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Obese worker fails to establish adverse action claim

The Federal Circuit Court has rejected that a security company took adverse action against an obese security guard (‘Applicant’), after the worker claimed he had been discriminated against because of his obesity.

The Applicant was engaged to work in a control room at a university campus.  As a result of proven performance concerns, the University requested that the Employer remove the Applicant from their campus.  The Employer then sought to move the Applicant to another location.

The Applicant refused to accept a transfer to one of the other positions unless those positions paid him nearly $50,000 more than his salary at the time, in order to cover additional travel costs.  When the Applicant refused to nominate which site, he wanted to attend out of the three options offered to him, the Employer directed him to attend one particular site.  The Applicant refused to attend, citing that he would not attend because he would not be compensated for travel costs, and he could not physically perform the roles, which involved walking more than 5 minutes every hour.  He also claimed that his exit from the University had been orchestrated by the Employer, because he had opposed the introduction of a new enterprise agreement, and because he had sought to have a previous enterprise agreement terminated.

Whilst there was a number of issues in this case, relative to the Applicant’s claim that he was discriminated against because of his obesity, Judge McNab noted that the job advertisement that was the basis on which the Applicant applied for the position said that the Employer sought applicants with high fitness levels and who were able to work in a number of scenarios.  Judge McNab noted that as a security guard, the Applicant’s job was not limited to being a control room operator in a specific location.

Judge McNab subsequently found that when the Applicant rejected the alternative positions because his travel expenses were not covered, and because he had to walk for more than five minutes every hour, this inevitably meant that the Employer had no more work to offer him, and his contract was terminated.  Judge McNab was not satisfied that the Employer had taken adverse action against the Applicant because of his obesity, nor had it taken adverse action because of the industrial action taken by the Applicant.

Lisa Aitken is an Accredited Specialist in Workplace Relations Law and the Managing Director of Aitken Legal, a law firm specialising in employment law for employers. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation. www.aitkenlegal.com.au.