An “emotional eater” has been in her job for 16 years but has been told that she needs to lose weight or she’ll be sacked.
Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn give advice on whether an employer can fire someone for being too fat.
I’ve been working for the same employer for 16 years as a dance teacher. I love my job and have a big passion for dance. Over the past five years, I’ve put on a lot of weight. I’m an emotional eater and it’s been a tough few years for me with Covid and other personal problems.
I know I need to lose weight but I find it hard to stop bingeing on junk food.
Recently, the owner of the dance school took me aside and said I need to lose weight or I might lose my job. She said that my weight means I can’t do my job properly – she says I’m not fit enough to demonstrate moves, get out of breath doing simple tasks, and that I’m a bad example to the kids.
I feel bereft as my job is one of the only things I have left that brings joy into my life. Can I really be sacked for being too fat? – Audrey, NSW
You can’t be sacked for being too fat. You can, however, be sacked if you are not performing your job to the required reasonable standards and ultimately not meeting the inherent requirements of your role.
That said, it sounds like your employer has not effectively communicated her concerns to you or given you an opportunity to improve your performance, so any termination of your employment at this stage could potentially be unfair dismissal.
We will outline your rights in terms of underperformance and termination of your employment.
However, these issues, particularly for longstanding employees like yourself, can sometimes be addressed through effective communication, so we encourage you to firstly take some proactive steps to protect yourself.
You should ensure you are familiar with your employment contract, any position description, your employer’s policies and practices about your role and what is expected of you.
If this is not clear, you could sit down with your boss and ask her to explain (verbally and in writing) the expectations of your role, and notify you of the expectations you are and are not meeting.
You can ask to take a support person along to this meeting if it would make you more comfortable.
If you need more training or support from your employer, you should raise it at this time and again confirm in writing.
The performance expectations and any underperformance should be limited to the tasks themselves and not be associated with any personal characteristics or your appearance (such as your weight).
Sometimes an employer can have unreasonably high expectations, unjustified criticism and excessive scrutiny of an employee’s performance.
There can be a fine line between constructive criticism and bullying. If you think the line has been crossed, this occurs repeatedly over a period of time and impacts your health and safety, it could constitute workplace bullying, which is unlawful.
Action can be taken in the Fair Work Commission to stop bullying at work.
You will also need to work out if there are any rules or steps your employer must follow to manage underperformance, which would be outlined in your award, registered agreement, contract of employment or workplace policy.
Accessing your personal and annual leave entitlements could be something you consider to assist with your health. Your employer cannot unreasonably refuse to approve leave.
Your employer cannot take disciplinary action without a valid reason and without following a fair process.
This includes giving you sufficient time to fix the performance issues she has identified.
Disciplinary action could include a written warning about your underperformance which outlines in detail the reason for the warning, your employer’s expectations and consequences for not improving your performance over a reasonable time frame.
Termination of your employment should be a last resort if you are continuing to not meet reasonable expectations.
If ultimately your employment is terminated and you believe it was done unfairly, you should consider an unfair dismissal claim with the Fair Work Commission.
You have 21 days to apply to the Commission for unfair dismissal.
The laws around unfair dismissal vary depending on the number of employees your employer has.
Unfair dismissal and termination can involve complex legal issues so if this were to occur, you should quickly seek legal advice or contact the Commission for advice.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.
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