Pre-Employment Representations – Disclosure required before exercising workplace rights

When an employee is hired, they are generally required to provide any relevant documentation or information which may impact their ability to work for the employer. It is important that an employee understands what pre-employment representations are required to be disclosed prior to commencing employment as often failure to disclose can result in disciplinary action, including termination. Common examples of pre-employment representations that are included in most contracts of employment include representations with respect to skills and qualifications, as well as representations with respect to fitness for work and medical conditions that may impact the employee’s ability to perform the inherit requirements of their position.

In circumstances where an employee brings a general protections claim alleging they have been subject to adverse action (including termination) due to their disability or on other discriminatory grounds, section 351 of the Fair Work Act 2009 (Cth) emphasises that the Court must be satisfied that the reason for the employee’s termination was due to their physical or mental disability or other discriminatory grounds. In that regard, it was confirmed in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (Barclay), that:

“the question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act.”

As such, where an employee, during the course of employment, is diagnosed with a physical or mental health condition, the employee generally has a direct obligation to notify their employer of the diagnosis. Such notification must be done seriously. As was noted in Barclay, the employee sending a text message stating that he was “an autistic freak of nature” was not as a full and frank disclosure of his medical condition.

Recently in Debus v Condor Energy Services Limited [2022] the Court was required to examine an employee’s claims of disability discrimination. The employee claimed that their employment was terminated during the probation period on account of disability discrimination as the employee suffered mental health issues and was diagnosed with autism.

In that case, the employment conditions required the employee to acknowledge that they had made full and frank disclosure of information such as any mental or physical disability and any prescribed medication the employee was required to take. The relevant employment condition stated:

“by accepting this offer you confirm that you have disclosed to the Company all information including medical and worker’s compensation information that could reasonably be held to be relevant to your ability to safely and competently perform your role”.

Despite the employee signing and acknowledging this employment condition, in examining the facts, the Court found that the employee did not disclose their mental health issues to the employer and other medical conditions, including the employee’s diagnosis of autism. As a result, the employee’s claims of disability discrimination were dismissed.

Key Takeaways

• It is important for employees to disclose all conditions, whether it is physical or mental and which may detriment their ability to effectively perform their role in the workplace;
• Employers should ensure that their contracts of employment or employment conditions outline “disclosure of information” which an employee needs to acknowledge prior to the commencing employment;
• Not disclosing information which may be detrimental information to an employee and their ability to perform their role will limit an employee’s ability to claim discrimination or adverse action.

This article was prepared with the assistance of Ebony Billett.

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