Tribunal slams employer for firing nurse overweight concerns

In a recent case, the South Australian Employment Tribunal considered a nurse who was dismissed due to her weight. The nurse’s employer contended that her weight resulted in an inability to perform work duties. However, the Tribunal ultimately found that the dismissal was inconsistent with the employer’s HR policies and ordered the nurse be reinstated with back pay.

Heike Geselle commenced working as a registered nurse at the Lyell McEwin Hospital in 1993. Over her 25 years of service, she worked in various nursing roles, including in medical, midwifery and intensive care. In April 2017, Geselle received a warning for falling asleep at work. She underwent CPAP therapy and was placed on a “performance improvement plan”. Despite these measures, in September 2017, Geselle was stood down with pay due to “work capacity concerns”.

In May 2018, newly appointed interim CEO Deborah Chin received information regarding Geselle’s alleged medical incapacity. Chin soon advised Geselle of her intention to terminate her employment. Chin cited the medical opinion of Dr Mark Floyd, who stated that Geselle was unfit to perform “all the inherent duties of [her] position without limitation or restriction” due to her weight. Geselle was subsequently dismissed in November 2018.

The Hearing

Geselle submitted that her dismissal was in retaliation for her earlier complaints of bullying and harassment by a group of nurses. She also asserted that the Department ignored her request to take accrued leave to address her underlying health concerns. In contrast, the Department submitted that the Tribunal was only required to determine whether its conclusion that Geselle was unable to perform the “inherent requirements” of her role was “fair and reasonable”.

Judgment

The Tribunal found in favour of Geselle for several reasons. Firstly, it stated that the Department had “unreasonably ignored” Giselle’s request to use her accrued leave until such time that she could return to her role. It also held that the Department unreasonably relied only on its preferred medical opinions to draw conclusions regarding Geselle’s incapacity to work. Further, The Tribunal found that the Department failed to consider potential job modifications, or a lighter nursing or administrative role for Geselle, despite falsely claiming to do so. 

With this, the Tribunal found that Geselle’s dismissal amounted to unlawful discrimination, was inconsistent with the Department’s HR policies, and was harsh, unjust and unreasonable. The Tribunal ordered that Geselle be reinstated in a suitable nursing role and be paid all wages from her date of dismissal.

Key Takeaways

• Employers must always ensure there is a valid reason for an employee’s dismissal
• Dismissing an employee based on physical appearance may amount to unlawful discrimination under the Equal Opportunity Act
• Employers must raise performance shortfalls with an employee, and provide an opportunity to respond, before terminating employment
• Where an employee can no longer perform their role, an employer may be obliged to seek out redeployment opportunities