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Dismissed for not disclosing disability

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Ending-up-in-a-wheelchair-could-happen-to-any-of-us.
Ending up in a wheelchair or a disability could happen to any of us. You would like to think our employer would understand this. Dispite the discrimination laws and the fair work Act Dismissed for not disclosing disability is still common and devastating for those it affects.

Dismissed due to his autism: The harsh reality many face

An accountant dismissed for aggressive behaviour, including threatening to headbutt a colleague, has had his general protections claim rejected by a federal court. The accountant had alleged his employer had discriminated against him. Namely, that he had been dismissed due to his autism. However, the court ruled that the accountant should have revealed his autism diagnosis to his employer prior to commencing his role Dismissed for not disclosing disability is the conundrum many employees face every day when trying to secure a job.

In this general protections case, Debus v Condor Energy Services Limited [2022], the federal court’s ruling provided a clear message for employees who fail to disclose their medical condition. In particular, those who later allege discrimination or adverse action due to their medical condition.

Dismissed accountant alleges discrimination in general protections claim

The accountant, Wayne Debus, was still in his probation period at Condor Energy Services where he had regularly exhibited inappropriate and bullying behaviour. On one occasion, he had been sent home for “threatening to headbutt someone”. On another occasion, Mr Debus had sent a colleague a very inappropriate message on Facebook Messenger.

“I seriously don’t need you questioning my work in front of the fucktards mate – gives em some idea that they may be right and they’re not. … Not having a go btw – happy to hear your thoughts always,”

Wayne Debus

The same colleague who received that message also told the court that Mr Debus would regularly exhibit odd behaviour. She said that he would “poke me with a ruler to get my attention.” She also claimed that he told her about “many things that I found quite confronting” This included “about him being gay and his lifestyle, history and his use of violence to solve problems”.

Dismissed-for-not-disclosing-disability.-Inclusion-is-important.
Inclusion is important. Dismissed for not disclosing a disability creates difficulties for all parties involved. Most companies are Ok with employees with disabilities. The trouble is the risk managers and accountants take over. They see these employees as a risk, they see it as a potential for a increase in workers compensation fees.

Mr Debus is dismissed for inappropriate behaviour

Halfway through his probation period, Mr Debus was dismissed for failing to alter his aggressive conduct toward his colleagues. He had received multiple warnings from the company’s chief executive, who said his behaviour could lead to a dismissal. The final straw for Condor was the Facebook message detailed earlier. The decision to dismiss Mr Debus had been made prior to his threat to headbutt his colleague.

Shortly after his dismissal, Mr Debus was diagnosed with “Asperger’s/ASD (Autism Spectrum Disorder.” And he subsequently made a general protections claim with the Fair Work Commission, alleging that Condor had discriminated against him due to his autism. He claimed that the company had committed adverse action by dismissing him for his autism. Under the general protections provisions of the Fair Work Act 2009, it’s illegal for an employer to discriminate against an employee due to their physical or mental disability.

Should the employer have noticed employees medical condition?

Key to this general protections case was the question of whether Condor knew about Mr Debus’ autism prior to dismissing him. When he was provided a letter of offer for his position at Condor, Mr Debus was required to confirm if he had any medical condition that may impact his ability to perform his role. Mr Debus of course didn’t disclose it. Additionally, Mr Debus’ manager told the court that “at no time did [he] advise her that he had suffered from a mental health condition which might adversely impact upon his employment.”

However, the doctor that diagnosed Mr Debus told the court that his mental condition should have been noticed by Condor’s management as casual observers. The doctor therefore asserted that the company had notice of his disability and that it had discriminated based on that knowledge. Mr Debus also submitted to the court that he had informed a colleague about his autism during a text exchange. He had said that “I’m an Autistic freak of nature” and “there is no place for someone like me.”

Dismissed-for-not-disclosing-disability.-Lost-a-arm-in-a-accident.
Lost a arm in a accident. Do you need to leave this out of a job application? Can you go for the job interview with a long sleeve jumper and not inform the employer. Its not their business many would argue. I’m sick of having to explain why I lost an arm says the employee.

The court dismisses employees argument

Under cross-examination, it became clear that the doctor had never observed how Mr Debus had interacted with his work colleagues. Nor did he interview any colleagues or ask them if his autism was noticeable. He also revealed that Condor’s management wouldn’t have necessarily had the skills to identify Mr Debus’ disability. The doctor also told the court that Mr Debus had been treated for Autism for most of his life. The court therefore concluded that if that were the case, Mr Debus should have formally disclosed that was the case during the recruitment process.

With respect to Mr Debus’ claim that he had told a colleague about his autism in a text message, the court didn’t see it the same way. It found that that message was appreciated as banter by the colleague, rather than a disclosure of his disability. The court also said that if it was a disclosure, the colleague wasn’t the right person to disclose it to.    The court also found that the Facebook message that led Condor to dismiss Mr Debus was “unjustified on any basis in a modern workplace.”

Ultimately, the court ruled that Mr Debus had failed to notify Condor of his medical condition in contravention of his employment contract. It found that no one at the company was aware of his autism and that there was no link between it and his dismissal. The court therefore dismissed Mr Debus’ case.

Employee-in-a-wheel-chair-welcomed-back-to-work.
Employee in a wheel chair welcomed back to work. This is the way it should be. not all employers are this understanding.

To disclose or not to disclose a medical condition?

While the behaviour of Mr Debus wasn’t justified, his case highlights a dilemma many workers face when searching for a job. That is, should you disclose your medical condition during the interview process? Or should you keep it private and thereby not risk being discriminated against and dismissed as a viable candidate? It’s truly difficult dilemma to face. However, it’s worth noting that under the general protections provisions, it’s not only illegal to discriminate against an employee based on their medical condition, but also a job candidate.

In Mr Debus’ case, perhaps if he had revealed his autism from the start and told Condor that he had been receiving treatment for it his entire life (and was therefore managing it), they wouldn’t have had a problem taking him on. However, the ugly truth is that not all employers may be accommodating of candidates with such disabilities. And it’s often hard to prove that an employer has discriminated against a candidate during the recruitment process.

Did the Company discriminate against the employee

Had Mr Debus’ revealed his autism when he received his letter of offer, and Condor reneged the offer shortly after, perhaps he could’ve proved that the company had discriminated against him. This is all of course conjecture, but it’s potential scenarios like these that many disabled workers are often forced to think about. So, what does the law say about disclosing medical conditions to your employer prior to commencing employment?

Stress-mental-health-effects-us-all-from-time-to-time.
Stress and mental health issues effects us all from time to time. Plus the effects come and go. You should not have to tell your employer every time something happens. This is particularly relevant if you can perform the inherent functions of the role. Many employees particularly in senior roles don’t want to be perceived as weak. You have rights under the Australian Human Rights Commission (AHRC)

The rules around disclosing medical conditions

In most cases, there is no requirement for you to reveal your medical condition to your employer, whether you are in the process of being hired or are already an employee. However, if your condition may impact your ability to perform your job safely, it is typically necessary to disclose it. You may choose not to disclose your medical condition if:

  • Your condition will not impede your ability to perform your job.
  • You feel that your employer will not provide you with the support you need.
  • You have reason to believe that disclosing your condition may result in discrimination or harassment at work.
  • You do not require any support from your employer in relation to your condition.

So if you are asked to disclose your medical condition in a pre-employment form, you don’t have to. That is, if it isn’t going to impact your work performance.

Being dishonest about your medical condition: Can you be dismissed?

If an employer inquires about any medical conditions that may impact your job performance, and you provide inaccurate or misleading information, it may be considered as a valid reason for dismissal.

If your dismissal is based on this reason, and your medical condition did affect your job performance, it’s unlikely that contesting the dismissal through the Fair Work Commission would be successful. On the other hand, if your undisclosed medical condition didn’t affect your job performance, it’s more likely that the dismissal would be considered unfair.

We-can-all-help.-Not think-how-can-we-dismiss-them.
We can all help each other. The employer should not automatically think how to we legally get this employee to leave or dismiss them. But how can we help so they stay.

Not disclosing your medical condition can harm your case in other ways

As we learned in Mr Debus’ case, failing to disclose a medical condition to your employer can hinder your ability to make a successful unfair dismissal claim or general protections discrimination claim. That is, if you’re claiming that you were dismissed or discriminated against due to your medical condition.

This was also highlighted in the recent unfair dismissal case Joel Harris v Securecorp NSW Pty Ltd [2022] , which involved an employee who argued that his employer didn’t take into account his anxiety condition when dismissing him. However, because he had only disclosed the condition after he was dismissed, the employer was absolved of the requirement to take it into account during the dismissal process.

cultural diversity
Cultural and disability diversity should be every employers goal.

Takeaway

We should want to work for these companies. We should all think how we can contribute. My personal view is this. Despite NDIS etc, at extraordinary cost, employees rights with disabilities in the workplace have gone backwards since the 1980’s. Back then nobody cared if you had a disability. And if someone had a disability or approached a company with a son or daughter with a disability, employers went out of their way to help. Maybe it was a simpler time then.

Now employers are concerned about workers compensation premiums. Workers comp premiums in the 80’s were not incentive based. Now employers have to now pay full award rates for someone who may not workout or is a bit slow or takes longer to learn. Maybe they have to be dismissed (no unfair dismissal laws in the 80’s). Discrimination laws are now stronger so employers worry about falling foul of these laws. Employers might end up on social media for the perception of doing the wrong thing. So what’s the answer? Is all too hard, so don’t give them a go.

This has lead to the current predicament of will I just withhold the truth or the whole story to get a job. Lets be honest the majority of people with disabilities who have a job at a company is because someone is paid (by the government) to get them a job. And the employer is paid / receives subsidies to give them a job. The goodwill factor is reduced significantly compared to the 1980’s. We have to do more.

Employee-counting-their-money
Everybody is entitled to work and earn a income. In the alternative if you have been unlawfully dismissed or discriminated against you may be entitled to compensation.

Conclusion to Dismissed for not disclosing disability:

Have you faced discrimination at work? Australia’s workplace laws offer employees protection from many forms of discrimination. This includes if it’s based on an employee’s protected characteristic. For instance, their sex, race, religion, medical condition or a variety of other characteristics. Be aware discrimination is being treated differently and less favorably than others. Its not being treated more favorably.

This is little understood. If you have been dismissed, treated unfairly or unlawfully by your employer because of a protected characteristic, have the means to seek action through the Fair Work Commission. With over two decades’ experience, A Whole New Approach can help you easily make a general protections claim. All adverse action claims, toxic workplaces, or workplace harassment call us immediately. You can benefit from our no win, no fee service – and your first consultation with is free.

Call us today on 1800 333 666 for a confidential discussion about your situation and how we can help.

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