Sep 16, 2021

Nurse unfairly fired for being overweight gets her job back 3 years later

Nurse hospital silhouette

She will be paid for the three years since being dismissed.

In November 2018, an Adelaide nurse lost her job at Lyell McEwin Hospital, but after winning her case at the South Australian Employment Tribunal, she will now be reemployed in a different area of the hospital.

Magistrate Stephen Lieschke said her dismissal was “harsh, unjust and unreasonable”.

The interim chief executive of the Northern Adelaide Local Health Network, Debbie Chin, fired the registered nurse after deciding she was unable to complete duties “inherent to your role due to a non-work related medical condition”.

“The condition was stated to be raised BMI, reduced cardiovascular fitness and knee arthritis,” the magistrate said. 

A doctor found the nurse was “not medically able to safely perform all the inherent duties of your position without limitation or restriction”.

However, the respondent could not prove the nurse’s health conditions were not related to her work.

“That assertion was no more than a self-serving declaration, which avoided the respondent having to consider the applicant’s potential additional rights under the Return to Work Act,” Lieschke said.

With the help of the union, the nurse submitted a request to take on alternative duties or take leave while she underwent lap band surgery, but the request was rejected.

Lieschke said, “I find there was no medical evidence that supported Ms Chin’s conclusion that the applicant was unlikely to regain sufficient functional capacity to be fit for at least a reasonably and safely modified lighter nursing role…”

The magistrate continued, “I find there was no medical evidence that sufficient or partial recovery within 12 months was unlikely.”

Lieschke said that part of the reason the nurse had not recovered her health was from the stress of the wrongful dismissal. 

“While it remains a possibility that the applicant may not recover from the health setbacks caused by her suspension and dismissal, and improve her pre-suspension functional work capacity, such that she will not regain fitness for a suitably modified lighter nursing role, that conclusion cannot be reached at this point in time.”

He added, “With the claim of wrongful dismissal now vindicated, there are additional prospects for improvement.”

Since her dismissal, the nurse has suffered depression, anxiety, knee pains and obesity, and has lost 30kg.

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