for a medical condition.
‘Discrimination’ and employment termination
Around November 2017, the worker was taken out of the trainee driver's course and tasked with light duties at one of the company's offices.
The employer and the worker had multiple exchanges of correspondence, particularly about the worker's medication and medical condition.
Shortly after 15 January 2018, a decision has been made that the worker would no longer undergo a fit for duty (FFD) assessment.
Instead, the worker's employment will be terminated because she failed to disclose her true medical condition to the company.
The employer argued that before it had engaged the worker as a trainee train driver, the worker had dishonestly failed to disclose medical information in a form that she submitted to the company when she applied for the position.
Meanwhile, the worker contended that the company was engaged in discrimination by removing her from the trainee drive programme and terminating her employment.
She further alleged that the employer discriminated against her by requesting her to provide information and records relating to her disabilities and by harassing her.
HRD previously reported about a case involving an employee who claimed an unfair employment dismissal following his non-disclosure of a medical diagnosis during a health assessment at work.
In its defence, the employer argued that during several investigations, the worker had shown dishonesty regarding his “fitness” for work, which ultimately constituted a series of misconduct.
Court's decision
Ultimately, the FCFCOA found that the employer unlawfully discriminated against the worker on the ground of the worker's disabilities by terminating her employment.
In its decision, it also stated that by keeping the worker out of the trainee driver’s course around January 2018, the employer also violated the Disability Discrimination Act (DD Act).
"On 20 December 2017 and 23 January 2018 the [employer] acted contrary to s 30(2) of the DD Act by requesting the [worker] provide a medical note or a briefing from the [worker's] treating physician regarding the [worker's] disabilities," the Court further added.
Meanwhile, the Court was not satisfied with the worker's contention that the employer's conduct constituted harassment since "harassment" in the DD act means "something that is repetitious or occurs on more than one occasion."
