Australia: Obese employees and safe workplaces: is the fat lady singing?

Clayton Utz Insights
Last Updated: 20 September 2015
Article by Kathryn Winter and Anna Casellas

Most Read Contributor in Australia, August 2016

Key Points:

While future risks of health concerns directly related to an employee's weight cannot be used as a basis for termination, employers will be entitled to terminate an employee's employment where he or she is currently unable to perform their inherent requirements due to their weight, and where their weight creates an unacceptable level of risk.

In light of recent findings suggesting up to three in four mineworkers are overweight or obese, mining operations would be wise to consider the work health and safety implications of their employees' weight. But do the stringent safety laws affecting mines allow the termination of employment of obese workers?

The Queensland Industrial Relations Commission has recently upheld an employer's decision to terminate a mineworker's employment for being morbidly obese, confirming that employers' rights and obligations to ensure the safety of employees extend to the impact of overweight employees (BHP Coal Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 113).

Obesity as the reason for dismissal

At 176cm and around 160kg, Mr Bray had a BMI of more than 50 (the healthy BMI range for adults is 18.5 to 25). As a result of his weight, he could not walk on uneven ground or a reasonable distance, nor climb ladders or into machinery needed to perform the inherent requirements of his position. He also posed a significant risk to other employees in the event of an emergency, as his weight prevented him from carrying out emergency procedures and he would be extremely difficult to move if he became incapacitated.

For approximately two years he was on leave as a result of health problems, not all obesity-related.

In 2014 he was dismissed as a result of being unable to safely carry out his job without significant and foreseeable risk of injury, due to his obesity. Mr Bray then suffered from a Work-Related Stress, Depression and Adjustment Disorder, allegedly as a result of his termination, and made an application for workers' compensation.

Termination for obesity valid in this case

Ultimately Mr Bray's claim for compensation rested on the validity of the termination.

BHP relied on its obligations under the Coal Mining Safety and Health Act 1999 (Qld), arguing it had acted reasonably in terminating Mr Bray's employment because he could no longer satisfy the requirements of his position or the mines emergency and safety procedures.

During Mr Bray's two-year absence from work, his manager made regular contact with him to monitor his health and prospective return to work, including arranging frequent assessments by medical professionals paid for by BHP. Mr Bray however had often been difficult to contact, and displayed minimal interest in engaging in the process.

The Commission held that, while it was not ideal that he had received no express prior warning that termination was being considered, both Mr Bray and BHP had considered potential separation because of his lack of co-operation and the significant risks associated with returning to his position.

As such, BHP's termination of his employment was reasonable management action, taken in a reasonable way. The Commission therefore overturned the decision to award workers' compensation.

Other cases of obese mineworkers

This decision is not the first to consider termination of mineworkers because of their obesity.

In 2012 an obese mineworker was allowed to return to work after the Queensland Court of Appeal determined that the employer's statutory obligations did not cover risks of a worker developing an illness in the future. The 179cm, 163kg operator at Curragh was dismissed in 2012 after his employer conducted a health assessment under the Act. The health assessment found that his BMI of 50.8, and previous back and neck pain, made him permanently unfit to undertake his position. The employer formed the view that his obesity put the employee at significant risk of a sudden cardiac event, and was therefore unfit to undertake his position of operating large machinery at a coal mine.

The Court however reinstated the employee after determining that his size was not a restriction on his capacity to work as an operator. He was not subject to any physical restrictions which made him unfit to undertake his position, and the assessment under the Act did not require consideration of whether the employee may be at risk of developing a restriction in the future.

Managing an obese employee: lessons for employers

While these decisions resulted in opposing consequences for the employees concerned, the recent BHP decision sheds some light on when an employer may dismiss an employee on the basis of incapacity and safety considerations related to obesity.

While future risks of health concerns directly related to an employee's weight cannot be used as a basis for termination, employers will be entitled to terminate an employee's employment where he or she is currently unable to perform their inherent requirements due to their weight, and where their weight creates an unacceptable level of risk for the employer under the relevant State or Territory safety legislation.

However, there is an additional consideration for employers in the coal mine industry as their ability under the Act to require employees to submit to medical assessments outside of the statutory health assessment regime is limited.1 This means the focus needs to be on assessing the fitness of a worker to perform the inherent requirements of their position.

While this case assists employers in making a decision to dismiss an employee because of their weight, it still highlights the caution that needs to be used in managing these cases, including:

  • ensuring the inherent requirements of the position is documented;
  • ensuring that there is specialist medical advice regarding the ability of the employee to perform the inherent requirements of their position;
  • that the employer actively engages with the employee to (where possible) return to work, including looking at suitable duties and other available positions;
  • the focus must be on the employers duties and obligations under the applicable safety legislation, rather than a discriminatory reason such as the employee's weight (if a diagnosed medical condition);
  • compliance with disciplinary or termination procedure; and
  • ensuring that the process used to manage and dismiss the employee is fair in all of the circumstances and is well documented.

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Footnote

1Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242, CFMEU v North Goonyella Coal Mines Ltd (PR943615, 21 February 2004)

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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