Job interviews, including questionnaires and job application forms, often include a question about previous work injury claims. Applicants are often not sure whether these questions need to be answered.
It is not illegal for an employer to ask about your previous work injury claims. However, it is illegal for the employer to then refuse to hire you because you have had a work injury claim. Job applicants are protected as prospective employees under the Fair Work Act, which operates to ensure a worker is not unfairly treated or discriminated against on an unlawful basis. In practice it can be very hard to enforce this, as the employer can argue they decided not to hire you for any number of other legal reasons besides your claims history.
Employers have a legitimate interest in asking about your previous injuries, as certain health issues can affect your ability to safely perform the job.
The High Court has found that employers can investigate if it is a requirement for the job that they are applying for and in regards to health and safety. If you are asked to complete a pre employment medical and the doctor asks you for existing or previous injuries, you should disclose them. You don’t necessarily have to disclose if you have or have had a workers compensation claim or other type of claim.
McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826
Facsimile: (02) 9687 8114 (02) 9687 8114
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