Employee wins three years’ back pay for unfair dismissal over weight


A South Australian nurse has won her unfair dismissal claim after losing her job due to her weight and being deemed unfit to perform work. 

The South Australian Employment Tribunal has awarded three years’ back pay and reinstatement to an employee who allegedly lost her job due to her obesity and associated difficulties in performing her work duties. 

The employee, a nurse who had worked for her employer for 25 years, was dismissed in 2018 following a 14-month suspension for allegedly being unable to perform her role safely due to her weight, a knee condition and falling asleep at work. 

Her employer claimed the nurse was unable to perform her role or be considered for alternative duties as her health condition was “non-work related”. The tribunal questioned  this point, but more on that in a moment.

Magistrate Stephen Lieschke found the dismissal was harsh and unjust, and determined that the employer had acted in breach of its own anti-discrimination policies. Lieschke also stated that the employer had not reasonably supported the employee. 

The details of the unfair dismissal claim

Prior to her dismissal, the employee was placed on a performance improvement plan that forbade her from sitting while taking patient observations or conducting medication rounds, and she was told not to lean on her work cart during her day-to-day duties – both of which she had been allowed to do for the preceding years. Other nurses were allowed to sit briefly in between duties, the tribunal documents noted.

The employee had also been given two warnings and was reported to the Australian Health Practitioner Regulation Agency (AHPRA) for allegedly falling asleep at work. In response, the employee completed a sleep study, underwent continuous positive airway pressure (CPAP) therapy, and started seeing a psychiatrist and a psychologist.

In June 2018, the employee was notified that the interim CEO intended to dismiss her on the grounds that she was unfit to perform her role due to raised BMI, reduced cardiovascular fitness and knee arthritis. 

According to the interim CEO, the dismissal was based on the opinion of an independent occupational physician. However, the tribunal records state that the medical professional had suggested giving her a partially sedentary role in the short-to-medium term.

“You don’t want to be so prescriptive that it’s nearly impossible to follow your own policy.” – Joydeep Hor, Founder and Managing Principal, People + Culture Strategies

With the support of her union, the employee requested alternative duties until she underwent bariatric surgery to address her weight. If these alternative duties weren’t possible, she asked to access accrued leave until she was able to return to her role. 

The interim CEO said there were no appropriate alternative roles for the employee and did not address the request for leave. She then terminated the employee in November 2018. 

In the same month, the employee lodged an unfair dismissal claim, but the case remained at the conciliation stage until 2020 when it was referred to the South Australian tribunal. 

Lieschke felt the termination was a short sighted response and suggested that banning her from sitting or leaning, which provided her with some reprieve, “appears to be designed to make the applicant’s duties more difficult”. He also said the employer should have broadened its search for partially sedentary roles beyond the Adelaide region to include hospitals across the entire organisation.

Based on evidence, including the review by the independent occupational physician and testimony from a manager, Lieschke said that the employee’s future capacity was uncertain. It is possible, with appropriate redeployment or leave, she could have been able to return to her role, he said.

He also felt it was impossible to claim her health issues were not entirely work related, particularly as the employee had a workers compensation claim for a knee condition and psychological injury that was still being considered. Therefore, the employer should not have treated the employee’s health issues as “non-work related”. 

He also raised concerns that the employee’s health suffered due to her suspension and dismissal, and as a result, she may not be able “regain fitness” for the role. He nonetheless expressed optimism that with the “claim of wrongful dismissal now vindicated, there are additional prospects for improvement”.

Lastly, Lieschke found the employer had ignored its own HR policy, namely that the employer is to provide reasonable allowances for injured employees and that employees can take 12 months’ leave, with or without pay, to address an incapacitating health issue. 

Overall, Lieschke ruled that the employee’s contract was not frustrated as she was capable in part to continue her role with the potential to return to full duties at a later date. 

Takeaways for HR

HR policies shouldn’t be so stringent that they restrict employers to be flexible in unique circumstances.

That’s a big lesson for HR from this case, says Joydeep Hor, Founder and Managing Principal at People + Culture Strategies.

“Sometimes the volume of detail in these HR policies trip up employers because if they need to deviate for whatever reason, they get punished,” he says. 

This can get particularly tricky when it comes to performance management. 

“I see this with organisations that have very detailed performance management policies that give them absolutely no room for flexibility to tailor the course of action in respect to an underperforming employee. 

“They’ve created this epic document that sets out every single step that’s going to happen, and when one or two steps are not complied with the employer is at fault.”

Instead, Hor recommends taking a minimalist but far-reaching approach. For example, misconduct policies should be broad enough to encompass many different scenarios, but the response or punishment should be more flexible to reflect the circumstances. 

That’s not to say policies can’t contain guidelines. Using the misconduct example, a policy could read, ‘If found to have committed any misconduct, these are the potential steps the employer will take.’

“You don’t want to be so prescriptive that it’s nearly impossible to follow your own policy,” says Hor. 

Employers should also be careful about ignoring the advice sought from medical experts.

“If you send an employee off to be assessed, the presumption will be that you’re going to be guided by that independent person’s advice,” says Hor.

“[If you ignore it], that’s not going to stand you in good stead, because it means that you weren’t really interested in what the independent medical advice was to begin with.”

If you send an employee for an external medical examination and the results confirm they are unable to perform their role, the employee should be looped in at every stage.

“The employer should be sharing information very candidly with the employee [and saying], ‘On the basis of what we’ve been given, here’s what our preliminary thinking is. If you feel that we’re being unfair, or if you think we’re missing anything, now is the time for you to tell us.’”

This is part of due process, says Hor, and could end up protecting your organisation if an unfair dismissal claim were to ensue.

Need to make sure your workplace policies are up to scratch in order to avoid unfair dismissal claims? AHRI’s short course, Develop and Implement HR policies.
Book your team in today.

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Employee wins three years’ back pay for unfair dismissal over weight


A South Australian nurse has won her unfair dismissal claim after losing her job due to her weight and being deemed unfit to perform work. 

The South Australian Employment Tribunal has awarded three years’ back pay and reinstatement to an employee who allegedly lost her job due to her obesity and associated difficulties in performing her work duties. 

The employee, a nurse who had worked for her employer for 25 years, was dismissed in 2018 following a 14-month suspension for allegedly being unable to perform her role safely due to her weight, a knee condition and falling asleep at work. 

Her employer claimed the nurse was unable to perform her role or be considered for alternative duties as her health condition was “non-work related”. The tribunal questioned  this point, but more on that in a moment.

Magistrate Stephen Lieschke found the dismissal was harsh and unjust, and determined that the employer had acted in breach of its own anti-discrimination policies. Lieschke also stated that the employer had not reasonably supported the employee. 

The details of the unfair dismissal claim

Prior to her dismissal, the employee was placed on a performance improvement plan that forbade her from sitting while taking patient observations or conducting medication rounds, and she was told not to lean on her work cart during her day-to-day duties – both of which she had been allowed to do for the preceding years. Other nurses were allowed to sit briefly in between duties, the tribunal documents noted.

The employee had also been given two warnings and was reported to the Australian Health Practitioner Regulation Agency (AHPRA) for allegedly falling asleep at work. In response, the employee completed a sleep study, underwent continuous positive airway pressure (CPAP) therapy, and started seeing a psychiatrist and a psychologist.

In June 2018, the employee was notified that the interim CEO intended to dismiss her on the grounds that she was unfit to perform her role due to raised BMI, reduced cardiovascular fitness and knee arthritis. 

According to the interim CEO, the dismissal was based on the opinion of an independent occupational physician. However, the tribunal records state that the medical professional had suggested giving her a partially sedentary role in the short-to-medium term.

“You don’t want to be so prescriptive that it’s nearly impossible to follow your own policy.” – Joydeep Hor, Founder and Managing Principal, People + Culture Strategies

With the support of her union, the employee requested alternative duties until she underwent bariatric surgery to address her weight. If these alternative duties weren’t possible, she asked to access accrued leave until she was able to return to her role. 

The interim CEO said there were no appropriate alternative roles for the employee and did not address the request for leave. She then terminated the employee in November 2018. 

In the same month, the employee lodged an unfair dismissal claim, but the case remained at the conciliation stage until 2020 when it was referred to the South Australian tribunal. 

Lieschke felt the termination was a short sighted response and suggested that banning her from sitting or leaning, which provided her with some reprieve, “appears to be designed to make the applicant’s duties more difficult”. He also said the employer should have broadened its search for partially sedentary roles beyond the Adelaide region to include hospitals across the entire organisation.

Based on evidence, including the review by the independent occupational physician and testimony from a manager, Lieschke said that the employee’s future capacity was uncertain. It is possible, with appropriate redeployment or leave, she could have been able to return to her role, he said.

He also felt it was impossible to claim her health issues were not entirely work related, particularly as the employee had a workers compensation claim for a knee condition and psychological injury that was still being considered. Therefore, the employer should not have treated the employee’s health issues as “non-work related”. 

He also raised concerns that the employee’s health suffered due to her suspension and dismissal, and as a result, she may not be able “regain fitness” for the role. He nonetheless expressed optimism that with the “claim of wrongful dismissal now vindicated, there are additional prospects for improvement”.

Lastly, Lieschke found the employer had ignored its own HR policy, namely that the employer is to provide reasonable allowances for injured employees and that employees can take 12 months’ leave, with or without pay, to address an incapacitating health issue. 

Overall, Lieschke ruled that the employee’s contract was not frustrated as she was capable in part to continue her role with the potential to return to full duties at a later date. 

Takeaways for HR

HR policies shouldn’t be so stringent that they restrict employers to be flexible in unique circumstances.

That’s a big lesson for HR from this case, says Joydeep Hor, Founder and Managing Principal at People + Culture Strategies.

“Sometimes the volume of detail in these HR policies trip up employers because if they need to deviate for whatever reason, they get punished,” he says. 

This can get particularly tricky when it comes to performance management. 

“I see this with organisations that have very detailed performance management policies that give them absolutely no room for flexibility to tailor the course of action in respect to an underperforming employee. 

“They’ve created this epic document that sets out every single step that’s going to happen, and when one or two steps are not complied with the employer is at fault.”

Instead, Hor recommends taking a minimalist but far-reaching approach. For example, misconduct policies should be broad enough to encompass many different scenarios, but the response or punishment should be more flexible to reflect the circumstances. 

That’s not to say policies can’t contain guidelines. Using the misconduct example, a policy could read, ‘If found to have committed any misconduct, these are the potential steps the employer will take.’

“You don’t want to be so prescriptive that it’s nearly impossible to follow your own policy,” says Hor. 

Employers should also be careful about ignoring the advice sought from medical experts.

“If you send an employee off to be assessed, the presumption will be that you’re going to be guided by that independent person’s advice,” says Hor.

“[If you ignore it], that’s not going to stand you in good stead, because it means that you weren’t really interested in what the independent medical advice was to begin with.”

If you send an employee for an external medical examination and the results confirm they are unable to perform their role, the employee should be looped in at every stage.

“The employer should be sharing information very candidly with the employee [and saying], ‘On the basis of what we’ve been given, here’s what our preliminary thinking is. If you feel that we’re being unfair, or if you think we’re missing anything, now is the time for you to tell us.’”

This is part of due process, says Hor, and could end up protecting your organisation if an unfair dismissal claim were to ensue.

Need to make sure your workplace policies are up to scratch in order to avoid unfair dismissal claims? AHRI’s short course, Develop and Implement HR policies.
Book your team in today.

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