Claims show companies are failing to manage obesity risk
December 30, 2016
Obesity in the workplace is triggering a record number of disputes as employers come to terms with an overweight Australia and its associated occupational safety, health, and business risks.
Andrew Douglas, Macpherson Kelley’s National Work Place Relations Practice Group Head, said that legal actions concerning overweight or obese workers in Australia are escalating at an alarming rate as employers seek to manage the 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,” said Mr Douglas
“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 “he said.
A common ground for these claims turns on the employer’s responsibility for the health and wellbeing of their employees and the 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,” he said.
However, a termination based on someone’s obesity would not be a valid reason under the Fair Work Act, unless the employer can demonstrate a pathway to assist a person to be fit for the inherent requirements of their work.
“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 safe,” added Mr Douglas.
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