Ranui Parahi v Parmalat Australia Ltd.  FWC 7191 (U2015/8466). MCKENNA, C. NOVEMBER 2015
- The applicant, who was formerly employed as a Cool Room Operator at one of the respondent’s distribution centres in suburban Sydney, commenced employment with the respondent as a transferring employee in 2009, and had previously worked as a labour hire employee from 2000.
- There was no evidence of any issues concerning the applicant’s capacity or performance, other than the particular circumstances related to the dismissal itself involving an alleged incapacity to perform the inherent requirements of his role.
- The applicant, among other employees of the respondent, completed a manual handling hazard and risk assessment which was conducted by an external occupational therapist. The applicant was considered to have a medium-to-high risk assessment, raising resulting concern that he may not be able to safely and competently perform his role.
- The applicant attended various appointments and assessments. Principal among the issues concerning the applicant’s fitness were his weight and associated medical-type issues. As at the date of an assessment instigated by the respondent and conducted in May 2014 the applicant’s weight was 165kg.
- This precluded him from operating the forklifts due to the forklifts’ maximum weight safety ratings (such as for the maximum weight on the forklift seats).
- From June 2014, the applicant initially was stood-down from duties with pay; he next accessed accrued paid leave entitlements; and, when the paid leave entitlements were effectively exhausted, he thereafter remained employed by the respondent, but without pay. The applicant encountered significant financial hardship as a result of the stand-down; his income protection insurer apparently advised that an insurance application would not be entertained, with the result the applicant did not make a formal application; and the applicant was otherwise apparently ineligible for social security benefits so long as he remained employed by the respondent.
- The respondent expected that during the stand-down the applicant would, in accordance with medical advice, take steps concerning weight/health management with a view to a resumption of duties.
- When the occupational physician conducted a second assessment of the applicant in February 2015 in connection with fitness for work, the applicant’s weight had increased from 165 kg to 175 kg
- The occupational physician was of the view that the applicant could (only) conduct semi-sedentary-type work which did not require any heavy manual handling and operating mobile machinery for full-time hours and days, if this was available to him.
- The respondent proceeded to dismiss the applicant on 26 May 2015, with a payment in lieu of notice.
In finding in favour of the company, the Commission stated that there was a valid reason to dismiss the applicant on the basis of the applicant’s incapacity concerning the inherent requirements of his position (and note also that the decision to dismiss was made approximately a year after the applicant was stood-down with a view to a return to work after addressing medically-advised weight/health management issues).
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