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.


Comments

    2 in 3? Jesus...

      It's overweight based on BMI. BMI puts me at borderline obese, which...yeah. You know what I look like.

        I'm 185cm's, and for well over 20 years have been 100kgs or more. Ballooned out to 125kgs for a brief period, got it under control, and these days it tends to hover from 100-102kgs.

        Which puts me borderline obese. Like you, you wouldnt make that call looking at me, I'm just broad shouldered. Theres a little middle age spread going on, but I can see my belt buckle

        Rewind to when I first hit that weight, I was a first grade sportsman, and able to run the city to surf under an hour,

        I'm also a diabetic, and when talking to the doctors they made the comment that BMI isnt really all its cracked up to be anyway. They tend to go off waist measurement these days, a far simpler method. For guys, anything under (I think) 95cm is fine, anything over you need to work on it. I sit on 97cms, which given I'm mid 40's isnt terrible.

          Every waist is a bit off at times. I'm 180cm and waist of 87cm I could probably do to loose a few kg.

      Yeah... according to the accepted knowledge, a 200cm tall person weighing 100kg is overweight, and 120kg is obese. The bottom band for a healthy weight is 75kg, and the last time I weighed that amount I was undergoing chemotherapy.

        201cm here with a fairly big frame. Unless I've got a lot of muscle I'm a little overweight at 100kg - not that anyone would really notice, but a long way from a sixpack. By 110 I'm clearly overweight even with a bit of muscle. around 90kg I'm probably healthiest, but I like beer and cheese too much to hit that point anymore. I assumed the recommended weights were kind of a joke until I got back them as an adult.

        Healthy weights vary dramatically from person to person depending on frame and musculature and a pile of environmental factors, but recommended weights are still a decent guideline: You may skew above or below but if you vary too far you might want to make sure you're on the right path.

        That said, 200cm is freakishly tall and probably safe to ignore as a statistical anomaly. ;)

    Huge ups to Parmalat for doing the right thing there.

    I have always found it very concerning to see how many nurses in our hospitals...that is... tertiary qualified medically trained health professionals ...are fat...sorry... overweight, obese, or morbidly obese.
    And orderlys.... you spend all your day pushing patients from one end of a large hospital to the other... yet somehow you're the size of an ambulance.

    I don't understand why people don't care about their health. I'm not a fitness fanatic (very slightly overweight) but I like to keep active and love having energy.. being able to walk up hills without exhaustion and things like that. You only have one body, why not invest in yourself a bit?

      High-energy foods give the brain a dopamine rush. Not only is it unsurprising that we get addicted to sugars, it's a bit surprising that we ever get more addicted to anything else!

        This is a good point. Obesity is officially a national and even an international epidemic and the culprits are big corporations that put way too much sugar and salt in their processed foods because they know it will sell more product. Parmalat is one of tose corporations "http://www.parmalat.com.au/brand/". Having said that, the dude was fat and obviously a risk of being a financial burden to the company.

          I support a small health-tax on particularly unhealthy foods, to offset the social harm, but I doubt this could happen because of the dairy industry.

          I stop well short of holding food companies culpable, because society has not sought to control calorific content, so it's ridiculous to damn food companies for also not caring. In fact, imagine the outcry if Dominoes *did* refuse service to fatties!

          Conversely, I do hold the fat-acceptance movement culpable. I see no moral difference between seeking to socially normalize obesity and seeking to socially normalize smoking.

            I fully agree, it is crazy this whole normalizing of obesity, I've seen it all over facebook recently obese women posting photos that people are overwhelmingly calling "beautiful". We shouldn't be encouraging any of this as a society.

            Also, people love to pass the blame and not take responsibility for their own choices, it really isn't hard to have a little self control and eat junk in moderation, control your portions etc.

      If you don't value yourself, or loathe or hate yourself, then it's seen as a bad investment.

        Unless you're a company which cashes in on those specific things: sugar, materialism. In that case, you're seen as a good investment and easily hooked.

    I can't sleep with your "great personality". So lose the weight

      I didn't think that women (or men, I don't judge) would intentionally put on weight to keep the assholes away, but your comment has made me doubtful.

    Dunno if this will be answered but I'll ask anyway: are employers allowed to advertise positions that specifically require certain body types? I remember recently there was some female fitness cloth company that was trying to hire a receptionist and they wanted someone thin and athletic. Unsurprisingly, the usual outrage enthusiasts jumped all over the company and accused them of body shaming.

    It seemed reasonable to me that a company that specialises in fitness wouldn't want a rotund individual to be the first person people saw as they entered the building.

      Not quite what you were getting at, but there's definitely jobs with advertised and enforced weight limits.
      Bus drivers, for one: the drivers' seats have maximum weight ratings and drivers who go over those will be encouraged and assisted to lose weight, but fired if they can't or won't.

      You kinda can but technically can't. You just don't hire them but you don't say it's cause they're fat. They just don't fit the image your company is trying to convey. Same as the guy with face tatts trying for a job at a daycare.

        When I was running a largish liquor retail outlet and responsible for the hiring (and unfortunately the occasional firing) of storemen and the delivery driver, obesity was a definite no-no, but it could never be given as the reason. Roles with moderate physical demands aren't suitable for anyone who appears to either avoid physical exertion at all costs, or be too stupid to realise that drinking Coke instead of water for hydration is adversely affecting their health. I'd also offer interviewees a cigarette after our meeting then promptly receive an important phone call that couldn't wait, as smokers weren't high on my list either.

    That was Lorna Jane, and the position was actually a dual role: receptionist and fit model. The job of a fit model is the try on the clothes they're developing to make sure they fit properly and are comfortable etc. That's why they specified a certain size. Apparently being a fit model isn't a full time job, but they need them available full time which is why they employ them as a receptionist as well.

    FWIW, plus size clothing stores employ fit models as well, but interestingly they don't attract the same contraversy.

    While weight isn't a cutoff per se, there are plenty of jobs in which having a certain level of fitness and strength is a requirement for ongoing employment. Two that easily spring to mind are firefighters and AFL players.

    This boils down to more than just weight. It's just a surrogate for overall health and wellbeing as well as ability to safely carry out that job. Which is probably most of the reason the tribunal sided with Parmalat (as was alluded to in the article).

    As an aside, BMI is a terrible arbiter of weight. It makes no adjustments for age or body morphology or muscle mass etc. There are plenty of elite bodybuilders for example who would be overweight on a BMI chart despite having single digit percent body fat.

    A much better marker is skin-fold thickness (in certain places). It's simple, convenient and can be serially measured. There are other more accurate methods, but none to a degree that compensates for their inconvenience.

      BMI is a yardstick, a rule of thumb, or a general guide. No doctor uses it as an absolute measure of someone's health and only delusional people who know they're overweight insist that "BMI IS USELESS!!!!" because they want to avoid the reality of their poor health.

      Doctors do take into account other factors. Do people think well-trained GPs are a pack of idiots who don't understand what BMI is? "Sorry, only Internet commentators understand the limitations of the BMI scale. People who have studied and practice medicine professionally are unaware of this".

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