Nurse Unfairly Dismissed Because Of Her Weight

A South Australian nurse has been awarded three years’ back pay after being unfairly dismissed because of her weight.

The nurse was awarded three years’ backpay and has been reinstated to her role after she was unfairly dismissed from her job due to her obesity and associated issues performing her role. The nurse had been working for her employer for 25 years and was dismissed in 2018 after a 14-month suspension for allegedly being unable to perform her duties due to her weight, a knee condition and falling asleep at work. The South Australian Employment Tribunal found that the dismissal was harsh, unjust and the employer had acted in breach of their anti-discrimination policies.

Before being dismissed the employee was on a performance improvement plan (PIP) that forbade her from sitting or leaning while performing her daily duties. She had been allowed to do this previously and other nurses were allowed to briefly sit between duties.

The nurse had also previously had two warnings and been reported to the Australia Health Practitioner Regulation Agency for allegedly falling asleep at work. In response, the employee had addressed the issue by attending a sleep study, undergoing CPAP therapy, and seeing a psychiatrist and psychologist.

In June 2018, the employee was told the interim CEO intended to dismiss her. This was because she was unfit to perform her role due to raised BMI, reduced cardiovascular fitness and knee arthritis, as recommended by an independent occupational physician.

The Tribunal later heard that the medical professional had only suggested giving her a more sedentary role. The employee requested alternative duties until she underwent bariatric surgery to address her weight or if that were not possible that she accesses her accrued leave until she could return to her role.

Both of these requests were denied, and the employee was terminated in late 2018. The nurse lodged an unfair dismissal claim and was referred to the South Australia Tribunal in 2020.

The Magistrate found that the PIP banning her from sitting or leaning ‘appeared to be designed to make the applicant’s duties more difficult’. It was also noted that the employer did not seriously consider appropriate sedentary roles for redeploying the employee.

The Magistrate found that the employee’s future capacity was uncertain, but it was possible with appropriate redeployment or leave that she could return to her role.  It was also found that the employee was not reasonably supported by the employer and her health issues were work-related with workers compensation claims for a knee condition and psychological injury.

The employer also ignored its HR policy to provide reasonable allowances for injured employees including taking 12 months’ leave with or without pay to address health issues. Therefore the Magistrate instructed the employee was to be reinstated with 3 years’ back pay.

Key takeaways:

  • Employers must follow due process if terminating employees and consider reasonable options for redeployment or alternative work before doing so.
  • Employers should abide by their HR policies. Ignoring internal HR policies only harms the employer if issues are taken to tribunal.
  • In the event of medical issues, employers need to be careful using the advice of medical experts and be clear with employees about the outcomes of medical assessments.
  • Employers must allow employees the opportunity to respond to claims or evidence and their responses should be seriously considered by employers.

ProcessWorx Advisors have experience terminating employees and dealing with unfair dismissal claims. If you have queries about anything above and want advice personalised to your business, contact us on (08) 9316 9896, or email enquiries@processworx.com.au.

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Written by Danielle McNamee

 

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Marisa Ross

HR Advisor

Marisa is an experienced and motivated HR professional with a strong HR generalist and business operations background with a focus on employee relations, performance management, leadership training & development, workers compensation & injury management, and employee retention. Marisa holds a Bachelor of Human Resource Management and a Bachelor of Behavioural Science with a minor in Counselling. Having worked in a variety of industries from SMEs to large blue-chip organisations, Marisa is passionate about enriching employee experience, employee retention, and building leadership capability in people management.

Aimee Grigson

Aimee Grigson

WHS Advisor

Aimee has a strong understanding of Workplace Health and Safety Legislation and standards and has extensive HSEQ experience in a number of industries. Aimee has a great ability to engage across all levels of organisation, including field teams, leadership and external stakeholders. Aimee ensures Health and Safety Management Systems are compliant to legislation, effectively implemented and understood by all. Aimee has a Certificate IV in Work Health and Safety and qualifications in auditing and incident investigations. Aimee is passionate about coaching and developing small businesses towards a positive safety culture.