Preston Russell Law - Legal Services for Southern People

Can you fire an employee for being overweight? - A cautionary tale

Thursday, June 04, 2009 by Mary-Jane Thomas, partner category Work to Rule

Every once in a while when I read a case I have an “are you kidding” moment. This is one of those cases. In fact it may be my favourite case so far this year.

Mr D. was employed as a driver. Prior to the job interview he had a medical examination with an occupational and health nurse. The nurse telephoned management and said she was worried about Mr D.’s work readiness because of his obesity, a leg ulcer and knee injury. The nurse also e-mailed the employer saying that although Mr D. was “work fit” to be a good employee he really needed to lose weight and his right knee was causing him a lot of pain which required twice daily pain medication.

Although the employer received the pre-employment medical report at the time of interview it appears that the person hiring didn’t read it (which begs the question why get it in the first place?) The first time Mr D. saw the report was at the Employment Relations Authority hearing.

The only comment in the interview about his obesity was that the Operations Manager (who conducted the interview) asked Mr D. if he would have problems getting up a ladder on the trucks. Mr D. said he would not. 
 
He got the job, was given a collective employment agreement to sign and was told he would be trained for one week.
 
He started on the Monday, had a week’s training and then worked on the Monday. On the Tuesday when he arrived at work he was telephoned by one of the bosses who asked him how he was getting on with the job. Mr D. said he was enjoying his job and all was well. 
 
Incredibly the boss then said to Mr D. “I’ve got a problem I think you should finish up” and when asked why the boss said that Mr D. should look at joining a gym and hiring a personal trainer to assist him in losing weight. He then asked (believe it or not) whether Mr D. was a member of Southern Cross as they would subsidise a stomach stapling operation cost of $15,000.00.
 
 When Mr D. protested that he had done nothing wrong and asked why the boss wanted him to leave Mr D. said “you’ve done nothing wrong you’re too big for the job”. Mr D. was forced to finish immediately, asked to hand back his ID card. Mr D. cried as he drove home.
 
I have been known to err on the side on bluntness but even I cannot comprehend how someone could have said this in a work environment – I mean how many of you would say this to a close friend or family member even if they needed to hear it??
 
The employer argued that Mr D. was employed on a one week trial basis. Mr D. said that there was never such an agreement. The collective employment agreement that he signed did have a probationary period in it but for three months. The employer argued that the clause allowed the trial period to be ended at any time during the stated three months. That was completely rejected by the Authority member.
 
The Authority found that the dismissal was unjustifiable. Mr D. ended up getting $10,500.00 reimbursement in wages. He was also awarded $4,000.00 compensation.