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Can you retract a job offer after a medical assessment?

Are there grounds for a complaint from the candidate in this circumstance?
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Can you retract a job offer after a medical assessment?

Can you retract a job offer after a medical assessment?

19 February 2020

Can we withdraw a job offer if the results of a medical assessment are unsatisfactory? Are there grounds for complaints in such circumstances?
Our Workplace Advice Line recently received this question from a Workplace Assured subscriber.

We have an applicant for a position that underwent a medical assessment as part of the recruitment process.

The person appears to have the necessary experience and qualifications for the position and we expected to hire the person.

It was made clear to the person that the offer of employment was conditional upon her satisfactorily completing the pre-employment medical examination.

The doctor’s advice subsequent to the medical examination was that the employee was not fit for the prescribed duties.

We have withdrawn the offer of employment, however, the person has indicated she will make either an unlawful termination of employment application or lodge a claim under the state (NSW) anti-discrimination legislation.

Can she take such action despite not being employed by the company; and, is the company potentially in breach of the Fair Work Act 2009 or discrimination legislation?

The employer would need to be aware that a claim of adverse action (refusing to employ the person) under the general protections provisions of the Fair Work Act is possible because prospective employees are taken to have workplace rights under the Act (s342(1)).
The employer could successfully rebut the person’s allegation if the reason not to offer employment to the person was due to her incapacity in performing the inherent requirements of the job, as advised by the doctor who conducted the medical examination.

Disability discrimination?

Broadly speaking, disability-based adverse action claims made by a prospective employee are unlikely to be successful unless the employee is able to demonstrate that adverse action was taken because of the disability itself.

It appears that an employer will not breach the prohibition on taking adverse action based on the employee’s physical disability if the action is due to the consequences of the disability, the prospective employee cannot perform the inherent requirements of the job for example. See: Hodkinson v Commonwealth [2011] FMCA 171.

If a claim is lodged, FWC must conduct mediation or conciliation, or by making a recommendation or expressing an opinion, advising the parties whether it considers that the claim would not have a reasonable chance of success before a court. It should be noted that a reverse onus of proof applies in general protections matters before a court (eg Federal Magistrates Court (s361)).

Onus on employer

This means the employer must rebut the allegation, on the balance of probabilities, that the reason the company’s failure to offer employment to the person was not based on discriminatory grounds.

If the medical issues discovered in the medical examination are not relevant to the offered position, or would not prevent the person from performing the inherent requirements of the job, the company may be in breach of the Fair Work Act.

Another remedy?

Anti-discrimination legislation may state that the discrimination tribunal may decline a complaint if another more appropriate remedy has been, is being, or should be, pursued by another body. For example, a complaint about an employee’s poor performance would not prevent a successful complaint to an anti-discrimination tribunal if the second complaint was for a different reason not dealt with in the first complaint (eg the withdrawal of the offer of employment was based on racist grounds). See: Deva v University of Western Sydney [2008] NSWCA 137.

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