The summer months at the start of the year are invariably when each of us thinks about getting fit and losing weight. We make resolutions, we dream, we plan. Some even follow through by pounding the pavement or biting down on a salad, but by the time March rolls around most of us are right back where we started. Because we understand this struggle, the news that it is possible to be fired for being too fat may be frightening for many.

Australia’s Fair Work Commission has ruled that an obese forklift driver was fairly dismissed because his weight created workplace safety issues. Ranui Parahi worked as a cool room operator for dairy company Parmalat. When Parmalat management first called in occupational therapists to assess Parahi and other employees, he was found to weigh 165 kilograms, exceeding the forklift’s maximum weight. The occupational therapist found Parahi was of “medium to high risk” and raised concerns that he might not be able to safely and competently perform his job as a result of his weight.

At the occupational therapist’s second assessment Parahi’s weight had increased to 175 kilograms and a cardiologist’s report stated that Parahi had “severe obstructive sleep apnoea that may pose a problem with operating mobile machinery”. Accordingly, the occupational therapist advised that Parahi should only conduct work which did not require any heavy handling or operating mobile machinery for full-time hours.

Parmalat stood Parahi down for 10 months, during which time he was to attend appointments and assessments to address his fitness and health. His health did not improve and after meetings to discuss his future with the company, he was fired in May 2015.

Parahi complained to the Fair Work Commission that the dismissal was harsh, unjust and unreasonable. However, the Commission found in favour of the employer as employers are entitled to require their employees to be generally fit and well and suitable for the work they are performing.  They also said that Parmalat did not have to arrange further assessments before sacking Parahi as long as they provided, in a timely way, any relevant, current information to inform any decision-making concerning Parahi.

New Zealand law imposes similar obligations on employers under the good faith requirements of the Employment Relations Act which requires employers to be “active and constructive” and “responsive and communicative”. Additionally, employers must consult employees before a decision likely to have an adverse effect on the continuation of their employment is made.

In 2014 the New Zealand Employment Court case of Dunn v Waitemata District Health Board discussed the extent of employers’ obligations when dealing with an employee who is medically unfit for work. The Court stated that an employer is not required to keep a job open indefinitely where an employee is suffering from a prolonged illness. Much depends on the circumstances, including the employer's needs and what can and cannot reasonably be accommodated, and the anticipated timeframe for any return. A fair process must be followed. In the Dunn case, the dismissal was also held to be justifiable.

Alternatively it is possible that in a case similar to Parahi’s, that the law of frustration would apply. Frustration occurs when there is an unforeseen change of circumstances, through no fault of the parties, which means that the performance of an agreement will be either impossible or something radically different from that which was contracted for. Such cases are not considered dismissals but rather a termination by operation of law. The usual circumstances of frustration of employment relationships include sickness or injury.

Although the chances of being fired for obesity are very minimal and limited only to where it would impinge directly on your ability to fulfil your job, it is an interesting problem that has only recently been brought to the fore. Obesity has historically been a non-issue but as the 2015 New Zealand Health Survey found that 31% of adults in our country are obese, it is bound to be a developing area of employment law. I am sure we all, as New Zealanders, will watch with interest whilst trying to avoid being in the 31% of people at risk.