Why obesity didn’t matter in discrimination case

By Andrew Hobbs on December 4th, 2017
  1. Termination of Employment
  2. Dismissal


IF you need to dismiss a worker who physically can’t perform a task that is intrinsic to their role, you won’t have discriminated against them, a recent court decision has shown.

A security company faced this dilemma recently when it dismissed an obese security guard who refused to take on any new job that required him to walk for more than five minutes every hour.

In Findley v MSS Security Pty Ltd (2017), the Federal Court found in favour of the company, saying that walking around was part of the job he had originally applied for.

What happened?

Mr Findley was hired by MSS to work at the Geelong campus of Deakin University in January 2016, after he responded to an advertisement, part of which is printed below:

“We are looking for high quality, professional Security Officers that are able to work in a variety of scenarios and have exceptional customer service and communication skills.”

The advertisement said candidates required “a high level of physical fitness,” and “the ability and desire to respond quickly in emergency situations”.

When he was hired, after passing a medical examination, Mr Findley weighed 175kg – and when Deakin asked that he be removed from his for an unrelated reason, he weighed 198kg.

When MSS looked for alternative options, Mr Findley said he would only consider being transferred to a position that was “reasonably equivalent” to his role at Deakin.

“Obviously I am a big guy, and if this position requires me to walk or stand for periods of time, the job is not suitable nor is it reasonably equivalent to my positon at Deakin,” he wrote.

The company offered him three roles in Melbourne, but because all required him to walk around, the guard rejected them all.

Following this, the company dismissed him, awarding him one week’s pay in lieu of notice.

Did MSS discriminate?

Obesity is a disability under the Disability Discrimination Act (1992) when a person’s weight causes a “loss of functioning of a person’s body or part of the body”.

Mr Findley argued that in making him walk more often, MSS was trying to alter his job to his disadvantage – which he said was adverse action and discrimination due to his disability and a breach of the Fair Work Act (2009).

But Judge Alister McNab disagreed, saying Mr Findley had been employed as a security guard and not, as he argued, as a control room operator in Geelong – the latter was merely the task he had been given.

“Mr Findley (had) agreed to accept a position which involved undertaking a variety of roles and duties… and at locations where (MSS) has a contract to provide security services,” he said.

“The stipulation by Mr Findley that he could not perform work as a security guard that involved more than five minutes walking per hour meant that he could not perform the inherent requirements of the job that he was employed to perform.”

Judge McNab also noted that MSS had looked to find suitable alternative jobs for Mr Findley, but that Mr Findley refused them because of travel costs and mobility requirements.

“Once Mr Findley refused the positions available there was not work for him and his employment was terminated in accordance with the terms of the contract,” Judge McNab said.

More information about disability discrimination

While employers are expected to make reasonable adjustments for employees with disabilities, chapter D1 Discrimination of the Employment Law Practical Handbook says these adjustments should not be made to the position the person occupies or to the equipment a person uses.

Instead, they are “supporting measures to enable an employee to fulfil the inherent requirements of their role.”

While the Fair Work Act (2009) protects workers from dismissal or major changes to their job that are made because of a person’s disability, this does not apply to action taken because of the inherent requirements of the job concerned.

In this case, Mr Findlay was hired as a security guard and his employment was terminated because he could no longer work as one. The fact that his role in Geelong was more sedentary was irrelevant.

Further information about what constitutes disability discrimination, as well as what adjustments are considered ‘reasonable’ and which are unjustifiable can be found in this chapter in the Employment Law Practical Handbook.

Click here to order your copy today and help to simplify your business.


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