Why does a failure of a prospective employee to disclose a pre-existing injury – that may impede the employee’s capacity to safely undertake their full range of duties – not enable an employer to terminate employment on the basis of the failure to make a full and proper disclosure of health and capacity to undertake known tasks?
A failure to disclose a pre-existing injury will not necessarily amount to grounds for termination of employment. There is no legal obligation for a prospective employee to disclose any injury unless:
- the employee is requested to make any such disclosure prior to employment; or
- the employee has been informed of the role’s requirements and their pre-existing injury would impact their ability to perform those requirements.
An employee making false or misleading claims about their pre-existing injuries may constitute grounds for dismissal if those false or misleading claims affect the employee’s capacity to perform their role and the employee knew that this would be the case. Generally, however, dismissal on the basis of a failure to disclose an injury is likely to be considered unfair if the employee is able to perform their duties despite the injury.
In relation to the injury itself, you are unable to treat an employee unfairly because they have a disability or impairment, which includes temporary injury. Under the Disability Discrimination Act 1992 (Cth), you must make reasonable adjustments to accommodate employees with disabilities. That is, it is your obligation to ensure that all employees are safe when at work.
Disability discrimination is only lawful if the employer does so because of the inherent requirements of the particular position concerned.
If the injury does not incapacitate the worker from doing their job, then there would be no valid reason for termination and the dismissal would be considered unfair.