Employer’s right to know an employee’s pre-existing health condition

When hiring someone, employers might hesitate to ask questions about someone’s medical history due to privacy concerns or the risk of a discrimination claim. What if the condition effects their ability to perform the role? Does the employee have a duty of disclosure, and if so, to what extent?

A recent case in the Federal Circuit and Family Court of Australia (FCFCOA) provides guidance on how employers can navigate this sensitive area of workplace law.

Case summary - Debus v Condor Energy Services[1]

Wayne Debus was an accountant who had regularly demonstrated inappropriate and bullying behaviour in the workplace while still on probation. For example, he had been sent home for “threatening to headbutt someone”. On another occasion, he had sent a colleague a very inappropriate message on social media.

Mr Debus received multiple warnings about the behaviour and how it could lead to his dismissal. After the social media incident, Mr Debus was dismissed by the employer. He was later diagnosed with “Asperger’s/Autism Spectrum Disorder (ASD) and made a general protections claim under the Fair Work Act 2009. He claimed that his employer had taken adverse action by dismissing him because of his disability.

A key issue in this case was whether the employer should have known about Mr Debus’ autism prior to dismissing him. The doctor that diagnosed Mr Debus claimed that the mental condition should have been noticed by management. It was later confirmed that the employer would not have the necessary expertise to identify Mr Debus’ mental disability.

When Mr Debus was provided with a letter of offer for his position at Condor, Mr Debus was required to confirm whether he had any medical condition that could impact on his ability to perform his role. He chose not to disclose it at that stage or to his manager after being hired.

The court concluded that the disability should have been disclosed at the recruitment stage. Mr Debus had breached the employment contract by not disclosing his condition given that he has being receiving treatment for Autism for most of his life. The employer could not have known about the Autism, and thus it could not be linked to the decision to dismiss Mr Debus.

What are the practical implications?

Employers need to ensure their contracts include clauses that clearly outline the employee’s duty to disclose their disability and the implications of failing to provide that information, including dismissal.

If a potential employee discloses their disability, the employer could face a claim if they did not consider the candidate who could have performed the role with reasonable adjustments at the workplace. The reasonableness of the adjustment would depend on several factors including the size and the resources of the business. It also requires having up to date policies and procedures in place to deal with employees with special needs.

If your employment contracts need to be brought up to date and your workplace policies are due for a review, at Voice Lawyers, we hear you and can help.

Give us a call at 02 9261 1954 or email us at voice@voicelawyers.com or use the link on our website to book a consultation to speak with one of our lawyers – Kathryn Lewis (Managing Director) and Cevdet Basiacik (Senior Lawyer).

This article is general in nature and is not legal advice.

[1] Debus v Condor Energy Services Limited [2022] FedCFamC2G 429