Medical conditions: Do I need to tell my boss?

Many Australian workers are often unsure if or when they are required to disclose a medical condition to their employer. This uncertainty may arise in different scenarios. For instance, when you have been diagnosed with a condition during employment. Or when you are asked about any medical conditions when applying for a job.

When can my employer ask about medical conditions?

Like many Australians, you may feel like your medical conditions are none of your employer’s business. You may think that it is a private issue and may not want to reveal any details as it may cause issues at work. This is a completely valid perspective. As you will read later in this article, disclosing a medical condition could open you up to discrimination from your employer.

There is no federal, state or territory law that obligates you to reveal your medical condition to your employer (or prospective employer) unless it is relevant to your job. Specifically, if your medical condition will affect your ability to perform your job. Or if your condition could affect the health and safety of others.

Employers have the right to ask if you have a medical condition only if they have a legitimate reason to do so. This includes if they need to work out if you can perform the essential requirements of your role. It can also include if they need to determine if reasonable adjustments need to be made to support you due to your condition.

An example that is common in job applications is an employer asking for you to ‘list your medical conditions.’ You are not legally obligated to disclose all your medical conditions. Only those that can affect your ability to perform the role.

Should I tell employer about my medical condition?

If your condition could affect your ability to perform your role, it may be in your best interests to tell your employer about it. An example is if you were asked during the recruitment process if you have a medical condition that may affect your ability to perform the role. If you get the job, you may later experience difficulties performing the role due to your medical condition.

If this happens, then your employer could have the right to treat this non-disclosure as dishonest conduct. They could then reasonably dismiss you or initiate disciplinary action.

Train driver dismissed for not disclosing medical conditions

The following events took place in the Federal Circuit and Family Court of Australia. Per the case Annovazzi v State of New South Wales – Sydney Trains [2023]. Renee Annovazzi started working as a trainee train driver for Sydney Trains in October 2017. When she applied for the job, she was required to fill out an online form that asked if she had a diagnosed condition requiring reasonable adjustments. It also asked if she had any impairment that could affect her ability to perform the role. Ms Annovazzi answered “no” to both.

However, around two years earlier she had seen a psychiatrist about what she suspected to be Asperger’s Syndrome. While the doctor never diagnosed her with the condition, he had described it as such. Ms Annovazzi was diagnosed with having ADHD by her psychiatrist.

Told trainer to ‘shut up,’ revealed medical conditions

In her first few weeks of employment at Sydney Trains, Ms Annovazzi said she experienced a “culture shock.” She was required to undergo a number of assessments. Sydney Trains had said in its letter of offer to her that failing to pass an assessment could lead to dismissal. Ms Annovazzi said this expectation placed “unnecessary stress” on her.

The incident that led to her disclosing her medical conditions took place on 17 October 2017. While undertaking an assessment, Ms Annovazzi told a trainer to “shut up.” Not long after this incident she was asked about her behaviour by a manager. It was then that Ms Annovazzi revealed that the reason she told the trainer to shut up was “because I have ADHD.”

The manager said that that was not an excuse for her behaviour. Ms Annovazzi responded by saying “I have Asperger’s Syndrome too.” She was then asked if she had disclosed these conditions during the recruitment phase. Ms Annovazzi said that she had.

Revealed apparent use of ADHD medication

A few weeks later, Ms Annovazzi texted her a Sydney Trains manager asking who she needed to speak to about medication. She specifically wanted to know about this in the event that she was “drug tested and it shows up.” Ms Annovazzi subsequently sent the manager a photo of a bottle labelled “Dexamphetamine Tablets,” which is used to treat ADHD.

The manager asked her what she used that medication for. Ms Annovazzi said that it was prescribed to her by her doctor to take on “an as needed basis.” The manager asked if she had revealed her ADHD during recruitment. To which Ms Annovazzi said no. However, she said that she had told the doctor who performed her medical assessment.

Dismissed for not declaring medical conditions

Following these revelations, Sydney Trains got in contact with the company that facilitated its medical assessments. The company said that it did not have any record that Ms Annovazzi was taking ADHD medication. It said that she had specifically denied that she had any psychiatric conditions.

A doctor at the medical assessment company later told Sydney Trains that “ADHD is a problem for a train driver.” He said that as Ms Annovazzi did not declare the condition in her medical assessment, she was “temporarily unfit” from performing her duties. She was subsequently taken out of her trainee program and placed on light duties.

In January 2018, Sydney Trains management agreed that Ms Annovazzi be dismissed for “failure to declare during probation.” In her termination letter, Sydney Trains said she had not declared her conditions in her application form or during medical assessments.

Made discrimination claim

Ms Annovazzi subsequently lodged a complaint with the Australian Human Rights Commission. She alleged that Sydney Trains had violated the federal Disability Discrimination Act 1992 in three ways. Firstly, by removing her from the trainee program and dismissing her. Secondly, by requesting that she provide information and records on her medical conditions. Thirdly, because she had experienced harassment from Sydney Trains based on her disabilities.

Sydney Trains denied the allegations to the Federal Circuit and Family Court of Australia. It argued that Ms Annovazzi’s dismissal was justified as she had dishonestly failed to disclose her medical conditions. It specifically outlined that she had not disclosed them when filling out the application form for her job.

Worker said she never took ADHD medication

With respect to omitting her conditions from the application form, Ms Annovazzi argued to the Court that her conditions would not affect her ability to perform the role she applied for. She said that Asperger’s Syndrome and ADHD had not in the past affected her past employment. She said she could “fathom no reason” why the conditions would make her incapable of being a train driver.

Ms Annovazzi also clarified her use of dexamphetamine for her ADHD. She told the Court that she was not using the medication while employed at Sydney Trains. Ms Annovazzi was frustrated with the training she was undergoing and wanted to take it to “deal with the frustration” temporarily. She said she had sought permission to use the medication so that she would not get in trouble if she was drug tested.

Court found dismissal was discriminatory

To determine if Ms Annovazzi experienced discrimination, the Federal Circuit and Family Court considered how a fictional employee without ADHD or Asperger’s Syndrome would have been treated by Sydney Trains. The Court found that the fictional person would not have been asked to take a medical assessment or be fired if they did not disclose their medical conditions.

The Court also did not find that Ms Annovazzi had been dishonest when she completed the application form for her job. It also found that she had not been dishonest when she had medical assessments while employed by Sydney Trains. The Court therefore found that the organisation had breached the Disability Discrimination Act 1992.

Specifically, by unlawfully discriminating against her by dismissing her from her role. It ultimately found that Ms Annovazzi had been fired due to her disabilities, and not because she had been dishonest.

Sydney Trains was wrong for treating medical issue as misconduct

The Federal Circuit and Family Court said that the decision to dismiss Ms Annovazzi was disordered. It said that it was not clear who decided to treat her case as a misconduct allegation. After initially treating it as a fitness for duty concern. The Court noted that this disorder was due to decisions being made both by Sydney Trains and its agency, Transport Shared Services.

It also found that Sydney Trains transitioned Ms Annovazzi’s case from one of fitness for duty to an allegation of dishonesty without properly investigating the claim. The Court said that Sydney Trains erred in treating her medical-related matter as misconduct. It also noted that Sydney Trains did not sufficiently examine whether Ms Annovazzi’s medical conditions influenced her disclosures of Asperger’s Syndrome and ADHD.

The Court also found that Sydney Trains did not provide Ms Annovazzi with the chance to respond to the allegation of dishonesty. It said that this error was of particular importance as Ms Annovazzi’s case involved her disabilities and therefore there needed to be careful consideration of all factors. The Court said that the allegation of dishonesty was based on unconfirmed and second-hand information.

Removal from trainee program was unlawful

The Federal Circuit and Family Court next considered whether Ms Annovazzi’s removal from the trainee program was discrimination based on her disabilities. Again, the Court compared her to how the fictional person would have been treated. It found that Ms Annovazzi was treated less favourably by Sydney Trains by pulling her from the trainee program.

The Court also considered if Ms Annovazzi had been harassed by Sydney Trains based on her disabilities. She argued that this took the form of requests to see her medical records as well as threats to call the police. Ms Annovazzi also claimed that Sydney Trains had not allowed the delay of a meeting so that she could organise a support person to attend. The Court found that Sydney Trains’ actions in this respect did not amount to discrimination.

Worker vindicated

Finally, the Federal Circuit and Family Court considered if Sydney Trains’ request of medical information from Ms Annovazzi amounted to discrimination. The Court found that it had by requesting her to provide a briefing from her doctor twice. It also noted that Ms Annovazzi was requested to offer medical information that the fictional employee would not have been requested to provide.

Ultimately, the Court ruled that Sydney Trains had unlawfully discriminated against Ms Annovazzi on all three counts of her complaint. Ms Annovazzi had sought reinstatement to her position and compensation. She also sought an apology from Sydney Trains for the discrimination she had experienced. The Court said that it would address these matters in a subsequent hearing.

Have you faced discrimination at work?

If you have faced dismissal or unfair treatment due to disclosing your medical condition, our team at A Whole New Approach can help. We can step you through the process of making a discrimination claim. Our team have helped over 16,000 workers across Australia to take action through the Fair Work Commission or Australian Human Rights Commission.

We operate in every Australian state and territory – and we offer a no win, no fee service. We at A Whole New Approach are well-known for our work defending the rights of workers. Employers fear us for holding them account and helping workers get their rightful compensation. Read about autism in the workplace.

Call us today on 1800 333 666 for a complimentary and private discussion of your circumstances.

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