KEY TAKE OUTS:
Suffering an injury can place you in a tough position, you will be thinking who wants to hire someone who has suffered injury. I won’t tell and no one will know, right?
Do I need to tell my employer?
You are not under any obligation to tell but if you are asked and it is a matter of health work and safety then you need to respond. Failing to do so could result in misconduct proceedings should your employer find out later.
The High Court has found that employers can investigate if it is a requirement for the job that they are applying for and in regards to health and safety. If you are asked to complete a pre employment medical and the doctor asks you for existing or previous injuries, you should disclose them. You don’t necessarily have to disclose if you have or have had a workers compensation claim or other type of claim.
An example of where disclosure would be warranted is if you are applying for a position that requires heavy lifting, and you have a back injury which would prevent you from performing the role. You should disclose this as a matter of safety for yourself and your co-workers.
Although an employer may not have a legitimate reason to ask whether you have had a workers compensation claim. If you are dishonest on a job application and are offered the job and later your employer discovers that you have not been honest, you may be subject to disciplinary action up to and including dismissal.
Some claims for workers compensation are minor. If you explain what the claim was, it may alleviate any concerns the employer may have i.e., having cut the top of your finger won’t stop you from lifting a heavy object.
It is unlawful for an employer to refuse to offer a job because that person has exercised the “workplace right” of making a workers compensation claim.
It is also unlawful for an employer or prospective employer to discriminate against employees or prospective employees because of a disability, unless the disability makes the prospective employee unable to undertake the requirements of the job in a safe manner.
In the case of Duncan v Kembla Watertech Pty Ltd [2011] the claimant claimed that the job offer was withdrawn and it was withdrawn because she had a disability. The company said they had withdrawn the job offer, on the grounds that the applicant had various medical conditions that prevented her from performing the essential physical parts of the role. The Applicant claimed it was grounds for a disability discrimination claim. It was held that the company was found not guilty of unlawful disability discrimination.
Takeout: A prospective employer can ask you during an interview and it is not an invasion of privacy provided the questions are relevant to the ability of the prospective employee to perform the requirements of the role.
ABOUT KARENA NICHOLLS:
Karena is a Partner at Coutts Lawyers & Conveyancers and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach which has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.
For further information please don’t hesitate to contact:
Karena Nicholls
Partner
karena@couttslegal.com.au
1300 268 887
Contact Campbelltown Lawyers today.
This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.
