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Termination for failing to disclose medical history not unfair

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 83, 28 June 2005

A mining company that sacked an employee for failing to disclose pre-employment back and neck pain acted fairly.

Kalgoorlie Consolidated Gold Mines Pty Limited (KCGM) engaged an employee as a truck driver. On her pre-employment health assessment the employee answered no to the question “Have you had back/neck trouble of any kind?” The employee had previously undergone three x-rays, after experiencing pain in her back and neck.

The employee injured her back and neck whilst working for KCGM. Medical assessments after the injury found osteoarthritis and a degenerative disc disease. The employee went through extensive rehabilitation. As part of the rehabilitation the employee worked in a Blast Crew.

Even though the employee was prepared to take the risk of continuing to work in the blast crew, KCGM determined that the risk of injury in the blast crew was too high. As the employee could not work as a truck driver and no other alternative work was available, KCGM dismissed the employee because of her non disclosure.

The employee claimed that the termination was harsh, unjust and unreasonable, as she had no opportunity to respond to allegations concerning her completion of the pre-employment health assessment or the x-rays.

The AIRC found that:

• the termination was for a valid reason - the incapacity of the employee to perform the duties for which she was employed;
• the employee should have disclosed the previous back and neck incidents;
• had the employee been given an opportunity to respond, this would not have provided any additional relevant information on which KCGM could have based its decision; and
• the absence of the opportunity to respond in that circumstance did not cause the termination to be harsh, unjust or unreasonable.

HR Tips

• An employee’s physical incapacity to perform the job for which the employee is engaged may be a valid reason for termination.
• Employers should consider the availability of alternative positions, which an employee can safely perform, before moving to terminate.
• An employee’s preparedness to expose herself to risk does not overcome an employer’s obligation to ensure her health and safety.
• An employer can rely on pre-employment health assessments when considering termination.

Jason Donnelly
Senior Associate
Australian Business Lawyers