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Law Talk: your duty to disclose

Law Talk: your duty to disclose

ANMF (Vic Branch) Workplace Behaviours and Discrimination Officer Kirrily Buckett

An important component of personal wellbeing can be accessing support for your physical, mental and emotional health, including at the workplace. This can, and arguably should, involve talking with your manager or colleagues.

However, there are some important things to consider when sharing personal information, including medical information, with others in your workplace.

There are also important things to know in relation to being asked personal information, whether it be by a manager or colleague, or via a workplace form, such as a pre-employment screening form.

Your duty to disclose

You have an obligation under the Occupational Health and Safety Act 2004 (Vic) to disclose any medical condition that may be affecting your ability to perform the inherent or reasonable and genuine requirements of your role. You are obligated to share no more.

A first step would be to discuss exactly what this looks like for you with your treating medical practitioners. Another is seeking ANMF advice.

Discriminatory information

It is important to note that S.107 of the Equal Opportunity Act 2010 (Vic) prohibits the requesting of potentially discriminatory information.

So, if you are uncomfortable about any documents you have been asked to sign, or information verbally requested, ask for time to consider and respond, and seek ANMF advice.

When else do I disclose? Or not?

You need to disclose certain medical information if you wish to request a reasonable adjustment to enable you to continue to fulfil your role while living with an illness/injury. ANMF can advise on what form that information can take. It will focus on what modifications are needed, why, how they will be of benefit, and timelines of any continuing treatment/reviews.

Unless it affects your ability to perform the inherent requirements of your role at the time, you are not required to disclose a pre-existing illness or injury at the time of commencing employment. However, if the employer requests you to disclose it, and you do not disclose, any recurrence, aggravation, acceleration, exacerbation or deterioration of the pre-existing injury or disease as a result of employment will not entitle you to claim Worker’s Compensation, under s.41 of the Workplace Rehabilitation and Compensation Act 2013 (Vic).

In this case, seek ANMF advice about the employer’s right to request this information.

What if I get asked?

Some of our members disclose information inadvertently in informal chats. If your manager wishes to discuss any concerns with you, request sufficient time to prepare, seek ANMF and other advice, and ask that they notify you in writing what the meeting is going to be about.

Taking colleagues into your confidence

We have a number of members who contact us who feel that their confidence has been betrayed by a colleague to whom they have confided in the workplace.

Malicious gossip may be actionable as bullying and harassment, or a breach of the workplace Code of Conduct.

Your colleague’s duty

However their actions may not be malicious, or wholly malicious; the colleague may feel they have a duty to report or action any information given to them that suggests you are unfit to fulfil the inherent requirements of your role.

What does this mean?

It means that the workplace may lawfully begin a fitness for work process to gain further information about your ability to fulfil the inherent requirements of your role, or be in a position to give a lawful and reasonable direction to provide medical information and/or attend an Independent Medical Examination.

So, in summary, be careful. It may be prudent to seek further support for certain issues outside the immediate workplace environment. Seek advice from health professionals and/or the ANMF if you are unsure about where and how to get any support you need.

What do I do as a manager if a colleague wants to talk to me?

Follow general practices of procedural fairness. Allocate a suitable time and place to talk. Remain calm and objective. Be an active listener. Ensure both/all parties are on the same page about what the meeting will be about, and keep to that. Take notes, and follow up in writing where required. At the beginning of the conversation, “warn” them of your duty as necessary, but otherwise be mindful of principles of confidentiality, and assure your colleague of this also when you talk to them.