The dismissal of a fork-lift truck driver for being overweight has been held to be not unfair by the Fair Work Commission.
Facts
The dismissal of a fork-lift truck driver for being overweight has been held to be not unfair by the Fair Work Commission.
Mr Parahi was a cool room operator. An inherent requirement of his role was to drive a fork-lift truck. In May 2015 he was dismissed following a 15 month process, which had commenced in February 2014 following a routine manual handling hazard and risk assessment.
The safety rating for the operator of the fork-lift truck used in this role was to a maximum of 175 kg. In May 2014 Mr Parahi’s weight was 165 kg. He was also assessed by a cardiologist to have severe obstructive sleep apnoea, which posed risks in the operation of mobile machinery. In June 2014 he was stood down from work until such time as he was able, with medical advice, to manage his health issues until he was able to resume duties. Initially he was stood down with pay, but once his accrued leave entitlements were exhausted he remained employed by the Respondent without pay.
When reassessed in February 2015, Mr Pahari’s weight had increased to 175kg. The independent physician was of the view that Mr Pahari would only be able to do semi-sedentary work which did not require manual handling or use of mobile machinery. This was contrary to medical certificates from Mr Pahari’s own practitioner, which advised that he was fit to return to work. After being given an opportunity to show cause, he was dismissed on 26 May 2015.
The Decision
Commissioner McKenna held that there was a valid reason for the dismissal, because Mr Parahi’s weight made him objectively unable to perform the inherent requirements of the role, and because he had been given nearly a year to correct this issue and return to work. He had been notified of the reasons for dismissal, and been given an opportunity to respond.
The Commissioner also noted that Mr Pahari did not disclose at the time of the dismissal that he had sought the early release of superannuation funds to undergo surgery. By July 2015 he had shed 20kg and was expected to lose further weight over 6-9 months. By the time of the hearing his health situation was either resolved or resolving. However, these post dismissal developments aside, the Commissioner held that the Respondent was entitled to rely upon the information they had at the time of dismissal on 26 May 2016.
Whilst the Commissioner was ‘not unsympathetic’ to Mr Parahi’s circumstances, it was held that he had failed to establish that the dismissal was ‘harsh, unjust or unreasonable’.
