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FWC finds obese employee fairly dismissed

In a recent decision by the Fair Work Commission, an obese employee’s unfair dismissal application was dismissed after the employer established that the employee’s obesity and associated medical conditions meant that the employee could no longer perform the inherent requirements of his role.

The employee was stood down following a manual handling hazard and risk assessment conducted by an independent occupational therapist in February 2014.  The employee was assessed as having a ‘medium-to-high risk assessment raising concern that he may not be able to safely and competently perform his role’.  It was noted at the time of assessment that the employee weighed 165kg and his weight ‘objectively precluded him from operating the forklifts due to the forklifts maximum weight safety ratings’.

The employee was stood down and asked to consult with his doctor to obtain a documented treatment plan as to how he would reach the fitness level required to perform the role.  At a second assessment in February 2015, the employee was found to weigh 175kg.  Medical evidence also revealed a further medical condition that was considered to potentially pose a problem to any operation of mobile machinery.

Following the second assessment there was a lengthy process of communications and meetings between the employee and the employer.  The employee was eventually dismissed on 26 May 2015, following the non- at an arranged meeting with the employer.  The reason for the dismissal was that the employee could not perform the inherent requirements of the role.

The Commission accepted that the employee’s weight condition and associated medical conditions meant that the employee could not perform the inherent requirements of the role, and that was a valid reason for the dismissal.  The Commission was also content that the process followed by the employer in the circumstances was fair and reasonable.  Consequently, the application was dismissed.

Lessons for Employers

Obesity as a medical condition is a growing concern for many employers.  Where an employer is concerned about the prohibitive effects of obesity in its workplace, it should seek legal advice before acting against an employee.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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