NSW Conditional Employment Offer - Injury, Disease Condition?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

Cindy Wong

14 September 2014
I would very much appreciate your advice on the following:

I have entered into an Employment Contract about a year ago which stipulates that the offer was made under the condition that I'm not affected by any injury, disease, etc., i.e. any condition that will prevent me from performing my duties. Question #1: Under Australian labour law, is this at all legal?

It said further that I would need to speak to HR in case I wasn't sure, so that the company could make a proper assessment via medical examination, etc. Question #2: Would they have had the right to request this?

The unfortunate situation is that I have recently been diagnosed with a chronic disease requiring treatment which may temporarily affect my performance. As part of the disease management plan and as per advice from the physician, it is best to disclose my condition to my employer which I am planning to do asap. Question #3: From a legal perspective and based on Australian labour law, what is the worst case scenario that might occur? Is the company at all in a position to breach their contractual obligations, enter into dispute, etc.?

For clarification purposes, my employer has 457 visa sponsorship for a period of 4 years.

Looking forward to getting some advise in these rather delicate circumstances. Thank you for your support in advance!

Sarah J

Well-Known Member
16 July 2014
Melbourne, Victoria
Hi Cindy,

I would suggest contacting the Fair Work Ombudsman and enquiring about this condition. They are a free service and specialise in Employment regulations and industry standards.

Generally, employers are not allowed to discriminate on the basis of a disability. However, there are exceptions if the employer can substantiate a professional/industry necessity as to why the position/work will suit a person of disability. The employer will also need to define the types of disabilities that may affect proper carrying out of the position/work. Is it physical or mental? And what types of physical and/or mental disabilities will affect the position/work and how.

However, I am unsure about requirements under the 457 sponsorship visa. I imagine if an employer is putting up money (as the sponsorship can be quite expensive an investment) and satisfying lots of red tape to sponsor a particular individual, the requirements on that individual would be higher than on local employees/applicants. As to whether this extends to fair opportunity, I am unclear and hopefully someone else on this forum will be better suited to answer your question.

In any case, give the Fair Work Ombudsman a call.