A worker at BHP Pty Ltd (“BHP”) has had his Workers’ Compensation claim denied, after his employment was terminated because his weight posed a safety risk to himself and other employees.

Facts

Mr Bray commenced employment with BHP as a shift worker in 1994.Most recently he held the position of Shift Supervisor and was responsible for supervising up to 30 operators.As part of his role, Mr Bray was required to cover between 25-30 kilometres of the pit.He was also required to, amongst other things, hitch up lighting plants and climb equipment.

For two years prior to the termination of his employment, Mr Bray was absent from work on paid sick leave due to a non work related stress issue.Mr Bray faced a number of barriers as part of his return to work, including:

• mobility issues due to his weight (he was 176 centimetres tall and weighed 160 kilograms);
• alcohol and other dependency issues; and
• anger management and behavioural issues.

To assist Mr Bray with his return to work BHP paid up to $40,000 for Mr Bray to meet with a number of Medical practitioners.

In a report dated 9 March 2013, Psychologist Dr Sarkar noted that Mr Bray had challenges associated with physical weight gain and mobility and referred him to Dr McCartney, an Occupational Physician, to determine his suitability to undertake his supervisory duties.Mr Bray saw Dr McCartney over a period of nine months during which Dr McCartney provided various reports to BHP in respect of Mr Bray’s fitness for work and ability to undertake the physical aspects of his role (including kneeling and squatting, walking on uneven ground, climbing up ladders and entering machinery and other vehicles).

Dr McCartney’s final report, dated 17 November 2013 stated that although there had been improvement in terms of Mr Bray’s prior knee and psychological injuries there were on-going concerns about Mr Brays’ ability to perform specific tasks safely, namely:

• “tasks that require Mr Bray to undertake repeated kneeling, squatting or climbing ladders pose a significant and foreseeable risk of the aggravation of the underlying degenerative condition affecting his knee;
• his frame is likely to have considerable difficulty fitting into a light vehicle … without significant and foreseeable impact on safely controlling the vehicle;
• Mr Bray’s obesity places him at a significant and foreseeable risk of slips, trips and falls; and
• should Mr Bray become incapacitated, he is likely to significantly impact the safety of his colleagues should they attempt to move him”.

Following this, BHP met with Mr Bray on 29 January 2014 and offered him two choices; he enter into a performance plan in respect of his weight loss (given there had been little improvement over an extended period of time) or he and the company agree to a mutual separation. Mr Bray rejected the separation offer and requested to return to work.

BHP had a number of concerns. In particular Mr Bray’s supervisor, Mr Iliffe expressed concerns that Mr Bray’s return to work could possibly contravene BHP’s obligations under the Coal Mining Safety and Health Act 1999 Qld which contains obligations for workers to ensure they are not exposing themselves or others to risk.

Mr Iliffe discussed these concerns about Mr Bray’s return to work with Mr Milful, the Senior Site Executive, including concerns about Mr Bray’s ability to:

• walk on uneven ground
• walk a reasonable distance
• get on a machine; and
• act and assist in an emergency situation.

After considering all of the facts, Mr Iliffe and Mr Milful determined that Mr Bray presented an “unacceptable risk to himself and other employees on the site” and as a consequence a decision was made to terminate his employment.

On 12 February 2014 Mr Iliffe met with Mr Bray and communicated the decision to terminate his employment.On 24 February 2014 Mr Bray lodged an application for compensation with BHP for a psychiatric/psychological injury.

The primary decision

On 20 May 2014, BHP (who is a self insured) rejected the worker’s compensation application made by Mr Bray on the basis that his psychological issue arouse out of reasonable management action taken by BHP and therefore he did not suffer a compensable “injury” under section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘Act’).

Mr Bray sought a review of the decision by the Workers’ Compensation Regulator who set aside the rejection of the claim on the grounds that it objected to the way BHP terminated Mr Bray’s employment by not giving Mr Bray prior notice that they were considering termination of his employment.

BHP appealed this decision to the Queensland Industrial Relations Commission.

The appeal

The issue for determination was not whether Mr Bray suffered a workplace injury but whether that psychiatric/psychological injury was a compensable injury.

Section 32(5) of the Act provides:

“5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—

(a)  reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;

(b) the worker’s expectation or perception of reasonable management action being taken against the worker;

(c) action by the Regulator or an insurer in connection with the workers application for compensation.”

The decision

Commissioner Minna Knight found that Mr Bray’s psychological injuries were a result of reasonable workplace management action.

The Commissioner held that BHP had provided support to Mr Bray’s to improve his health over a long period of time and in making the decision to terminate his employment, considered the safety risk to Mr Bray and his colleagues of his return to work.

The Commissioner further stated that the “reality of the situation was that Mr Iliffe was faced with the prospect of returning Mr Bray to work while there remained significant risk factors involved with doing this. Mr Iliffe had been unable to see any progression in Mr Bray’s attempts to improve his health and mostly his weight over a long period of time”.

While the Commissioner acknowledged that there might have been a better way for BHP to give Mr Bray an indication that termination of his employment was a possibility, it was not unreasonable to effect the dismissal when considering the “long history of the matter and prior conversations that had been held in respect of the termination of Mr Bray’s employment”.

What does this mean for employers?

• A decision to terminate an employee’s employment will be hard to displace if it is based on legitimate OH&S concerns: given the obligations of employers under OH&S legislation, employers will generally be in a strong position to defend against claims brought in relation to termination of employment (i.e. workers compensation, unfair dismissal, adverse action etc.) where it can be established that the reason for the decision was due to safety concerns and their corresponding obligations under OH&S legislation.
• Employers should act quickly: given the significant financial costs associated with workers compensation claims, if employers are concerned as to the legitimacy of a workers compensation claim they should act quickly to challenge and/or influence the investigation of a claim before an insurer makes a determination to accept the claim.
• Keep detailed notes and evidence: in this case Mr Ilife’s notes and that of the medical advisors supported the reasonableness of the decision to terminate Mr Bray’s employment and ultimately influenced the Commission in its findings.