Is It Legal To Get The Sack For Being Overweight?

The obesity epidemic is growing at an alarming rate and in Australia, over 63 per cent of adults are overweight. That’s 2 in 3 adults. With so many people carrying excess bulk, it’s not just a health issue, it’s an employment issue as well. In light of recent developments, we answer the question: is it legal to be sacked for being overweight?

Obese man measures himself image from Shutterstock

Obesity, and being overweight in general, is a by-product of our modern lifestyle and has become a polarising issue. There are numerous associated healthy risks for people who are carrying too much body fat and there is a strong push from the medical profession for larger individuals to shed that excess weight. But people don’t want to be “fat shamed” and there is currently a movement all about loving your body just the way it is. There are also people who legitimately have a medical condition which makes shedding the kilos extremely difficult.

Regardless of all that, one thing is for certain: the war on obesity is moving into the workplace. Australia has a growing population of overweight people which make up the country’s workforce. There are no hard and fast rules on whether employers are permitted to fire workers based on their weight but your boss is pretty much allowed to fire you for anything so long as it is within reason.

Under section 385 of the Fair Work Act 2009, a dismissal of an employee needs to satisfy the following:

  • Can’t be harsh, unjust or unreasonable. This includes discriminating against somebody based on sex, age, race and religion.
  • For small business employees, they have to comply with the Small Business Fair Dismissal Code.
  • The dismissal was not a case of a genuine redundancy.

If a dismissal doesn’t tick all the boxes above, then there is grounds for an unfair dismissal claim.

But while a person can’t be sacked just for being fat, they can be fired if their weight is inhibiting their ability to work in a particular job. Take a recent unfair dismissal case for example. A forklift driver, Ranui Parahi, sued his employer, Parmalat, for unfair dismissed because his employment was terminated based on his weight. The Fair Work Commission ruled in favour of Parmalat.

Why? Because Parmalat did its due diligence. The company tried to work with the now ex-employee to get his weight under control. At the time when Parmalat called in an occupational therapist, Parahi weighed 165kg and already had a number of health problems. After reviewing his medical reports, the therapist concluded that at his weight and current health, Parahi would not be able to safely and competently do his job.

Parahi swelled to 175kg during the review process. He was stood down for 10 months and eventually let go after Parahi failed to lose weight. The Fair Work Commission thought this action was reasonable and dismissed the case against Parmalat.

This case hit a nerve with the public because it showed that being overweight can not only affect your health, it can also affect your livelihood.

According to a blog by Andersons Solicitors:

It might become more commonplace for employers to discipline or terminate obese staff if the obesity is preventing the worker from performing the inherent requirements of the job, and posing a risk to themselves and/or others. However, if the decisions are unfair, they should be disputed without delay.

Employers are within their rights to require their workers to be healthy and suitable for the work they are performing. Having said that, the employer must demonstrated that they have done what they could to help the employee (e.g get their weight in check so they can safely carry on with their work) before dismissing them.

If you think you have been unfairly dismissed, you can lodge a case with the Fair Work Commission.

Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.

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