In a rare win for employers, the Fair Work Commission (FWC) has found that the decision to terminate an obese employee was not unfair as his weight created a risk to work health and safety.

Background

The applicant lodged a claim for unfair dismissal after he was dismissed from his job as a Cool Room Operator at a distribution centre. He had been dismissed following fear that he may not be able to safely and competently perform his job. At one stage the applicants’ weight had precluded him from operating the forklifts due to the forklifts’ maximum weight safety rating.

Capacity review

As part of the employers capacity review process the applicant was stood-down and informed that he would be required to prove his fitness for duty before returning to work. During the stand down period he utilised all accrued paid leave entitlements and was granted approximately 10 months of unpaid leave when these were exhausted. The employer anticipated that during this period the employee would take steps concerning his weight and health management with a view to a resumption of duties. Regrettably, this did not occur.

Termination decision

Supported by medical evidence, including a cardiologist’s report and two assessments conducted occupational physicians, the employer decided that the employee could not perform the inherent requirements of his job and elected to dismiss the employee.

Was this harsh, unjust or unreasonable?

In determining whether the applicant’s dismissal was harsh, unjust or unreasonable, the FWC acknowledged that there was a valid reason for dismissal related to the applicant’s incapacity to perform the inherent requirements of his position. The fact that the decision to dismiss the applicant had been made approximately a year after the applicant was stood-down demonstrated the employers intention to return to the applicant to work. The applicant had also been afforded an opportunity to respond to the concerns regarding his capacity and the employer had notified the applicant of the reason for the dismissal when advising him of the termination of his employment.

What does this means for your business?

Whether an employee can perform the inherent requirements of their job is a complicated question. Any decision to dismiss an employee for lack of capacity must be based on the sound evidence provided by a qualified medical practitioner following a proper assessment of the employee’s capacity to perform their required tasks and duties.

Any dismissal involving an employee who has a disability or who is experiencing issues associated with illness or injury is inherently fraught with risk, particularly in relation to discrimination issues.

The Telephone Advisory Service at HR Assured was set up to provide real human advice, available 24/7. On a daily basis, the Telephone Advisory Service handles queries from employers who feel they have every reason to sack somebody – but want to check that any termination is handled in a way consistent with employment law.

When it comes to employee management and workplace safety, think of HR Assured as just another part of your business.

If terminating an employee has been on your mind, please reach out to our experts via our 24/7 Telephone Advisory Service.