January 11 2017 - Being overweight has consequences in the workplace. There are associated occupational safety, health,
and business risks leading to more and more disputes between employers and employees.
According to Andrew Douglas, Macpherson Kelley's National Work Place Relations Practice Group Head, legal actions concerning overweight or obese Australian workers
are escalating at an alarming rate as employers try to manage risks associated with excessive weight in the workplace:
"These legal actions are coming from employees in the form of workers' compensation, unfair dismissal, and discrimination.
"These issues are flowing from employers trying to ensure the employee can safely perform their role, making adjustments so that they can perform the role and
where the employee refuses to work with the employer, termination."
Andrew Douglas says that common ground for such claims turns on an employer's responsibility for the health and wellbeing of employees and an employee's
responsibility to be able to perform
the requirements of their job and not pose a risk to themselves or their colleagues because of their weight.
"What we need to keep in mind is that nobody hires anybody who is unfit for work. When someone is no longer able to do the job that they are hired to do, and the employer can't
make the sort of adjustments that are necessary to assist them, issues like this arise and some sort of resolution is required.
"For example, say a forklift driver could not fit fully within forklift cage and turn around to navigate the forklift. The seat was also not made to withstand a weight of greater
than 145kg and there was no replacement seat available. The occupational obesity posed risks to the employee, other employees and, as he worked in large retailers where he loaded
merchandise, is a risk to the public."
Obesity is not a valid reason for dismissal under the Fair Work Act, unless an employer can demonstrate a pathway to assist an employee to be fit
for the inherent requirements of their work. Andrew Douglas concluded:
"OH&S is a very attractive law for managing issues of this nature. It has mutual obligations on the employee to be fit for work and the employer to make the workplace