Sacked for being Obese? Yes and No

A recent case in the Fair Work Commission demonstrates how employers can validly and fairly terminate an employee when the employee poses a health risk to others, and themselves.

Employers have the right to terminate an employee if they are unable to fulfil the inherent requirements of their role. However, prior to doing so, an employer must consider whether there are any reasonable adjustments it can make to accommodate for the injury/disability and/or any applicable state workers’ compensation legislation (if relevant).

In assessing an employee’s ability to fulfil the inherent requirements of a role, an employer may seek medical evidence from the employee to confirm that they are capable (or incapable) of returning to work. If an employee is not provided such opportunity, it may render the dismissal “harsh, unjust or unreasonable” according to the Fair Work Act as the employee may not have been afforded procedural fairness.

However, as the following case demonstrates, the provision of medical evidence by an employee will not always render a consequent dismissal unfair.

Ranui Parahi v Parmalat Australia Ltd [2015] FWC 7191

Mr Parahi (the Applicant) was employed as a Cool Room Operator with Parmalat Australia Ltd (Parmalat). As a Cool Room Operator, part of his role was to undertake forklift driving duties.

In February 2014, Parmalat engaged an external occupational therapist to conduct a manual handling hazard and risk assessment. The Applicant, who weighed 165kg, was considered to a have a medium to high risk assessment. In May 2014 the Applicant was again assessed (at Parmalat’s initiative) by a specialist occupational physician, who held that the Applicant’s weight was above the forklifts’ maximum weight safety ratings.

Due to the poor rating, Parmalat considered the Applicant was not fit for work, and stood him down. Parmalat informed the Applicant that he would be required to prove his fitness for duty before being able to return to work. He was told to follow a treatment plan to reduce his weight.

The following sequence of events then occurred:

25 July 2014 – the Applicant provided a medical certificate stating that he was “fully fit to work as a forklift driver”
10 January 2015 – the Applicant provided a medical certificate simply stating that he was “currently physically fit to work”
In February 2015, the Applicant was further assessed by Parmalat’s occupational physician, the results of which noted that his weight had in fact increased from 165kg to 175kgs. Furthermore, a cardiologist report indicated that the Applicant had sleep apnoea which would be problematic if operating machinery, such as a forklift.

Further correspondence was exchanged between the parties, with Parmalat inviting the Applicant to provide them with any information that may be relevant to the decision concerning his future employment.

No further evidence was provided at that time, and the Applicant (and his union representatives) did not attend a pre-arranged meeting with Parmalat on 26 May 2015. The Applicant was consequently dismissed later that day.

Following termination, the Applicant provided further medical information to Parmalat indicating he was fully fit to perform the role and that further, he was seeking a release of superannuation funds to undergo surgery to treat his obesity.

Was the dismissal fair?

The Fair Work Commission (FWC) held that Parmalat had a valid reason for the termination of the Applicant as he was unable to safely carry out the inherent requirement of the role. The FWC also considered that the Applicant had been afforded procedural fairness, and his ill-advised decision to not attend the meeting on 26 May 2015 was at his own peril.

Following the dismissal, the Applicant underwent the surgery and by July 2015 had shed 20 kg and was expected to lose more over the next 6-9 months. The FWC considered whether information brought to light after the dismissal (the further medical information and upcoming surgery) had any bearing on the dismissal.

However, it was held that:

“These post-dismissal developments notwithstanding, [Parmalat] was, I am bound to conclude, reasonably entitled to act on the information such as was available to it as of 26 May 2015 when the dismissal was effected”

Lesson for Employers

The above case demonstrates how an employer got it right, in that the employee was afforded procedural fairness by having an opportunity to provide medical information to the employer which may be relevant to their future employment.

Further, it demonstrates that information which comes to light following a dismissal will not render the dismissal harsh, unjust or unreasonable in circumstances where information was deliberately kept from the employer.

If you require assistance in relation to safety and the inherent requirements of a position at your workplace, or regarding dismissal risks, please contact HR Legal.

This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

Barry Lehrer

Having run my own small business for over twenty years, I understand one of the biggest challenges is protecting your business from potentially damaging personnel or HR issues. That’s why I developed Diffuze.