A recent decision of the NSW Civil and Administrative Tribunal (the "Tribunal") has highlighted the need for employers to take care to avoid discrimination when requiring prospective employees to disclose medical conditions and undergo examinations during the recruitment process.

In Chalker v Murrays Australia Pty Ltd [2017] NSWCATAD 112 the Tribunal ordered an employer pay AU$10,000 in damages after finding it discriminated against a bus driver by refusing to offer him a position due to his mental illness, even where he failed to initially disclose he had one.

The Facts

The job candidate applied to Murrays Australia (the "Company") for a bus driver role in late 2015. On his application form he responded "no" to the question: "Do you suffer from any medical condition, disability or injury that may have an effect on your performance of the duties in the job for which you have applied?"

In a subsequent medical examination the candidate revealed he was taking medication for a diagnosed borderline personality disorder. The assessing doctor reported that the candidate became "argumentative" and "difficult" when asked if his treating psychiatrist could be contacted about the medication. As a result of the assessment, the doctor found the candidate was "temporarily" unfit for work and recommended further investigations be undertaken.

Contrary to this recommendation, the Company chose not to pursue any further assessment and declined to offer the candidate a job, deciding there would be "problems down the track with him because of his behaviour". The Company's operations manager claimed that one of the reasons he was denied employment was that he was dishonest in failing to initially disclose his medical condition and use of prescription drugs.

The Decision

The Tribunal found this decision was not justified on the basis that the candidate's initial non-disclosure was not "unreasonable or dishonest". Having driven a bus without incident since being diagnosed with a personality disorder in 2014, the candidate had a strong belief that neither his condition nor his medication had any effect on his ability to safely drive a bus. Accordingly, the Tribunal was satisfied that he had been honest in answering a question about his ability to "perform the duties" of a bus driver.

The Tribunal further considered that the candidate's agitated behaviour during his medical examination was also reasonable, given he had genuine concerns about the relevance of questions he was being asked.

The Tribunal considered that the Company had failed to acknowledge the temporary nature of the candidate's unfitness and that there was no evidence of him refusing to undergo further medical assessment. It was found that, in refusing to conduct further investigations, the Company had not come to a final view as to the candidate's ability to comply with the inherent requirements of the position. The Tribunal found that the Company would not have refused to employ a person whose medical examination revealed agitated and irritable behaviour unless that person was known to have a mental illness. Accordingly, it was held that the Company treated the candidate less favourably than they would have treated a person without his disability.

Lesson for Employers

Employers have a legal duty to take reasonable care to avoid foreseeable risks of injury in the workplace. It may therefore be appropriate and necessary to request that candidates disclose medical conditions which may affect their ability to work properly and safely, and to ensure candidates can perform the inherent requirements of the role.

Nonetheless, the Chalker decision provides a reminder that employers need to exercise caution in recruitment to avoid potentially costly claims. That is, employers should be wary of making assumptions about a potential employee's future conduct due to mental illness or other health conditions. Before making a decision to refuse employment care must be taken to ensure a final view has been properly formed on a person's ability to perform the job. This may require conducting further investigations. Further, it may be reasonable for a prospective employee to not disclose a medical condition where they reasonably believe it has no impact on or relevance to their performance.