Workplaces can be risky environments and both employers and employees should take safety risks very seriously. Many safety risks are obvious, like operating machinery without the correct licence or working on a scorching hot summer’s day without sun protection and drinking water.
Did you hear about the worker who had his employment terminated because he weighed 160kg? Here’s why a worker’s obesity can not only be a risk to themselves, but also a risk to others on a work site and the employer.
The worker in question (let’s call him Barry) was employed as supervisor. Barry had up to 30 crew members working under his direction at any one time. His role was fairly physical and required the majority of time operating equipment, setting up gear, and moving around the crew area to supervise operations. He was also expected to act and assist his crew in an emergency situation.
After a few years working in this role, Barry took paid sick leave for an unrelated stress issue. Barry was also affected by other health issues relating to his weight. Barry provided his employer with medical certificates, however he was avoiding his employer’s lawful queries around his recovery progress, expected return to work date, and ability to perform the required duties of his role.
Poor Barry didn’t have the benefit of this article to know that was a bad move!
Barry’s employer decided to send Barry to their own independent medical doctor for an independent opinion on his condition. Many employers do not realise that directing an employee to attend a medical assessment can be a perfectly lawful and reasonable direction. An employer is entitled to do this so they can get a better understanding on a worker’s limitations and fitness for work. An employee who refuses to comply with such a reasonable direction could face disciplinary action.
The major concerns for Barry’s employer were his weight and his ability to operate safely in the work environment.
Over the next few months, the employer received reports from Barry’s treating doctors that he remained morbidly obese, and there were specific tasks in Barry’s role that he could not perform safely without significant and foreseeable risk of injury. Barry was limited in his ability to kneel, squat, climb or fit into certain vehicles. The doctors all agreed that significant weight loss would be necessary to reduce the risk of Barry slipping, tripping, or falling. The doctors also considered that in the event that Barry did slip, trip or fall, he would significantly impact the safety of his colleagues should they attempt to move him.
Barry’s employer continued to meet with him and discuss his return to work including the associated risks involved and to identify what measures (if any) he was taking to lose weight.
By this time two years had passed and the employer had spent over $40,000 on Barry’s doctor’s bills alone! The employer was also paying wages for Barry’s replacement while he was on leave. Overall a very expensive experience!
The employer decided to terminate Barry’s employment. The employer considered that Barry had been given plenty of chances to make an effort to return to the workplace.
Barry responded to this news by filing a compensation claim with WorkCover for a psychiatric injury arising out of his dismissal. Barry’s employer appealed WorkCover’s decision to accept Barry’s claim, arguing that its actions in terminating his employment were reasonable and undertaken in a reasonable way.
The court agreed with the employer that Barry’s termination was reasonable based on the facts and circumstances of the case. There was no connection between Barry’s psychiatric injury and the management action taken.
This case highlights how managing an employee’s absence can be both costly and time consuming for busy employers. Knowing what your rights and obligations are as an employer or employee can save you precious money and time.
Seeking legal advice from a solicitor who practises in employment law can help employers to understand how to take reasonable management action in a reasonable way, and help employees understand entitlements to sick leave and steps that should be taken to return to work. When it comes to WorkCover claims, “But I didn’t know” won’t wash as an excuse, and the last thing anyone wants is to deal with extra stress and expense when it could have been avoided.