Tribunal finds employer justified in terminating worker who hid medical history
The South Australian Employment Tribunal recently dealt with a case involving the termination of an apprentice's employment and a subsequent claim for compensation for an alleged psychiatric injury.
The worker argued his dismissal was unreasonable because he was young, inexperienced, and had fully recovered from his neck injury which did not affect his work performance. He claimed his non-disclosure was based on privacy concerns and fear of discrimination, not dishonesty. Following termination, he alleged he developed a psychiatric condition that left him incapacitated for work.
The employer countered that the worker breached their trust by deliberately concealing a recent significant medical procedure during pre-employment screening. They also argued the worker's mental health issues were likely caused by undisclosed substance use rather than the dismissal itself.
The worker was a 21-year-old who had completed school in 2022 and studied electrical work with interest in pursuing it as a career. Just before his 18th birthday, he injured his neck while wrestling with a friend. After seeing a doctor and having scans, it was revealed he had cracked a vertebra in his neck.
The worker underwent surgery on January 20, 2023, to fix screws to stabilise the fracture. The orthopaedic surgeon described the injury as a "C2 odontoid peg fracture" in a medical report.
In February 2023, the worker applied to become an apprentice linesman with SA Power Networks (SAPN). In his expression of interest, he described himself as "a truthful, trustworthy, and reliable character." After passing initial screening, he proceeded through several interview stages.
During the recruitment process, candidates completed a pre-employment medical questionnaire. When asked if he had ever had an operation or surgery, the worker ticked "Yes" and mentioned a knee procedure from three years prior. However, when asked whether he had ever sustained a neck injury or a disk injury in the back or neck, he ticked "No" for both questions, deliberately concealing his recent neck surgery.
In his evidence, the worker claimed he was concerned about discrimination and had been told by his parents that "he did not need to disclose it because he was fully recovered." He stated they agreed that if asked about the scar on his neck, he would say he cut himself while helping build an aluminium shed.
The worker's offer letter explicitly warned about providing false information: "If you provided … false or misleading information, including by omission, prior to the start of your employment, you will be the subject of disciplinary action up to and including your dismissal."
After starting work in May 2023, the worker's undisclosed neck surgery came to light when a colleague informed a supervisor about the injury. This triggered an investigation, including a review of his Facebook profile, which contained a post mentioning he had fractured his neck around his 18th birthday.
On August 15, 2023, just days before his three-month probationary period was to expire, the employer held a meeting with the worker and provided him with a show cause letter.
This letter stated: "We have received information that indicates that you were involved in a motor bike accident sometime in December 2022, which resulted in you injuring the C2 vertebrae in your neck to the extent that surgery was required. This is in direct contradiction to the advice you provided in your 5 April 2023 pre-employment medical examination."
In his written response, the worker clarified he was never in a motorbike accident but admitted to the neck injury from wrestling. He denied being deliberately dishonest: "I do not accept that I was deliberately false in my approach to the medical. I flatly deny that in any way I was attempting to hide any information from anyone. I am a very honest person as my Parents have been very tough on us."
The employer found this response inadequate and proceeded with termination on August 23, 2023, stating the worker "had not demonstrated the ability to adhere to its policies and procedures, including its Code of Conduct."
After being dismissed, the worker filed a workers' compensation claim under the Return to Work Act 2014, alleging a psychiatric injury caused by the termination. He reported symptoms including difficulty sleeping and loss of appetite.
His general practitioner certified him unfit to work due to "Mental breakdown following being badly treated by company in relation to his current job that lead to termination of his job."
Two psychiatrists independently diagnosed the worker with an adjustment disorder with depressed mood. However, the case became complicated when it emerged the worker had been using testosterone for bodybuilding, potentially starting before his dismissal.
During cross-examination, the worker gave inconsistent evidence about when he started using testosterone. He also acknowledged using marijuana daily and cocaine occasionally after his dismissal.
One psychiatrist, Dr. Schirripa, explained the potential effects of testosterone on mental health: "[Exogenous testosterone] can make people more aggressive, more irritable, and angrier, both in a verbal and physical sense... It also reduces serotonin use and availability in that part of the brain. As such it can impact on someone's depressive mood state, making them feel depressed and more anxious."
In April 2024, the worker experienced a psychotic episode with symptoms that a clinical psychologist noted appeared connected to his hormone use. When the psychologist "tried to suggest to him that the extra hormones that he had been taking were interfering with his brain patterns she said that he became mistrustful of her."
The Tribunal examined whether the employer's decision to terminate was reasonable. It noted the special legal status of apprenticeships under the South Australian Skill Act 2008, which prevents either party from unilaterally ending the contract after a three-month probationary period without official approval.
The Tribunal explained: "Under the Skills Act, which governed [the worker's] contract, once three months had elapsed since the contract began, neither party could unilaterally end the contact. Once that point has been reached, neither party can end the relationship without the approval of either the South Australian Skills Commission or the South Australian Employment Tribunal."
The worker argued the termination process was flawed, claiming the employer had predetermined the outcome and failed to properly consider his young age and lack of previous work experience.
The worker also contended that disclosing his fully recovered neck injury wasn't necessary as it didn't affect his ability to perform the job. His mother had testified that doctors told them "you do not have to disclose it as it is his private medical information and he is 100% clear and fit." However, both the orthopaedic surgeon and another doctor denied ever advising patients not to disclose medical history to potential employers.
The Tribunal rejected the worker's arguments, finding the employer had legitimate concerns about honesty rather than work capacity: "I accept [the manager's] evidence that he was motivated to dismiss [the worker] because he believed that he was dishonest and lacked integrity. In my opinion, he was acting reasonably in forming that view."
The Tribunal ultimately rejected the worker's compensation claim on three grounds: his psychiatric condition may have been caused by substance use rather than his dismissal, the termination itself was reasonable, and he failed to establish genuine work incapacity.
On the issue of causation, the Tribunal noted: "It leaves open the distinct possibility that the mental health issues that [the worker] experienced that led the psychiatrists to make diagnosis of an adjustment disorder with depressed mood, were not as a consequence of his dismissal, but were only a consequence of his drug use, and in particular his use of testosterone."
The Tribunal was particularly critical of the worker's response to the show cause letter: "What is notable about this is that [the worker] did not apologise to [the employer] for breaching their trust. His apology was limited to them feeling that way. This is no small matter of pedantics. My impression of [the worker] is that he never has accepted that his conscious decision not to disclose his neck injury and his neck surgery was wrong."
On the question of work incapacity, the Tribunal concluded: "I find that at least until when [the worker] saw Dr Shirripa on 23 October 2023, the only reason he was not working was because he was unable to work for [the employer] because he had been dismissed, and because he had not found a job anywhere else. In other words, he was not incapacitated for work. He had capacity for work, but was not exercising that capacity, because work was not available."
The Tribunal's final determination was: "For these reasons, [the] determination rejecting [the worker's] claim for compensation under the Act must be upheld. That application for review is dismissed."
