Question:  We have an applicant for a position who underwent a medical assessment as part of the recruitment process. The person appears to have the necessary experience and qualifications for the position and we expected to hire the person.

It was made clear to the person that the offer of employment was conditional upon her satisfactorily completing a pre-employment medical examination. The doctor’s advice after the medical examination was that the employee was not fit for the prescribed duties.

We have withdrawn the offer of employment, however, the person has indicated she will make either an unlawful termination of employment application or lodge a claim under the state (NSW) anti-discrimination legislation.

Can she take such action despite not being employed by the company? And is the company potentially in breach of the Fair Work Act 2009 or discrimination legislation?

Answer: The employer would need to be aware that a claim of adverse action (refusing to employ the person) under the general protections provisions of the Fair Work Act is possible because prospective employees are taken to have workplace rights under the Act (s342(1)).

The employer could successfully rebut the person’s allegation if the reason for not offering employment was due to her incapacity to perform the inherent requirements of the job, as advised by the doctor who conducted the medical examination.

Disability discrimination?

Broadly speaking, disability-based adverse action claims made by a prospective employee are unlikely to be successful unless the employee is able to demonstrate adverse action was taken because of the disability itself.

It appears that an employer will not breach the prohibition on taking adverse action based on the employee’s physical disability if the action is due to the consequences of the disability; for example, the prospective employee cannot perform the inherent requirements of the job for example. See: Hodkinson v Commonwealth [2011] FMCA 171.

If a claim is lodged, the FWC must conduct mediation or conciliation or, by making a recommendation or expressing an opinion, advise the parties whether it considers that the claim would not have a reasonable chance of success before a court. It should be noted that a reverse onus of proof applies in general protections matters before a court.

Onus on employer

This means the employer must rebut the allegation, on the balance of probabilities, that it failed to offer employment to the person on discriminatory grounds.

If the medical issues discovered in the medical examination are not relevant to the offered position, or would not prevent the person from performing the inherent requirements of the job, the company may be in breach of the Fair Work Act.

Another remedy?

Anti-discrimination legislation may state that the discrimination tribunal may decline a complaint if another more appropriate remedy has been, is being, or should be, pursued by another body. For example, a complaint about an employee’s poor performance would not prevent a successful complaint to an anti-discrimination tribunal if the second complaint was for a different reason not dealt with in the first complaint (eg the withdrawal of the offer of employment was based on racist grounds). See: Deva v University of Western Sydney [2008] NSWCA 137.