LawTalk Blog

He was sacked for being too overweight

Sacked for being overweight

At Andersons, we work closely with many clients who have unfortunately lost their job for a variety of reasons. Often we consider that the reasons for the termination were harsh, unjust or unreasonable in the circumstances and we pursue a claim against the employer for ‘unfair dismissal’. The reasons for dismissal can be varied, from poor performance to constant lateness, to engaging in unsafe work practices, etc.

However, the Fair Work Commission recently had to decide the merits of an unusual case; is it fair for an employer to sack a worker for being too overweight?

Of course, like with every unfair dismissal application, the question of ‘fairness’ comes down to the individual circumstances of the case.

In the recent case (which garnered some national media attention) the worker in question was a forklift driver for a dairy business. He weighed over 160kg when his employer engaged an occupational therapist to assess the worker.

The occupational therapist found that the worker was of medium to high risk and concluded that the worker may be unable to work safely or competently because of his weight. The worker also suffered from severe sleep-apnoea which was taken into consideration because of the potential problems associated with driving heavy machinery whilst suffering from this condition.

"...the Commission dismissed the application on the basis that the employer had valid reasons to dismiss..."

The employer did not immediately dismiss the worker but rather stood the worker down for several months in the hope that the worker would lose enough weight to return to his duties. Unfortunately, during the time away from work, the worker gained weight and this led to the eventual termination of employment. The employer contended that they could not simply keep the job open indefinitely and there were no reasonable prospects of the worker returning to his duties in the foreseeable future.

The worker lodged an unfair dismissal application with the Fair Work Commission; however the Commission dismissed the application on the basis that the employer had valid reasons to dismiss the worker based on the worker’s incapacity to perform the inherent requirements of the job.

There were some other complicating factors associated with this case, including matters dealing with medical evidence, but it was determined that the employer acted fairly and gave the worker sufficient opportunities to demonstrate his capacity. The decision was not made lightly and the worker was consulted during the steps along the way before the termination.

Health professionals and the media often comment that Australia is experiencing an obesity epidemic, so this case is particularly important. It might become more commonplace for employers to discipline or terminate obese staff if the obesity is preventing the worker from performing the inherent requirements of the job, and posing a risk to themselves and/or others. However, if the decisions are unfair, they should be disputed without delay.

If you are experiencing problems in the workplace, or have been recently terminated under circumstances you believe to be unfair, feel free to get in touch directly with today’s blog writer.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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