In a recent unfair dismissal decision, the Fair Work Commission (FWC) has issued a reminder about the importance of honesty and candour in an employment relationship – particularly when it comes to determining an employee’s fitness for work.
In the decision of Soans v KDR Victoria Pty Ltd T/A Yarra Trams [2022] FWC2876, the FWC was tasked with determining whether or not a tram driver’s failure to disclose a recent stroke warranted the termination of his employment.
The employer in this matter, Yarra Trams, was regulated by the National Standard for Health Assessment of Rail Safety Workers (the National Standard). The National Standard sets out minimum standards for rail transport operators to manage risks posed by the ill-health of their rail safety workers (including, in this instance, tram drivers). Of particular relevance, the National Standard requires a person who suffers a stroke to be categorised as temporarily unfit for duty for at least three months following the stroke.
In July 2021, the employee was admitted to hospital after suffering a stroke and was certified unfit to work for four weeks. The employer was never advised that the employee had suffered a stroke.
Upon the employee’s return to work, he was required by the employer to attend two medical assessments – a triggered health assessment following his absence from work (as required by the National Standard) as well as a Category 1 medical assessment.
In the triggered health assessment, the employee made no mention of his stroke. According to the doctor, when he asked about the reasons for the employee’s absence and his diagnosis, the employee stated that he felt weak and tired and that he did not receive any diagnosis. The doctor then formed the view that he needed to access the employee’s hospital records to confirm the employee’s history. Following this examination, the doctor certified the employee fit to return to work subject to review.
The employee then had a two-week review appointment following receipt by the doctor of his hospital records, which confirmed that he had suffered a stroke. In that appointment, the doctor advised the employee that he was unfit to drive trams in accordance with the National Standard and that he could only be cleared to return to work after three months and with clearance from a neurologist or stroke specialist.
The employee’s reasoning for not disclosing his diagnosis was that he did not want to disclose something that was wrong or misleading and he thought it was best that the doctor obtain the hospital’s records. In addition, he was fearful that he would be dismissed because of his stroke.
In relation to the Category 1 medical assessment, the employee provided evidence that he indicated that he had a stroke on his medical history form and that he advised the assessing doctor that he had an upcoming neurologist appointment.
However, the assessing doctor stated that he specifically asked the employee if he had suffered a stroke (as the employee’s medical history form was unclear) and the employee advised him that he had not and that he was taken to hospital as he had not been feeling well. The assessing doctor also adduced evidence that the employee did not tell him that he was unfit for work for three months or anything else about his triggered health assessment.
As a result, the assessing doctor certified the employee fit to return to work with the only condition being that he wear corrective lenses. The doctor stated that, as a key contributor to the development and drafting of the National Standard, he would never declare a rail safety worker to be fit for work if he knew they had had a stroke in the last three months.
Upon receipt of the conflicting medical assessments, the employer made inquiries and determined that an investigation was warranted into why the employee did not disclose his stroke diagnosis or the fact that he was certified unfit to work for three months. The employee’s reasoning was that he did not know he was certified unfit to work.
The employee was ultimately dismissed for failing to disclose his diagnosis, his capacity for work and also for lacking candour and failing to be honest during the investigation.
The FWC was not convinced by the employee’s evidence – finding that it was not reliable and that he was not honest or candid about a number of contentious matters.
The FWC did not accept the employee’s submission that he did not know of his obligations under the National Standard. It found that he had completed online training (albeit with assistance from his supervisor) and that he was provided with a rail safety worker obligation sheet at least twice.
The FWC also did not accept that the employee did not know enough about his diagnosis to be able to disclose it to the doctors, noting that he had told his own doctor shortly after the event that he had suffered a stroke. On his own evidence, the employee chose not to tell the assessing doctor because he was fearful of the consequences.
In relation to the Category 1 medical assessment, the FWC preferred the evidence of the assessing doctor that, if he had known about the diagnosis, he would not have certified him fit for work.
Taking into account all of the above, the FWC was satisfied that the employee’s lack of candour and false and misleading statements to the doctors and his employer were valid reasons for his dismissal. It found that “the conduct that the [employee] engaged in is serious and strikes at the heart of the employment relationship”.
The application was therefore dismissed.
Successful employment relationships are heavily dependent on honesty and candour. Employers must be able to rely on their employees to tell the truth and to not mislead about important matters, particularly when it comes to work health and safety. This decision serves as a reminder that a lack of honesty and candour can serve as a valid reason for dismissal.
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