Obese Security Officer Not Discriminated Against

Employees who experience discrimination due to a disability should consult employment discrimination lawyers. An employee is discriminated against when he or she is treated unfavourably than others at the workplace. An employee may also experience discrimination or an adverse action because they exercised a workplace right. However, not all actions of an employer that affect an employee adversely can be considered as “discrimination” or “adverse actions”.

A transfer from one workplace to another may affect an employee adversely because the employee would need to take more time to commute to work and incur more expense for the transportation costs. However, a transfer may or may not always be considered an act of discrimination or an adverse action.

In the case of Findley v MSS security Pty Ltd [2017] FCCA 2898, a security firm engaged a man to work as a security officer at a university. When the employees at the security firm were negotiating a new enterprise agreement, the security officer acted as a self-appointed bargaining representative and opposed its approval. The security firm then investigated his employment records, particularly his employment history and accused him of lying on his employment form by not referring to his previous work with another security firm. The security firm discovered that the security officer had previously lodged an unfair dismissal claim against the former employer.

In the meantime, the university itself asked for the security officer to be replaced. The university asserted that because the security officer was obese, he would not be able to perform the obligations required of him as security officer assigned to the control room.

The security firm sought to transfer the security officer to a new workplace assignment about 65 miles away. He refused to transfer unless the employer paid him $48,000 on top of his annual salary for the travel time to the new workplace. He also demanded work that would not require him to walk for more than five minutes every working hour. After he refused alternative positions in other workplaces, the security firm terminated his contract.

The security officer claimed that his transfer to the new workplace was prohibited as it would be detrimental for him given his obesity. When the security firm refused, the security officer claimed that the security firm refused to make reasonable adjustments to accommodate his handicap.

The security officer filed an adverse action claim against the security firm and a discrimination claim against the university. He asserted that his removal from the university was an adverse action because he opposed an enterprise agreement. And that he was discriminated against because of his obesity.

The Federal Circuit Court held that the security firm incorrectly accused him of lying on his employment form for failing to provide information that was not required of him to supply. However, the inquiry into the security officer’s records was not due to an adverse action. The inquiry was performed because he had claimed that he had a disabling condition (obesity) but in his employment form, he did not state any medical condition that would stop him from performing the inherent requirements of the job.

If you are in the Perth area and you feel that you have experienced discrimination at work or an adverse action from your employer, you should talk to a workplace lawyer in Perth. Call us today and speak with any of our workplace discrimination lawyers who are willing and able to help you.

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