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| too fat to work? should obese employees have special rights? | | | | Date: 05 Jul 2010 | back | | | It was recently reported in the media that in the case of PSA obo October v Department of Community Safety, Western Cape (2010) 19 PSCBC 3.5.1 an obese traffic officer alleged that his employer had acted unfairly by refusing to grant him temporary incapacity leave when his ordinary sick leave had been exhausted. The employee suffered a number of maladies, including severe gout, diabetes, and high blood pressure. The employer declined to authorise the temporary incapacity leave, citing the self-inflicted nature of the health problems as the reason for their decision. The employee was upset with this and alleged that the employer had not done enough to assist him with his problems.
It turned out that the employer had actually been attempting to assist the employee for a long period of time and that the Employee Assistance Program officers had been encouraging him to join the gym and receive psychological counselling. This assisted him to lose a small amount of weight, however, he was still morbidly obese. The EAP officer was of the opinion that the employee had not done enough to help himself.
The arbitrator stated in his ruling that temporary incapacity leave was not a statutory entitlement that was afforded to all employees in all circumstances. The arbitrator found that the granting of temporary incapacity leave was ideally suited for those employees who were incapacitated through no fault of their own or had medical conditions brought on by the working environment. Furthermore, the employee's illnesses were clearly due to his excessive weight which was a direct result of his unhealthy and indulgent lifestyle. Consequently the arbitrator found that the employer had no obligation to grant the temporary incapacity leave and the employee's case was dismissed.
This case is interesting as the decision is premised on the idea that the employee was the author of his own misfortune due to his lifestyle. On the other hand, employers are enjoined to treat employees suffering from alcoholism and drug addiction in terms of incapacity procedures. Possibly in future an obese employee may argue that his or her condition is as a result of an addiction that warrants special treatment as an incapacity issue much like alcoholism and drug abuse is. It may be more difficult to successfully resist a claim such as this case if that approach is followed.
By Verlie Oosthuizen (Associate Partner: Employment Law Department)
| | | | | | | Please note that this LAW REVIEW is published for your information only. It does not purport to be comprehensive or to provide specific legal advive. You should not act on the information given in this publication without first obtaining professional advice. |
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