The Case

BHP Coal Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) (2015)

Mr Bray worked for BHP as a miner. At 176cm tall and weighing 160kg, Mr Bray had a BMI over 50 (well above the healthy range) and was considered obese. Mr Bray’s obesity and other health issues meant that he was off work for 2 years and, when at work, he was not able to perform the inherent requirements of the job of a miner, including:

• walking on uneven ground;
• walking a reasonable distance;
• climbing ladders;
• climbing into machinery to perform work; and
• working safely and not posing a health and safety risk to himself or other employees. Mr Bray’s size meant he could not carry out emergency procedures and if he became incapacitated it would be extremely difficult to safely move him.

BHP terminated Mr Bray’s employment because he was unable to perform the inherent requirements of his job in a safe manner. Mr Bray alleged he suffered stress, anxiety and depression as a result of the termination, and made a workers’ compensation claim.

The Verdict

The Queensland Industrial Relations Commission (QIRC) upheld the validity of the termination, but indicated that BHP should have provided Mr Bray with a written warning that his employment was at risk before actioning the termination.

However, given Mr Bray’s lack of cooperation and the significant risks of returning him to work, the QIRC found the termination was reasonable management action and overturned the decision to award workers’ compensation.

The Lesson

While each case is decided on its facts, this case does demonstrate that an employer may, on the basis of incapacity and safety concerns related to obesity, dismiss an employee.

You may be able to do this where the employee, due to obesity, is unable to perform the inherent requirements of their job without causing a risk to health and safety.

To reduce the risk of any legal action associated with such a dismissal, you should ensure that:

• you maintain accurate and up-to-date position descriptions that outline the inherent requirements of employees’ positions;
• you obtain a medical report regarding the employee’s ability to perform the inherent requirements of their job in a safe manner;
• where possible, you return the employee to work on suitable duties or redeploy them to another available job they are qualified to perform;
• the dismissal complies with any disciplinary policy, termination policy or procedure in the workplace; and
• you use a fair process to manage and dismiss the employee.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.