Union delegate fired for “fat-shaming” comments was not unfairly dismissed

Cases

Union delegate fired for “fat-shaming” comments was not unfairly dismissed

A worker who was sacked for commenting that her manager had “natural extra padding” has lost an unfair dismissal case.

A worker who was sacked for commenting that her manager had “natural extra padding” has lost an unfair dismissal case. 

Julia Bastoni was working as a market research interviewer at ORC International and was also working casually as a union delegate for the National Union of Workers (NUW). On 26 May, Ms Bastoni requested her boss turn up the heating. When the manager denied the request, saying that she didn’t feel cold, Ms Bastoni responded by telling the manager that was because she had “natural extra padding.” The unnamed supervisor told the commission she felt anxious, upset and humiliated by Ms Bastoni’s words.  

Employee claims "basic science" 


According to Ms Bastoni, her comments about her manager’s body were not intended to be “fat-shaming” because “there seems to be some basic science to the effect that skinny people experience the cold more than overweight people.”  

She argued that ensuring a large number of employees had a warm work environment was “more important” than the fact that she pointed out something her boss “may not have realized due to a lack of personal insight about her body habitus.” According to Ms Bastoni, this was evident in the fact that “the point was taken and the heating was turned on.”

Prior warnings


Before the incident, Ms Bastoni already had two official warnings. Ms Bastoni’s past indiscretions were referred to in her letter of termination which read “The two complaints mentioned in this letter are not isolated incidents and represent further – and more serious – breaches of ORC’s policies and procedures, especially in regard to bullying and harassment.”

In a prior incident, Ms Bastoni was sent home from work for using her mobile phone which is banned according to ORC’s company policy.  Unhappy with what had happened, Ms Bastoni later sent her boss a Facebook message criticising the disciplinary action, writing that the rule about mobile phones was “demeaning and childish” and “I know you are a stickler for rules but I wonder if they pay you enough to feel good about undercutting me.”

Behaviour “disrespectful and unacceptable" 


The commissioner, Deputy President Clancy, rejected Ms Bastoni’s arguments, stating that her claim that her behaviour during the “extra padding” incident was for the greater benefit of other employees “beggars belief.” The behaviour was found to be “disrespectful and unacceptable.” 

Deputy President Clancy, also rejected Ms Bastoni’s argument that her comments about “natural padding” were “euphemistic instead of demeaning,” because “a euphemism simply involves the substitution of roundabout or vague language for that which is harsh or blunt.”

According to the commissioner, Ms Bastoni’s body related comments were “part of a pattern of increasingly belligerent and disruptive behaviour” and her dismissal had not been harsh, unjust or unreasonable as s 387 of the Fair Work Act requires for a successful unfair dismissal claim. 

Read the judgment 


Julia Bastoni v ORC International Pty Ltd (U2018/6390 [2019] FWC 38
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