Commissioner backs firing for being too fat

Tuesday 8 December, 2015 | By: Default Admin | Tags: Fair Work Commission, unfair dismissal, obesity

The Fair Work Commission has backed a  company’s decision to sack an overweight employee because he posed a serious safety risk on the job.

The company even helped the employee address his obesity, standing him down to enable him to take steps to get fit. But, after 10 months, his weight actually increased and the company said he could not return to normal duties.

The Case

The man was formerly employed as a Cool Room Operator at a Parmalat Australia Ltd distribution centre in Sydney.

From his commencement of employment in 2009 until his dismissal on 26 May 2015, there were no issues with his performance or capacity – other than in the later stages of his employment with his alleged incapacity to perform his role which led to his dismissal.

In February 2014, Parmalat engaged an external team of occupational therapists and conducted a ‘manual handling hazard and risk assessment’ among its employees.

The man was considered to have a medium-to-high risk assessment due to his weight and associated medical issues, which raised concerns that he may not be able to safely and competently perform his role as an Operator.

At the date of this assessment, he weighed 165kg, which objectively excluded him from being able to operate the forklifts due to their maximum weight safety ratings.

Based on these results, Parmalat made the decision to stand him down until such time when he could prove his fitness for duty. A letter stated:

“We invite you to consult with your treating doctor/s and provide Parmalat with a documented treatment plan on how you will achieve the level of fitness required to carry out all of the inherent requirements of your role. Parmalat will also require an estimated timeframe for this plan to be completed.”

From June 2014 until the time of his dismissal, he was initially on a period of paid stand down; he then accessed his accrued paid leave entitlements, and when those were exhausted he remained on leave without pay.

Parmalat expected during the stand-down that he would take steps to manage his weight and health in accordance with medical advice, with a view to resuming duties as soon as possible.

However, when the occupational physician conducted a second assessment in February 2015, his weight had increased from 165kg to 175kg. A cardiologist’s report which was also considered in the assessment indicated that he had severe obstructive sleep apnoea which could pose a problem when operating mobile machinery.

The occupational physician concluded that the employee could only conduct ‘semi-sedentary-type work’ which did not require any heavy manual handling and operating mobile machinery, if this was available to him.

Parmalat wrote to its employee on 20 March 2015:

“From the medical evidence received Parmalat Australia have limited positive prognosis to achieve the level of fitness required for a return to normal duties, in the time since you have been stood aside.

Please be aware that Parmalat is not able to hold a position for you indefinitely especially since it is now 10 months since you were last able to carry out normal duties.

Given the information at hand that there is no positive prognosis for a return to normal duties in the foreseeable future, we believe it is appropriate to review your employment at Parmalat Australia.”

On 26 May 2015, the employee did not attend a set formal meeting with his union representative and a Parmalat Human Resources representative, to discuss his continuing employment at Parmalat. He also failed to provide a response in regards to his nonattendance and did not seek to reschedule the meeting either.

Subsequently, Parmalat proceeded to terminate employment. The employee lodged an unfair dismissal application.

The Decision

Commissioner Donna McKenna found that Parmalat did have a valid reason to dismiss him on the basis of his incapacity to perform the inherent requirements of his Operator position.

The Commissioner believed that as the employer allowed the employee approximately a year to medically address his weight and health issues before they made their decision, they ensured that he was fully aware of the concerns which lead to his termination and he was provided with an opportunity to address them.

The Commissioner did point out that the man was seeking to have surgery to address his obesity around the same time as his dismissal. Having previously been unable to afford the costs, he sought the early release of his superannuation in order to undergo the surgery. As a result of this procedure, he did shed 20kg over June and July 2015, and was expected to continue to lose weight over the coming 6-9 months.

Despite this, the man failed to inform his employer of his plan to undergo the surgery prior to his dismissal. Commissioner McKenna therefore concluded that Parmalat was reasonably entitled to act only on the information which was available at the time of dismissal.

Whilst not unsympathetic to his circumstances, Commissioner McKenna was not satisfied that the dismissal was harsh, unjust or unreasonable.

Parahi v Parmalat Australia Ltd [2015] FWC 7191 (5 November 2015)

CCIQ Viewpoint

When an employee is ill, injured or otherwise incapable of performing the inherent requirements of their role, you need to carefully consider all options that are reasonably available to them in regards to rehabilitation, reasonable adjustments and redeployment.

It is always best practice to undertake an independent medical assessment provided for by the business, to ensure that you are receiving medical advice directly related to your workplace and the individual’s specific role.

CCIQ encourages its member to contact the Employer Assistance Team with any enquiries of this nature, to help ensure that you are taking all reasonable measures to support your employees and their ability to perform their role. Phone on 1300 731 988 or email advice@cciq.com.au

CCIQ Corporate Partners – ARTIUS         

CCIQ partners with Artius, a Queensland firm which offers a complete corporate health service with a team of occupational therapists, physiotherapists, psychologists, and other allied health professionals.

Artius will conduct a ‘Functional Capacity Evaluation’ to assess the equipment, surroundings, operations and individual employees within your business; similar to the process used in this case.

Contact Artius to find out how they can help you on 1300 ARTIUS (1300 278 487)

DISCLAIMER: This document is an information source only. Despite our best efforts, CCIQ makes no statements, representations or warranties about the accuracy or completeness of the information and disclaims responsibility for all liability for all loss or damage you might incur as a result of the information being inaccurate or incomplete in any way, and for any reason. The information contained in this document is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.

 

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