Providing false information on a pre-employment medical

Cases

Providing false information on a pre-employment medical

The provision of false information in a pre-employment medical assessment may in some circumstances constitute serious misconduct and warrant dismissal.

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The provision of false information in a pre-employment medical assessment may in some circumstances constitute serious misconduct and warrant dismissal. In Campbell v ACT Community Care, Print S3565, [2000] 192 IRCommA, (24 February 2000), the Australian Industrial Relations Commission confirmed the view that the provision of wilful and misleading statements by a prospective employee needs to be judged in view of how relevant the material is to the making of the contract. That is, whether the provision of false information affected the making of a new contract of employment.

Filed pursuant to s170CEof the Workplace Relations Act 1996, an action by a former Counsellor for ACT Community Care applied for relief in respect of her termination of employment, which was alleged to have been harsh, unjust and unreasonable. The termination related to an allegation that the employee had made wilful and misleading statements in respect of a medical examination.

Background

Employed in May 1993, the employee had been engaged on several temporary employment contracts. In July 1998, the employee was made a formal offer of appointment to a permanent position. The offer was conditional upon a pre-employment medical check and a satisfactory probationary period of six months.

It came to the attention of the employee's direct line manager and the Director of Human Resources, both of whom were familiar with the employee's medical condition, that there were some anomalies and incorrect answers provided on her medical report. In meeting to clarify the anomalies with the her manager and the Human Resources Director, the employee explained that she had intentionally not disclosed information in order to not jeopardise her chance of securing a permanent public sector position.

At this stage, the employee was informed that her actions would be considered as serious breach of the employment contract and would be reported to the CEO. In a letter dated 2 November 1998, the CEO terminated the employee's employment, informing her that her dishonesty had resulted in a breach of the ethical standards and code of conduct of ACT Community Care. Furthermore, the CEO cited the serious implications for occupational, health and safety both for the employee and her colleagues.

Submissions

The employee conceded that she had not correctly answered some questions on the medical report. However, the employee submitted that should the Commission find that she had been dishonest, that finding ought to be mitigated by the employer's "corporate knowledge" of her existing medical condition. To this end, the employee submitted that the employer had acted harshly and unfairly, and that her errors did not warrant termination of employment.

The employer submitted to the Commission that the dishonest conduct of the employee was regarded as a matter of significant importance because of the employer's liability under the relevant occupational health and safety legislation; and the employer's financial exposure for possible workers' compensation claims. Furthermore, given the nature of the work carried out by a Drug and Alcohol Counsellor, the employer required total honesty and integrity from employees. In this regard, the employee's actions warranted termination.

Decision

Lawson C commenced with the observation that in his opinion the employee's evidence was unreliable. Based on her evidence, the Commissioner held that when it suited her, the employee altered her recollections and gave explanations of events that intended to mislead not only her supervisor but also the Commission.

Referring to the decision in Commissioner of Police v Kim Michelle Hollingsworth [1997] NSWIRComm 191 (22 December 1997), Lawson C noted that the relevance of any misstatements in an employment application would depend on their materiality to the position in question. In this instance it was the Commission's view that the employee's actions represented a deliberate act of deception, intended to convey a false picture of fitness for work in a alcohol and drug programme. That is, the false statements and declarations were intended to materially affect the making of a new contract of employment. This according to the Commission constituted a valid reason for the employee's termination of employment. In the Commissioner's opinion, "She was the sole architect of her undoing".

The Commissioner went on to consider whether the employee had been afforded sufficient opportunity to respond to the reasons for her termination. Having satisfied himself that the employee had been afforded adequate opportunities to respond to the allegations, the Commissioner concluded that the termination was not harsh, unjust or unreasonable. The employee's application was consequently dismissed.

 
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