The Federal Circuit Court of Australia (‘FCCA’) recently dismissed a security guard’s (‘Mr Findlay’) adverse action claim in which he alleged that MSS Security Pty Ltd (‘the Company’) discriminated against him on the basis of his disability .
On 1 February 2016, Mr Findlay commenced employment with the Company in the position of a full time Security Officer at Deakin University, Geelong (‘the University’).
On 13 October 2016, the University contacted the Company regarding some “work issues” involved with Mr Findlay including failing to log alarm activations and engaging in completely non-work related tasks while at work.
On 18 October 2016, the University requested the removal of Mr Findlay from the Deakin site. The following day, the Company offered Mr Findlay alternative positions in Melbourne and Geelong. Mr Findlay stated that, due to him being a “big guy”, the role would be “not suitable nor is it reasonably equivalent to my position at Deakin [if it] requires [me to] walk or stand for periods of time”.
The Company offered Mr Findlay three further alternative positions in Melbourne. Mr Findlay rejected all the options on the basis that each required him to walk for extended periods of time.
The Company subsequently terminated Mr Findlay’s employment in accordance with the terms in his employment contract as there was no comparable position to transfer his employment.
Mr Findlay was provided with one weeks’ pay in lieu of notice.
The FCCA accepted Mr Findlay’s submission that his morbid obesity could constitute a disability for the purposes of s 351 of the Fair Work Act 2009 (Cth) (‘the FW Act’) because the morbid obesity caused a loss of function in his body. Mr Findlay argued that the Company subjected him to disadvantage due to his disability when he attempted to transfer his employment from the University to a more mobile role.
The Company gave evidence that prior to his employment, Mr Findlay answered “no” to the pre-employment question:
“[d]o you have any medical condition that could prevent you from performing the inherent requirements of the job you are applying for?”
Additionally, the advertisement for the job at the University listed that a “high level of physical fitness” was required for the job. At the time he was hired Mr Findlay weighed 175kg and at the time of his removal from Deakin he weighed 198kg.
His Honour Judge McNab rejected Mr Findlay’s submission that he had been subjected to adverse action by discrimination because of his morbid obesity. In his decision, His Honour highlighted that Mr Findlay had been hired as a security guard – his appointment to the control room at the University was merely the task he had been given.
Furthermore, the Court held that Mr Findlay’s claim that he could not:
“perform work as a security guard that involved more than five minutes walking per hour meant that he could not perform the inherent requirements of the job that he was employed to perform.” [emphasis added]
The Court also took into account the fact that the Company sought to place Mr Findlay in alternative positions once the role at the University had been withdrawn.
Ultimately, the Court held that Mr Findlay had not been discriminated against in the termination of his employment and that by refusing the alternative roles his termination was lawful and in accordance with the terms of his employment contract.
The FW Act protects potentially vulnerable workers from dismissal or major change to their job that are made due to that worker’s disability. However, in this instance the Company’s actions against Mr Findlay were related to the inherent requirements of the security job itself.
In not being able to walk for more than five minutes an hour, Mr Findlay could no longer perform the role of security guard – the role in which he had been employed. Therefore, Mr Findlay’s physical disability prevented him from performing the inherent requirements of the job and the Company’s termination of his employment was lawful.
If you are facing any difficulties in managing your diverse workforce, please do not hesitate to contact Nick Stevens, Megan Cant or Isabella Paganin. Findley v MSS Security Pty Ltd  FCCA 2898