The Fair Work Commission has upheld the termination of a tram driver who engaged in serious misconduct by failing to disclose to his employer that he had suffered a serious medical condition that meant he was legally prohibited by legislation from performing his duties for a certain period.
The employee, Mr S, had been employed by Yarra Trams as a Tram Driver from 16 November 2000 until his termination, which took effect on 13 January 2022. Mr S was terminated because he failed to disclose on two separate occasions to medical practitioners that he had suffered a stroke.
On 8 July 2021, Mr S arrived at work but did not commence his shift as he was feeling unwell. One of the Depot Team Leaders asked if he was able to drive himself home, which he said he was. When he got home, his wife rang an ambulance, resulting in his admittance to the Royal Melbourne Hospital (RMH), where he was diagnosed as having suffered a stroke.
After three days in the Stroke Care Unit of the RMH, he was discharged on July 12 and provided with a medical certificate stating he could not drive and/or operate heavy machinery and would be unfit for work for a period of four weeks from 8 July until 5 August 2021. Upon his discharge, he was provided with a discharge summary from the hospital. There was clear evidence that he was advised soon after his admittance to RMH that he had suffered a stroke.
Under the terms of the National Standard for Health Assessment of Rail Safety Workers (the National Standard), Mr S’s position is referred to as a ‘safety critical worker’. The National Standard mandates that a person who suffers a stroke “should be categorised Temporarily Unfit for Duty for at least three months following a stroke”.
Following his return to work, Mr S did not disclose to his employer that he had suffered a stroke. He performed three shifts before being referred for a medical examination with Dr Altaf. He did not tell the doctor that he had suffered a stroke and was informed that he was fit to return to work, subject to a review in 2 weeks. He did consent to the doctor obtaining his discharge report from the RMH.
Mr S returned to work on 20 August 2021 and again drove trams between 20 August and 2 September 2021. In his two-week review on 3 September 2021, Dr Altaf referred to the discharge report and asked him if he was aware that he had suffered a stroke. He replied that he was. The doctor then advised him that he needed clearance from a neurologist to continue work.
On October 1 2021, Mr S attended a routine Category 1 Medical Assessment with Dr Turnbull that determined he was fit for work subject to wearing corrective eye lenses. Dr Turnbull’s evidence was that he had specifically asked Mr S if he had suffered a stroke and was told by him that he had not and had been discharged from the hospital.
In reviewing the witness appearances, Commissioner Tim Lee determined that both doctors were credible in their testimonies, more so than Mr S, and supported by contemporaneous notes.
In summary, the Commissioner noted,
“I am satisfied that the Applicant was trained in the requirements of the National Standard. He should have at least been aware of the requirement to notify Yarra Trams of any temporary or ongoing health condition or change in health status that is likely to affect his ability to perform his work safely and to provide complete and accurate information concerning his medical history to the assessing authorised health professional”.
Critically, Commissioner Lee noted,
“The Applicant’s lack of candour and his false and misleading statements made to the doctors breached his duty of good faith and fidelity to his employer, as did his misconduct in misleading his employer during the investigation … Mr (S) deliberately withheld the key information that he had a stroke and was on medication”.
The application was dismissed.
For queries about medical disclosures, serious misconduct allegations, conducting investigations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to firstname.lastname@example.org
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.