Security officer loses obesity discrimination claim after site removal

What happened

Mr Findley started with MSS Security as a full-time security officer on 1 February 2016 and was assigned to the control room at Deakin University in Geelong, one of the company's client sites. On his online application he had answered "no" when asked whether he had any medical condition that could stop him performing the inherent requirements of the job. He weighed about 175 kilograms at the time.

A few months in, he became a self-appointed bargaining representative. He applied to terminate the company's 2011 enterprise agreement and opposed approval of its new agreement in the Fair Work Commission.

On 1 June 2016 the company's HR manager wrote to him alleging that he had misrepresented his experience or given false or misleading information in his resume, because he had not mentioned earlier casual work with another security firm. The letter warned that the outcome could include summary dismissal. Mr Findley denied any wrongdoing and said he was being targeted for his part in bargaining.

Losing the university post

In October 2016 the university raised concerns about his work, including three videos of him in the control room and an alleged failure to log 17 alarm activations during one night shift. He denied being derelict in his duties. On 17 October 2016 the university asked for him to be removed from all its sites. MSS asked it to reconsider and suggested a final warning instead, but the university refused.

At a meeting about other work on 21 October 2016, according to the HR manager's evidence, he said he was nearly 200 kilograms and could not walk for longer than five minutes. A client in Geelong declined to take him, and he was offered three sites in Melbourne. He turned them down, citing uncompensated travel costs and time and the walking involved. On 14 November 2016 his employment was ended with one week's pay in lieu of notice.

The claim

Mr Findley sued MSS in the Federal Circuit Court under the general protections in Part 3-1 of the Fair Work Act 2009 (Cth). He alleged that the investigation and the letter of allegations were adverse action taken because he had exercised a workplace right by taking part in bargaining; that the company had tried to coerce him or put undue pressure on him (ss 343 and 344); and that by moving him to work it knew he could not physically do, it discriminated against him because of a disability, contrary to s 351. He sought $132,000 in compensation, reinstatement and a $540,000 penalty.

Why: the legal test

Adverse action, defined in s 342, includes dismissing an employee, injuring them in their employment, or altering their position to their prejudice. Section 351 forbids an employer taking adverse action because of an employee's disability, but s 351(2)(b) says that does not apply to action taken because of the inherent requirements of the particular position.

Under s 361, once a worker alleges that the employer acted for a prohibited reason, the employer must prove that it did not. That often turns on whether the court believes the decision-maker.

What the court decided

Judge McNab accepted that morbid obesity may be a disability, because it can limit a person's movements and activities. But he found no adverse action because of it. Mr Findley's contract made him a security officer who could be placed at any site, not a control-room operator tied to Geelong. The university, not MSS, had wanted him gone, and there was no evidence of collusion between them. Refusing any job that involved walking more than five minutes an hour meant he could not perform the inherent requirements of the job he was employed to do, and he had not shown that any other position was available that he could have done.

On the investigation, Mr Findley won the argument but lost the claim. The judge found that he was not obliged to list his entire work history, that the employer had either misunderstood his obligations or been ill-advised, and that its response was disproportionate. "That an employee fails to refer to that experience is not lying," he wrote. He also accepted that an investigation threatening dismissal can itself be adverse action.

The judge accepted that the look into his work history grew out of the bargaining dispute. But having heard the HR manager, he found the investigation was not carried out because of his part in bargaining. Acting on a mistaken view of the facts is not the same as acting for a prohibited reason, and there were obvious reasons to check a security officer's background. MSS had discharged its onus under s 361. The coercion claims failed for the same reason, and the application was dismissed.

What this means for you

If you have a disability, the protection is real, but it covers action taken because of the disability, not every consequence of it. A court will look at the job you were employed to do, as your contract describes it, not the job you would prefer. If your contract lets your employer move you between sites, losing one site is not in itself discrimination.

If your employer starts investigating you soon after you raise a complaint or exercise a workplace right, the timing alone will not win the case: the court will weigh what the decision-maker says about why they acted. Keep records, answer allegations in writing, and consider getting advice early. A general protections claim about a dismissal must be lodged with the Fair Work Commission within 21 days.