28/10/2015

Two cases where employers justified their decisions to fire their overweight employees.

In the first case, Mr Bray weighed 160 kg and worked as a shift supervisor in a coal mine.  

Because of his weight he was unable to safely perform the physical duties of his role (such as walking on uneven ground over long distances, climbing ladders, repeated kneeling and squatting when performing tasks) without there being a significant risk of injury.

Due to health issues he took an extended period of leave from work for approximately 2 years.  During his time of absence the employer provided support to assist Mr Bray’s return to work.  The employer also paid for medical assessments and counselling for Mr Bray in an attempt to address any issues preventing Mr Bray from returning to work.

The medical assessments revealed an urgent concern at Mr Bray’s obesity problem, his inability to perform tasks required in his role, and the health and safety risk he posed to himself and other employees on site.  A Senior Site Executive of the employer also noted Mr Bray would find it difficult to act and assist his colleagues in an emergency situation.

With no indication of how long his absence from work would last, after discussions with Mr Bray broke down, the employer decided to terminate Mr Bray’s employment.

The decision to terminate Mr Bray was based on the health and safety risks if he was to return to work, given his weight issues; legislation reinforcing the health and safety of coal mine workers; and two years of very little progress of the health issues faced by Mr Bray.

In another case, Mr Pedersen was an overweight individual who worked in Golden Circle’s factory.  Medical assessors determined he was medically unfit to safely perform the duties required in his position (his duties included climbing stairs and heavy lifting).  The doctors determined that Mr Pedersen was only able to complete jobs with no regular physical activity, ie, one that required him seated at a desk all day.  There were no jobs of this nature available at Golden Circle and the employer subsequently notified Mr Pedersen of his termination.

Points to note:

• In both cases, the terminations were held as valid.
• Discrimination of an employee due to their weight or obesity is not prohibited under anti-discrimination laws.
• The important issues are, firstly, whether their health status permits them to carry out their role and, secondly, whether they would constitute a danger to their colleagues in the event of an emergency.

For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.