BHP wins case to fire obese worker

BHP has won a compensation case against a worker who was fired for being morbidly obese.

The former Peak Downs coal miner, Jamie Bray, was fired in 2014 by BHP after his weight reached a point where he was considered unable to effectively carry out his job, and was a danger both to himself and his colleagues.

Bray weighed around 160 kilograms, and measured 176 centimetres ( 5 foot 9 inches) tall.

This equates to a BMI of more than 50.

A healthy BMI range for adults is 18.5 to 25.

Bray filed a claim for compensation against BHP, claiming psychiatric injury from being fired with no warning, after being absent from work for two years.

However BHP and its insurer rejected the claim on the grounds that it did not cause an injury within the meaning of the worker’s compensation act.

“The decision to terminate Bray's employment was reasonable because it was not able to disregard specialist medical advice in respect of Bray's obesity, as well as the risk his obesity presented to himself and others in the workplace, in circumstances where he had been provided with a reasonable opportunity over a long period of time to address these concerns,” BHP stated to the court.

“Further, the decision to terminate Bray's employment was lawful and reasonable in circumstances where the site senior executive, Milful had a legal obligation to control risk at the Peak Downs Coal Mine site.”

The Peak Downs manager of pre-strip operations, a Mr Iliffe, explained that Bray’s weight would have an impact on those under his management on site.

“It's a fairly dynamic role and you're covering probably 25 – 30 kilometres of pit,” Iliffe said.

“So engaging with his workforce as well – he might have a crew of up to 20,25 people – he might have to get onto another bit of machinery, whether it be for a conversation or even in an emergency situation where a supervisor is required to act and assist in an emergency situation.

“So certainly [there was potential] risk to the individual, but also to other employees as well."

The court noted his concerns over Bray’s inability to walk on uneven ground; walk a reasonable distance; get on a machine; and act and assist in an emergency situation.

Iliffe went on to state that in 2013 he had worked with Bray to obtain medical certificates pertaining to Bray's ability to work again, and had arranged – via BHP’s Employment Assistance Program – a series of counselling sessions, and then arranged extra sessions for Bray, as well paying for his doctor’s bills, which amounted to around $40,000, on top of backfilling Bray’s position.

In the same month Iliffe also contacted Bray advising him that he had not lodged a current Workers' Compensation Claim and therefore his time away from work was being considered as personal leave and was being deducted from his leave accruals

During this time Bray stated that he wanted to return to work, however the court said “it had seen minimal effort on his part to return to the workplace”.

“The evidence indicates Iliffe had been attempting to engage with Bray in respect of a return to work date since at least November 2012  [when he was already abset from work],” court documents state.

“At one point, in late 2012, BHP was forced to send correspondence to Bray noting five separate occasions over a four week period where he had simply failed to respond to various attempts to contact him.”

The court wholesale rejected Bray’s claims over psychological damage caused by being sacked with no prior warning, noting that “Iliffe chose to advise Bray personally of the termination of his employment because he believed it to be the most reasonable thing to do rather than sending him an e-mail to that effect, in circumstances where Bray’s normal place of work was a remote mine site some distance from where he resided”.

“Whilst from a procedural perspective a better course may have been for Iliffe to provide Bray with some indication that termination was seriously being considered, in my view, it was not unreasonable for Iliffe to affect the dismissal in the manner in which it was, particularly given the long history of the matter and prior conversations that had been held in respect of the termination of Bray's employment.”

This is not the first time miners have had issues relating to the health of morbidly obese workers.

In 2012 Curragh stood down a 163 kg miner, 179 cm tall miner who was deemed unfit to operate equipment due to “a significant risk” of a heart attack.

At the time a DEEDI spokesperson said regulations did not "impose minimum or maximum weights for persons working in the mining industry".

But they said legislation did require mines to ensure the safety and health of their workers.

The QRC stated that the coal industry "requires miners to undertake a medical assessment to confirm their fitness for work".

It said an employee's body mass index could become a factor in their work safety and all equipment had its "tolerance limits".

The miner, Ian Mattson, successfully fought the order suspending him from work, as he underwent a regime to lose weight.

The 47 year old was later allowed back on site, in spite of a health review on the newly reinstated obese worker which noted his BMI as 'malignant', and that he had a 52cm neck circumference, which dramatically increased his chance of cardio-vascular disease.

During the same period a number of overweight workers were also stood down from a Bowen Basin coal mine, and told they would only be reinstated once their weight dropped below 120 kilograms.

It is understood that chairs on site were not rated to take weights above the 120 kilograms limits, and reports emerged of some breaking under the larger workers.

According to health experts, around three in four workers in the mining industry would be considered overweight.