Posted on: Apr 05, 2013
An employer who dismissed an employee for failing to disclose a medical condition that could have affected his employment was held to have good grounds for terminating the employee’s employment.
Mr Cook was employed by Allied Investments Ltd as a security officer working at night in a large factory using dangerous chemicals. As part of the recruitment process, Mr Cook was required to complete an application form for employment which required that he disclose “any physical, medical, or other condition which may affect how you do the job you have applied for” and specifically asked the employee if he had any of a number of medical conditions including “nervous disorder/anxiety”. Mr Cook was also asked to state any other injury or illness that he had suffered that might affect his ability to perform tasks and discharge the responsibilities of the position applied for. Mr Cook denied that he had any relevant physical, medical or other condition and warranted that he had provided truthful answers.
After a few weeks of employment, Mr Cook became unwell. It transpired that Mr Cook had two mental health conditions. Allied terminated Mr Cook’s employment because of his failure to disclose relevant matters prior to employment. Mr Cook brought a personal grievance for unjustified dismissal and claimed that the questions in the application form breached the Privacy Act 1993 and the Human Rights Act 1993 and said he was under no obligation to disclose his condition. Allied denied any breach of either Act and argued that Mr Cook’s medical condition was relevant to his safety and the safety of other employees in the workplace and to its obligation with its client. The Employment Relations Authority agreed with Allied and said it was entitled to terminate Mr Cook’s employment for his failure to disclose particulars of his health that were relevant to his employment. It also noted that Mr Cook owed and had breached an obligation of good faith under the Employment Relations Act 2000. Procedural inadequacies in the manner of Mr Cook’s dismissal meant, however, that it was held to be unjustified, though the Authority also held that he was not entitled to any remedies because he had contributed 100% to the circumstances giving rise to his dismissal.
This determination (Cook v Allied Investments Ltd  NZERA Auckland 426) can be distinguished from Imperial Enterprises Ltd v Attwood (2003) 7 NZELC 97,009 (EC) in which the Employment Court held that a question in a pre-employment application form, asking the applicant to disclose any medical conditions, was discriminatory because it discriminated on the grounds of a disability and was in breach of the Human Rights Act. The Court said that an employee was not required to give details of illnesses not relevant to her proposed job in response to a question in a pre-employment form, “Do you have any medical problems of any kind?”. It said that the question was far too wide and its purpose was not clear. The employer was entitled to ask for information relevant to its health and safety obligations but not for general medical information. It said the employer was only entitled to ask for information that would affect the employee’s ability to do the job or that would affect the ability of other employees. In the Allied Investments case, Mr Cook’s illness was relevant to his ability to do the job safely.
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