Welcome to Fair Work Friday! This week we are looking at a case from the Fair Work Commission (FWC) that is bound to raise some eyebrows. It involves an industrial equipment supplier, an employee with a massive history of sick leave, and a warning letter that ultimately cost the employer money.
If you have ever wondered how a business can lose an unfair dismissal case when the employee has taken over 150 days off, this one is for you.
The Case: The Slip-Up on the Warning
The employer, All Lifting & Safety, dismissed an employee in October last year because of his ongoing failure to attend work on a regular basis. In court, the employer pointed out that the employee had taken more than 150 days off since he started with the business in 2022.
Believing they had a rock-solid, defensible reason to terminate, they proceeded with the dismissal. They had even issued a warning to the employee previously, so they felt their legal bases were covered.
The Ruling: A Process Flaw
In the FWC, Commissioner Scott Connolly agreed that the employee’s regular absences were indeed a valid reason for dismissal. However, the employer’s defence crumbled because of a major procedural flaw: they had not actually warned the employee about his attendance.
When the Commission reviewed the evidence, the only written warning the employee had received was specifically about failing to notify the employer on the day of his absences. As Commissioner Connolly pointed out:
“It wasn’t about his absences, it wasn’t about that he took a lot of sick leave. It explicitly says, ‘This is for failing to notify me of your absences’.”
Because the warning was about communication rather than the actual volume of leave, the employee was never formally put on notice that his attendance record was putting his job at risk. To make matters worse, the employee was dismissed verbally, and the employer ignored his written request for the reasons behind his termination.
Weighing this up, the Commissioner ruled the dismissal was harsh, unjust, and unreasonable.
Because it was highly unlikely the employee’s attendance would have improved anyway, the Commission did not order reinstatement. Instead, the employer was ordered to pay $1,809 in compensation, representing the seven weeks it would have taken to run a proper, fair termination process.
How to do it better:
- Align the warning with the exact problem: If an employee’s high number of absences is the issue, the warning must explicitly state that their attendance is unacceptable, not just that they forgot to call in.
- Keep a paper trail: Always confirm a dismissal in writing and provide the specific reasons if requested. Ignoring a request for written reasons is an immediate red flag for the Commission.
- Do not skip the steps: Even if the outcome seems inevitable, you must give the employee a clear warning of the exact issue and a genuine opportunity to improve.
The Bloom HR Takeaway: A Note from Nat
I know what you are thinking: How on earth does someone who took 150 days off end up winning compensation? It feels completely counterintuitive as a business owner or leader.
But this case highlights a critical area of employment law that many organisations trip over: the rules around sick leave and temporary absences.
Under the Fair Work Act, you cannot dismiss an employee simply because they are temporarily absent due to a personal illness or injury. This is a strictly protected right.
So, when can you address attendance issues if someone is genuinely sick?
- The Three-Month Rule: An employee is generally protected from dismissal for being sick for up to three months (either in one consecutive block or accumulated over a 12-month period), provided they are on unpaid leave. If they are still using accrued paid sick leave, they are protected indefinitely.
- When Paid Sick Leave Runs Out: Once an employee runs out of paid sick leave and has been absent for more than three cumulative months in a year, they are no longer protected by the temporary absence rules.
- The Inherent Requirements Process: Even when that three-month protection ends, you still cannot just fire them instantly. You have to go through a formal process to establish whether they can perform the inherent requirements of their role in the foreseeable future. This requires medical evidence and genuine consultation, not just a sudden termination.
- Absences Without Evidence: If an employee is regularly taking sick days but failing to provide medical certificates, or failing to notify you according to your policies, you can manage this as a conduct or performance issue.
In this case, the employer was right about the employee’s poor attendance, but they were legally wrong in how they handled the termination. They confused a communication issue with a capability issue, and failed to put the real problem in writing.
Don’t wait for a costly tribunal loop to realise your warning letters are missing the mark. Clear, specific documentation and a fair process are your best protection.
Are your managers equipped to navigate complex employee issues, or are your warning letters leaving you exposed? At Bloom HR, our HR Advisory service specialises in manager training and support for difficult terminations, ensuring your processes remain fair and transparent, especially when managing complex attendance and performance concerns.
Call us on (02) 8114 4449 or book a time with our Founder here for a first free consultation Book time with Natalie Carrington: Free 30 Minute HR Consultation
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