Obesity dismissal unjustified

An obese truck driver sacked for being too fat was unjustifiably dismissed by his new employer, the Employment Relations Authority has ruled.

Bruce Douglas commenced working for Godfrey Haulage Ltd on Monday 24 September 2007, when he started a week's training. He duly completed this, and worked again the following Monday. Shortly after arriving for work on the Tuesday, he received a call from the managing director, Mr John Dynes, while he was in the smoko room (with others present). Mr Dynes told him he was to finish up immediately. When Mr Douglas asked why, Mr Dynes said he had done nothing wrong, but was too big for the job. He said Mr Douglas should look at joining a gym, and asked if he was a member of Southern Cross, as they would subsidise a stomach stapling operation.

In what may go down as the understatement of the year, the Authority commented that despite Mr Dynes' statement that his comments were intended to be supportive, there was always a risk that Mr Douglas would not see it that way.

The Authority focussed on whether the parties had agreed on a trial period of a week, as claimed by the company, or three months (as provided for by the collective agreement). The Authority did not believe the employer's claim. The inevitable result of this, and the lack of any process, was that his dismissal after one week was unjustified. The Authority awarded him $14,500, including $4,000 compensation for humiliation.

The dispute about the trial period meant the Authority did not focus on whether Mr Douglas could have been dismissed justifiably because of his weight. Mr Dynes was quoted in this New Zealand Herald report as saying Mr Douglas couldn't climb the truck ladder properly, wasn't agile enough loading and unloading, and even that the "gear lever got stuck because his obese leg got in the way". Mr Dynes went on to say that "in the end I had to let him go because he was in danger of hurting himself and just couldn't do the job safely."

If Mr Douglas really couldn't do the job, then the company would probably have been justified in dismissing him, at the end of the three month period provided for by the collective, provided it followed a fair process. However, it would have needed proper evidence that his obesity was preventing him from doing an adequate job, and it would have needed to show it had explored all realistic alternatives to the dismissal.

Even then, Mr Douglas could have chosen to claim disability discrimination. "Disability" is defined very widely in the Human Rights Act, and it is likely that obesity could in some cases be a disability. Cases in the US brought by obese people have already succeeded in establishing that obesity can be a disability, despite the narrower definition in the US legislation.

The Human Rights Act does not prevent differential treatment of disabled people, where they can only do the job with the aid of special services or facilities that it is not reasonable to expect the employer to provide. However, the employer would need proper evidence to rely on that defence, and would have to follow a fair process.

Telling Mr Douglas that he was fired after one week, without even discussing it with him first, was not exactly the best way of handling it.

 

Greg Cain

Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.

 

 

Image: Bay of Plenty Times