​Obese security guard not discriminated against

Cases

​Obese security guard not discriminated against

An obese security officer who refused roles that would require him to walk more than five minutes per hour has been unable to prove he was indirectly discriminated against.

WantToReadMore

Get unlimited access to all of our content.

A security officer who refused roles that would require him to walk more than five minutes per hour has been unable to prove he was indirectly discriminated against. He was also unable to prove adverse action for his role in enterprise bargaining.

Background


Joshua Findley claimed that his employer, MSS Security, took adverse action against him when he exercised workplace rights within the meaning of s341 of the Fair Work Act 2009. He also claimed that his employer discriminated against him because of his disability, exerted undue influence or pressure and coerced him in breach of s351(1), s344 and s343(1) respectively.

Mr Findley had been hired as security officer. He was assigned to work at Deakin University, which was a client of his employer. He was assigned duties in the control room of the site.

On 19 May 2016, Mr Findley, as a self-appointed barganing representative, applied to terminate the MSS Security Enterprise Agreement 2011. He appeared in the Fair Work Commission for proceedings.

On 1 June 2016, the company’s HR/IR manager sent a letter to Mr Findley alleging that he had misrepresented his previous experience or provided false or misleading information in his resume and application. The manager said he had not listed his past experience with Diamond Protection, working at La Trobe University. The letter stated the allegations may result in disciplinary action, including dismissal. This letter came after other correspondence about the bargaining process.

Irrelevant experience?


The HR/IR manager said that he looked at Mr Findley’s CV because he made an application to have an existing enterprise agreement terminated. “Subsequently, one of my colleagues…informed me that she had done a search for Mr Findley…and noted he had been involved with several other matters in the Commission involving Diamond Protection,” he said, adding that at this point he looked up his career history on his CV.

Findley denied the relevance of this experience, as it was casual and involved different duties, and felt he was being targeted for his role in protected action.

An investigation by the employer found that it was “implausible” that the experience was irrelevant as the role was a security role on a university campus. It added that Mr Findley’s role as an employee bargaining representative had “no bearing on our investigation”.

Alleged discrimination for morbid obesity


In October 2016, Deakin University met with MSS Security to discuss “work issues”, specifically three videos that showed Mr Finley in the control room on one shift doing non-work related tasks while at work. The university also alleged that Mr Findley had failed to create a log entry for 17 alarm activations. The university requested the worker’s removal from his role.

The HR/IR manager asked the university to reconsider its decision and later suggested he be put on a final warning and apologise instead. The university rejected the suggestions.

The HR/IR manager directed Mr Findley not to attend the university and met with him to discuss transfer to alternative employment. Mr Findley stated he would only consider roles that were “reasonably equivalent” to his previous one. He stated that because he was “a big guy” any position that required him to stand or walk for periods of time would not be suitable and that if he was to transfer to Melbourne from Geelong travel time and costs would need to be compensated for.

Mr Findley’s updated resume was forwarded to a client who declined to take the worker on. Three opportunities were available in Melbourne so the HR/IR manager wrote to Findley asking him to indicate his preference. Information about the roles was provided on the same day. 

Mr Findley declined all the offers, writing that he would not be compensated for travel costs, the travel time without compensation was excessive and he could not physically perform the roles. He claimed his departure from his role was orchestrated by the employer with the assistance of a Deakin employee. He also said his employer deliberately assigned him to a position he could not do and later told him it would terminate his employment if he did not work in the offered role. Mr Findley claimed this amounted to indirect discrimination. Eventually Mr Findley’s employment was terminated and he was provided one week's pay in lieu of notice.

Judgment


Judge McNab said there was no evidence of any collusion between Deakin University and the employer. He noted the university was not a party to the Fair Work Commission proceeding. The evidence showed the university was dissatisfied with Mr Findley’s performance and, despite the HR/IR manager’s efforts to persuade it otherwise, it had no interest in the worker as an employee.

Mr Findley contended that his role was as a control room operator in Geelong but the judge found this was not supported by the words of his contract or the job advertisement he answered. He was appointed as a security officer and agreed to perform duties at any site which the company had contracts with and these duties were not limited to operating the control room.

“The stipulation by Mr Findley was that he could not perform work as a security guard that involved more than five minutes walking per hour meant that he could not perform the inherent requirements of the job he was employed to perform,” Judge McNab said. “The respondent had not discriminated against Mr Findley by seeking to impose conditions upon him which he would be unable to satisfy”.

The employer had made many attempts to find him alternative employment. Once Mr Findley refused the positions available for him there was no work for him and his employment was terminated in accordance with his contact. “I dismiss those parts of his claims relating to termination of employment and discrimination”.

As for the adverse action claim, the judge found that Mr Findley was “not obliged to refer to entire work experience including work experience with another security company when submitting his application” and a failure to disclose information unasked is not evidence of lying or grounds to terminate employment. 

“The respondent’s disproportionate response in this instance has plainly made Mr Findley feel unfairly targeted and he has suggested the only rational reason for such a response was his role as self-appointed bargaining representative…Whilst I understand and appreciate the view put by Mr Findley, I do not accept,” Judge McNab said.

The judge thought that while the employer was motivated to look at Mr Findley’s past work as a result of investigations conducted because of the enterprise bargaining, it was not the reason for the employer to raise the issues it found. Instead, it was because of an incorrect belief in what it considered to be misconduct. The employer discharged its onus in establishing that motives considered adverse action were not the “substantial or operative reason for acting". It also found the employer did not coerce or exert undue influence when sending the letter of allegations.

The application was dismissed.  

Findley v MSS Security Pty Ltd [2017] FCCA 2898 (24 November 2017)
Post details