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Fat truckie's tale shows need for respect and process

The Dominion Post 23 May 2009

Truck driver Bruce Douglas was dismissed by Godfrey Haulage Limited by telephone for being too fat. He won his case for unjustified dismissal before the Employment Relations Authority this month.

Mr Douglas applied for the job and attended an interview in Mt Maunganui. He also attended a pre- employment medical examination with the employer's occupational health nurse. He was drug tested.

The nurse provided a pre- employment medical report which stated that Mr Douglas was work fit and recommended for the position. However, to be a good employee, the report said, he really needed to lose weight. It appeared that the employer did not read the report before the interview and it was not given to Mr Douglas.

In his interview, Mr Douglas was asked if he would have any problems getting up the ladder on the trucks because of his size. He said he would not. He was offered the position as a full-time driver based in Rotorua, requiring driving, loading and unloading. He was also advised that he would be given one week's training.

Mr Douglas commenced work, completed the week's training, and two days later received a phone call from Mr Dynes, the managing director of Godfreys. Mr Dynes asked Mr Douglas how he was getting on with the job. Mr Douglas responded that while it was different to long haul, he was enjoying the job and all was well.

Mr Dynes then told Mr Douglas that he thought he should finish up, stating that Mr Douglas should look at joining a gym or hiring a personal trainer to help him lose weight. He asked whether Mr Douglas was a member of Southern Cross, which would subsidise a $15,000 stomach stapling operation.

Mr Dynes told Mr Douglas that he had done nothing wrong, but he was just too big for the job and that he was to finish immediately.

Mr Douglas was tearful in the smoko room where others were present while he took Mr Dynes' phone call. He felt humiliated and upset.

Mr Dynes claimed his comments were intended to be supportive of Mr Douglas and made out of real concern for him. They were not received in that light and Mr Dynes ought to have appreciated that, the authority said.

As a result of his dismissal Mr Douglas lost his stockcar and both of his vehicles because he defaulted in payments. It was also necessary to place his house on the market for sale, and he had to borrow money from his family.

The authority found that Mr Douglas had been unjustifiably dismissed and in no way blameworthy for the situation. He was awarded $10,500 in lost wages. The authority also found that he suffered hurt, humiliation and injuredfeelings. Taking into account his employment was only over six days, Mr Douglas was awarded $4000 compensation.

An employee is required to be medically fit to complete the tasks required of them. They are obliged to complete the work that is reasonably provided for them by the employer, and must be in a state to be able to do so.

More than 25 per cent of New Zealanders over the age of 15 are obese, compared to the 13 per cent OECD median.

The case highlights that if an employer has concerns about an employee's medical fitness, they need to proceed carefully. Medical reports must be shown to an employee, particularly if they are to be relied upon to terminate an employee's employment.

Further, such matters should be addressed with sensitivity, so as not to unduly humiliate the employee.

Employees should be treated with dignity and respect. This applies whether the employee has been employed for six years or six days.

You don't dismiss a worker over the telephone. You don't dismiss them without a proper investigation and hearing. It makes no sense for an employer to employ someone having received, but possibly not considered, a medical report that they had before the person was employed that confirms that the person was fit for work - and then dismiss them for matters covered in the report. A real mess if ever there was one, but a mess that illustrates errors and how to do things properly.

Peter Cullen is a partner at Cullen - the Employment Law Firm

Email: peter@cullenlaw.co.nz

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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