What happens when you have to terminate the employment of an employee because they did not disclose a medical condition that substantially affects their ability to perform their job? Are you liable for unfair dismissal under the Fair Work Act 2009 (Cth) or are you legally allowed to terminate the employment agreement?
Joel Harris v Securecorp NSW Pty Ltd — a recent case heard by the Fair Work Commission — provides key insights into this scenario. The Commission ultimately ruled in favor of the employer due to the acute nature of the employee’s medical condition and his failure to comply with the reasonable requests of his employer.
Harris was employed as a security guard by Securecorp. He was terminated following a pattern of misconduct where he allegedly:
- Slept on the job;
- Blocked his supervisor’s number;
- Intimidated workers;
- Left work early and the premises unsecured; and
- Breached COVID 19 guidelines.
Prior to his employment, he also failed to disclose to Securecorp that he suffered from clinical anxiety that impaired his performance on the job.
Harris argued that he was unfairly dismissed given that Securecorp had failed to take into account his anxiety. He also noted that he had been unfairly treated by his supervisor who routinely swore and insulted him.
While the Commission noted that Harris had been mistreated and that the allegations of his sleeping on the job and blocking his coworkers’ numbers were unsubstantiated, the Commission ruled that he had not been unfairly dismissed. He had violated his Employee Code of Conduct and failed to comply with his employer’s lawful and reasonable requests.
The Commission noted that the onus was on Mr Harris to disclose his mental health condition and as a result, Securecorp could not be held liable for failing to accommodate it. Under s 28 of the Fair Work Act, employees must take reasonable care of their own safety. By failing to disclose that he suffered from anxiety at the onset of his employment, he put himself, colleagues and the public at large at risk.
A contributing factor to the decision was the fact that Securecorp had established fair procedures that allowed Harris to respond to the termination notice. They provided adequate warnings regarding his past misconduct and allowed Harris to state his case and receive support.
The decision of the Commission confirms that the entire circumstances and past conduct of an employee is assessed when considering whether a dismissal has been unfair. Having fair procedures and warning systems in place is vital to ensure that a termination is fair.
The decision also emphasises that employees must accurately disclose the nature and extent of their medical conditions when required. General and vague references to the condition are insufficient. Failing to meet this requirement are valid grounds for dismissal.
If you believe you have been unfairly terminated by your employer or are a business seeking to defend against an unfair dismissal claim, OpenLegal can assist you. Don’t hesitate to get in touch with us at 1300 337 997 or through our contact form.