Unfair dismissal – guard unable to ‘secure’ unfair dismissal remedy due to failure to disclose medical condition

The Fair Work Commission has recently denied a security guard’s claim for an unfair dismissal remedy where the employee failed to disclose an acute anxiety condition to the employer.

The recent determination of the Fair Work Commission (FWC) in Joel Harris v Securecorp NSW Pty Ltd [2022] FWC 2781, offers pertinent considerations for employers when having regard to an employee’s undisclosed pre-existing medical conditions at the time of termination of employment.

Facts

In this case, Mr Harris was employed as a security guard at Securecorp for a period of four years. Following repeat incidents of inappropriate conduct, Mr Harris’ employment was terminated in March 2022. Securecorp considered that Mr Harris’ pattern of unsuitable behaviour and insubordination evinced a clear disregard for his employment obligations, warranting termination. Mr Harris’ alleged behaviour included:

• sleeping on the job
• blocking his supervisor’s number so Mr Harris could not be contacted
• intimidating colleagues
• departing work early leaving business premises unsecured
• inviting a fellow staff member into the control room to view CCTV footage without client approval.

Mr Harris also failed to disclose a pre-existing medical condition to Securecorp prior to the commencement of his employment. Securecorp argued this disclosure formed a condition precedent to Mr Harris’ employment and his failure to disclose the condition did not allow Securecorp to appropriately consider Mr Harris’ suitability for his security guard role.

Mr Harris applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth), contending that his dismissal was a disproportionate response to what, in essence, were minor incidents of misconduct. Mr Harris also argued that Securecorp failed to have regard to his undisclosed psychological condition when deciding to dismiss him and this failure amounted to his dismissal being harsh, unjust and unreasonable.

The FWC rejected this position. They found that Mr Harris was validly dismissed due to his history of non-compliance with workplace policies and procedures, which amounted to serious misconduct. Likewise, the FWC concluded that Mr Harris’ failure to disclose his pre-existing medical condition prior to commencing employment absolved the employer from having to take the condition into account upon dismissal. Securecorp could not have been expected to consider a medical condition that they were never made aware of.

Policies and procedures

Employees must adhere to their employer’s workplace policies and procedures, where those policies and procedures constitute lawful and reasonable directions. In Mr Harris’ case, the FWC considered that Securecorp’s Code of Ethics contained lawful and reasonable directions with which Mr Harris was required to comply. The combined effect of Mr Harris’ misconduct constituted a significant breach of these directions amounting to serious misconduct, which formed a valid reason for his dismissal.

Health and safety

The case also gives rise to broader considerations of an employee’s health and safety responsibilities. Pursuant to section 28 of the Work Health and Safety Act 2011 (Qld), employees must take reasonable care for their own health and safety while at work. The scope of this obligation extends to ensuring that the acts or omissions of the employee do not adversely compromise the health and safety of another.

The FWC concluded that it was incumbent on Mr Harris to inform Securecorp of any pre‑existing medical conditions before commencing his employment. The nature of his security role necessitated, as a condition precedent to his employment, that Mr Harris divulge all information relevant to the employer in determining whether he was fit to undertake his security guard duties. His failure to do so both jeopardised the health and safety of fellow employees and deprived Securecorp of the right to adequately determine whether Mr Harris was a suitable candidate for the security role. The FWC found that this was an additional reason that justified dismissal.

‘Harsh, just and unreasonable’?

Evidently, there were a myriad of reasons that weighed decisively against the conclusion that Mr Harris’ dismissal was unfair. Pursuant to section 387 of the Fair Work Act 2009 (Cth), a dismissal will be ‘harsh, unjust or unreasonable’ in circumstances where the employer does not have a valid reason for dismissal and does not afford the employee procedural fairness. In Mr Harris’ case, it was unequivocal that his conduct satisfied the requisite standard of serious misconduct to warrant his dismissal. Likewise, given he was paid in lieu of notice of termination and provided an opportunity to respond, there was no issue of procedural fairness.

Conclusion

In summary, employers should carefully consider whether they are able to request that employees voluntarily disclose existing medical conditions prior to commencing employment. Often, this will be contingent on the industry the employee works in and the inherent requirements of a position. Although these requests are not without risk and can expose employers to discrimination complaints, employers should be mindful of whether the disclosure is clearly required to assess the prospective employee’s ability to perform the inherent requirements of the position.