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Dismissal is not inherently unfair

December 11, 2015


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


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 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.

HR Assured are workplace relations experts. We can help you to reduce this risk by providing pragmatic advice, tailored to the needs of your workplace. If you have an employee who cannot perform their job due to illness or injury, you should contact HR Assured for assistance.