When is an employee obligated to disclose their medical information? November 2022

BY Paulinet Tamaray 11 Nov 2022

TP Human Capitals comment – good to see when the FWC commission make common sense rulings. This had the potential to set a dangerous and risky precedent for employers.

The Fair Work Commission (FWC) recently dealt with 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.

Background of the case

The worker was employed as a tram driver for a Melbourne tram network since November 2000. In July 2021, the worker suffered a stroke when he got home.

After three days in the stroke care unit, the worker was discharged with a medical certificate stating that “he could not drive and/or operate heavy machinery and was unfit for work for a period of four weeks from 8 July 2021 until 5 August 2021,” the commission said.

FWC further said that the employer underwent a process called “triggered health assessment” following an employee’s absence from work, and the employee was then directed to attend the evaluation.

However, the employer claimed that during a series of health appointments, the worker did not reveal his medical diagnosis to either of the two medical practitioners who examined his fitness for work — a clear breach of his obligations under the National Standard.

It was only when the worker provided consent to one of the medical practitioners to access his medical records that it revealed the worker’s diagnosis.

The employer stated that such dishonesty had damaged the trust and confidence between the employer and the worker. Thus, the employer dismissed the worker in January 2022 for serious misconduct.

The employee argued that he allegedly failed to inform the two medical practitioners about his current medical condition because “he was unable to know the details of his medical condition because they were difficult for anyone” and “he did not know he had been deemed temporarily unfit for work.”

The worker also said that the information shared between a medical practitioner and worker was confidential and should not have been disclosed to anyone, including his employer, as it breached a confidentiality obligation. Thus, the worker alleged it was unfair to rely upon such information as the basis of his dismissal.

The FWC’s decision

Taking into account all the circumstances, the FWC dismissed the worker’s case and found the employment dismissal fair and valid. It noted that the worker should have been aware of his obligation to notify the employer of medical conditions that would likely affect his capacity to work safely and effectively.

Moreover, while the commission noted a breach of confidentiality requirements under the National Standard concerning the worker’s hospital records, it agreed with the employer that any confidentiality violations were mainly driven by the worker’s lack of honesty.

“I am satisfied the dismissal was not harsh, unjust or unfair, given the gravity of the conduct and the procedural fairness afforded the applicant [worker],” the FWC said.