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FWC upholds dismissal of overweight worker

AREEA senior workplace policy adviser, Lisa Matthews, reviews lessons from a recent Fair Work Commission decision which found a drinks manufacturer had a valid reason to dismiss a former cool room operator on the basis of his incapacity to perform the inherent requirements of the role given his weight and related health issues.

Lisa Matthews
Lisa Matthews

IN her 5 November 2015 decision, Commissioner Donna McKenna found it was reasonable for Parmalat Australia Ltd to rely on an assessment made by an occupational physician conducted several months earlier to decide to terminate the man’s employment.

The background to the case was that in February 2014, the applicant and other employees had completed a manual handling hazard and risk assessment conducted by an external occupational therapist. The applicant received a “medium-to-high” risk assessment, raising concerns he could not safely and competently perform his role. His role included forklift driving and manual handling.

At the time of the initial assessment, the man weighed 165kg. Following that he was stood down firstly on pay and later without pay pending his ability to prove he was fit for duty before returning to work.

When the occupational physician conducted a second assessment 12 months later in February 2015, the man’s weight had increased from 165kgs to 175kgs. A cardiologist’s report stated he also had severe obstructive sleep apnoea that could pose problems in operating mobile machinery.

The man’s weight also objectively precluded him from operating a forklift due to the forklift’s maximum weight safety ratings, despite his production of a medical certificate from his general practitioner saying he was fit to operate one.

At all times leading up to his dismissal the man was given opportunities to respond to the company’s findings and correspondence, and it was more than 12 months between his initial assessment and termination of employment, during which time he had the opportunity to improve his fitness and return to work.

Implications for AREEA members

The FWC found the company’s swift move to terminate the man’s employment following his and his union’s non-attendance at a scheduled meeting without explanation might in other circumstances have weighed against the fairness of the dismissal.

However, in this case, given the applicant’s “tardy” provision or non-provision of information and documents, the company’s “peremptory” issuing of the termination letter did not lead the commissioner to make conclusions adverse to the company’s case.

The commissioner also found the company’s HR department was not obligated to conduct a third assessment immediately prior to terminating his employment, with the company entitled to rely on the earlier two assessments in concluding that a successful return to work was unlikely to be feasible.

To view the decision, click here.

For advice on managing employee health and safety and potential risks in the workplace, please contact your local AREEA employee relations consultant.

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