Sydney Trains denied discriminatory conduct and claimed the former trainee train driver was “dishonest and untruthful” in failing to provide “full disclosure” about their relevant medical information in a pre-employment application form, arguing it may have jeopardised safety standards in the business.

The applicant answered “no” to questions about impairments or conditions that would affect their ability to perform the job and require Sydney Trains to make reasonable adjustments throughout the selection process.

The applicant did disclose the pre-existing condition in their pre-employment medical assessment, but the medical practitioner did not include it in the examination record believing the medications and the condition would not impact the employee’s role.

After starting employment in October 2017, and after a conversation with a coordinator about their medication, the employee was directed to provide a medical note from their physician about the use of dexamphetamine and the conditions of ADHD and Aspergers Syndrome.

Soon after, the employee was removed from the trainee program and placed on light duties.

Sydney Trains investigated the pre-employment disclosures and appeared to switch its focus on the question of “honesty” in the application process rather than whether the employee could adequately meet the safety requirements of the trainee train driver role.

Decision

The Court was not convinced Sydney Trains proved the trainee’s failure to disclose key information was “dishonest” and declared that the dismissal was unlawful discrimination against the applicant on the grounds of their disabilities.

The Court concluded that Sydney Trains was already considering terminating the applicant’s employment before obtaining the requested medical information or report.

Sydney Trains also failed to provide relevant evidence or statements from key participants in the decision-making process and did not call the relevant doctor as a witness, nor did it sufficiently seek confirmation from the pre-employment medical practitioner whether the applicant had disclosed their diagnosis and/or treatment and medication.

The Court concluded it treated the trainee less favourably than it would have treated a “hypothetical comparator” employee.

Learning for business

This case highlights the significant risk of terminating employment based on medical capacity. This area of employment can be complex, and employers must ensure any dismissal decision is based on objective and reasonable grounds – especially where discrimination may be a factor.

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For assistance with any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 03 8662 5222.

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