The Fair Work Commission has ruled an obese forklift driver was fairly dismissed because his weight created a workplace safety issue.
Ranui Parahi worked as a cool room operator for dairy business Parmalat and weighed 165 kilograms when Parmalat called in an occupational therapist to assess Parahi and other employees.
The occupational therapist found Parahi was of "medium to high risk" and raised concerns he may not be able to safely and competently perform his role as a result of his weight.
Parahi's weight exceeded the forklift's maximum weight safety ratings and by the time of a second assessment it increased to 175 kilograms.
The occupational therapist took into account a cardiologist's report which indicated Parahi had "severe obstructive sleep apnoea that may pose a problem with operating mobile machinery". The occupational therapist advised Parahi should only conduct "semi-sedentary-type work" which did not require any heavy manual handling or operating mobile machinery for full-time hours.
Parmalat stood Parahi down in February 2014 for 10 months. He was partially paid for some of this time and Parmalat dismissed him in May 2015 noting "Parmalat is not able to hold a position for you indefinitely" and "there is no positive prognosis for a return to normal duties in the forseeable future".
Valid reason for dismissal
Parahi, who worked at a distribution centre in suburban Sydney, claimed he had been unfairly dismissed, however the Fair Work Commission found Parmalat did not have to arrange further assessments before sacking Parahi.
"It was incumbent upon [Parahi] to provided to [Parmalat] in a timely way, any relevant, current information to inform any decision-making concerning [Parahi]," the Fair Work Commission found.
Parahi also claimed at the time of his dismissal he was seeking surgery concerning his obesity but he did not disclose this to Parmalat or even to his union representatives.
After having surgery in June 2015 Parahi lost 20 kilograms and was expected to keep losing weight which would resolve his health problems but the Fair Work Commission said this did not change its view.
"There was a valid reason to dismiss [Parahi] on the basis of the [Parahi's] incapacity concerning the inherent requirements of his position," the Fair Work Commission found.
An increasingly common situation
Rachel Drew, employment law specialist at TressCox Lawyers, says with obesity increasing concerns about health and safety are likely to be a situation more commonly faced by businesses.
Employers are entitled to require their employees are generally fit and well and suitable for the work they are performing.Rachel Drew, TressCox Lawyers
"Employers are entitled to require their employees are generally fit and well and suitable for the work they are performing," she says.
Drew says key to the Fair Work Commission's findings was that Parmalat undertook a thorough consultation process before sacking Parahi.
"The employer didn't just make a decision and enact it in a short period of time, they undertook a long period of consultation with the worker," she says. "What has protected the employer in this case is they have engaged in that process."
Parmalat did not respond to a request for comment prior to publication.