A funds management firm, Whistle Funds Management Company, engaged a senior professional through his own consultancy company in 2012. By 2021, he had stepped into the role of Managing Director. Over the years, the financial reality of the relationship shifted significantly. He stopped taking outside clients, worked full-time from the company office, and drew a high fixed monthly salary that progressed from $250,000 to $300,000, finally reaching $350,000 by October 2023. This amount was paid regardless of whether he took leave or was absent due to illness, and he no longer had to invoice to be paid.

In March 2025, the company founder sent a series of emails issuing a strict directive: the Managing Director was to keep the founder informed of all conversations with a specific high-profile investor family, and he was explicitly barred from holding any discussions without the founder present under any and all circumstances.

Believing this directive placed him in an impossible position regarding his corporate and legal responsibilities, the Managing Director sent an email raising concerns and referencing legal advice. The founder immediately reacted with anger, and the Managing Director was terminated the following day. The company cited a broken-down working relationship. The Managing Director subsequently lodged a Federal Court claim alleging unlawful adverse action alongside claims for unpaid entitlements.

The Ruling

Justice Yaseen Shariff of the Federal Court ruled heavily in favour of the Managing Director in the case of Vize v Whistle Funds Management Company Pty Ltd [2026] FCA 831. The court first looked past the contractor label, using the dispute as a clean test of the statutory definition of an employee under Section 15AA of the Fair Work Act. Because of his $350,000 fixed salary, full-time integration, and lack of billing requirements, the court determined the arrangement had transitioned into an employment relationship back in July 2017.

On the adverse action claim, the founder admitted under cross-examination that he was “absolutely annoyed” by the email raising legal objections. The judge described parts of the founder’s account as “unimpressive, unsatisfactory, unreliable, combative and inconsistent”, concluding that this personal irritation was a substantial and operative reason for the termination. Sacking an employee because they made an inquiry or complaint in relation to their employment is a direct breach of section 340 of the Fair Work Act.

Because the worker was deemed an employee, the court declared that Whistle Funds breached the law by failing to pay out accrued annual leave on termination and failing to pay superannuation from January 2024. The court also ruled he was entitled to six months’ notice and back-dated long service leave under NSW law stretching back to 2017. While the company’s liability has been firmly established, the court has reserved the final multi-year calculations for damages, compensation, and statutory penalties, listing the matter for a case management hearing on 16 July 2026.

How to do it better

• Review high-level contractor structures regularly: Just because an executive is paid a high fee through an ABN and charges GST does not make them a contractor. If they work exclusively for your business, receive a regular fixed amount, and operate as part of the internal leadership team, the law will view them as an employee.
• Pause before reacting to pushback: When a senior leader objects to a business directive or mentions legal parameters, treating that complaint as insubordination or a culture problem is highly risky. Emotional or reactive terminations following a formal complaint almost always trigger adverse action risks.
• Document objective performance or structural issues early: If a relationship is genuinely breaking down, it must be managed through objective, documented communication over time, rather than a sudden termination immediately following a disagreement.

The Bloom HR Takeaway

This case is a stark reminder that the general protections framework protects everyone, from an entry-level trainee right up to a Managing Director drawing $350,000 a year. While the high-income threshold prevents top earners from filing standard unfair dismissal claims in the Fair Work Commission, there is no income cap on adverse action claims in the Federal Court.

Furthermore, you cannot contract out of Fair Work minimum entitlements, and you cannot rely on past contractor billing history to stop a worker from claiming employee rights later. When an executive is misclassified, the financial exposure for back-dated annual leave, long service leave, notice periods, and superannuation over multiple years can easily climb into the hundreds of thousands of dollars. Leaders must separate personal frustration from objective business decisions, ensuring that tough internal feedback is met with professional dialogue rather than a swift exit.

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In June 2025, a manager at Freight Victoria was informed by two directors that a specific project officer role, which previously reported directly to her, was being temporarily reassigned to the commercial ports team for a 12-month period. The directors explained that this adjustment was temporary and based on feedback regarding her leadership approach.

The manager did not see it as a minor operational adjustment. Instead, she interpreted the structural change as a direct demotion and a calculated attempt to push her out of the business. In response, she resigned from her position and subsequently lodged a general protections application with the Fair Work Commission, claiming she had been constructively dismissed.

The Ruling

The Fair Work Commission completely rejected the manager’s claim. Deputy President Ian Masson ruled that she was not constructively dismissed and had ‘simply no basis’ to believe she was being forced out of her role.

The Commission’s investigation revealed that the employer’s decision to shift the reporting line was actually a proactive management step. Rather than trying to eliminate her position, Freight Victoria management was genuinely anxious to retain her. The change was driven by a genuine and balanced concern to protect the psychological safety of an incoming subordinate while simultaneously offering active coaching to help the manager develop into a more effective leader.

This decision was backed by formal staff complaints from project officers in 2022 and 2024 regarding the manager’s style. Subordinates noted she was frequently unavailable for guidance and addressed basic performance issues in a hostile manner. The Commission reaffirmed that constructive dismissal requires an employer to leave a worker with ‘no real choice’ but to resign. Reasonable management actions, such as altering reporting structures or adjusting responsibilities in good faith, do not meet this threshold.

How to do it better

While the employer successfully defended this claim because they acted in good faith and had clear evidence of performance issues, minor missteps in communication can easily lead to costly legal disputes. To handle structural changes and leadership coaching smoothly, organisations should:

1. Document the ‘Why’ early: Maintain clear records of all performance feedback, staff complaints, and leadership coaching sessions. This provides an objective paper trail if a structural change is later challenged.
2. Over-communicate the intent: When temporarily altering reporting lines or duties, explicitly frame the change in writing as a supportive development step rather than a disciplinary measure.
3. Outline clear timelines and support: Set defined boundaries for temporary restructures, detailing exactly what milestones need to be met and what training will be provided to help the manager succeed.

The Bloom HR Take Away

A restructure or a shift in operational responsibilities is not automatically a constructive dismissal, provided it is handled reasonably and for a legitimate business purpose. This ruling is a reassuring reminder for Australian employers that you are fully entitled to manage your teams, protect the psychological safety of your staff, and implement leadership development strategies without fear of forced resignation claims.

The secret to success lies in your intent and your execution. When you approach performance challenges with a genuine desire to coach and retain your people, and support those actions with robust documentation, you protect your organisation while building a healthier workplace culture.

The post Fair Work Friday: When a change in reporting lines isn’t constructive dismissal appeared first on Bloom HR.

The Case: Re Kristan Heidel v University of Notre Dame Australia

A program manager at the University of Notre Dame, responsible for managing a rural health grant, frequently struggled with incomplete tasks, vague accountability, and pushing deliverables onto other team members.

When her acting line manager began directly addressing these performance gaps through professional emails and requests for progress updates, the employee resisted accountability. She routinely pushed back, claiming she didn’t understand deadlines or that the tasks fell outside her responsibility.

The tension peaked when the manager issued a formal invitation to a performance meeting to discuss implementing a Performance Improvement Plan (PIP). That exact evening, the employee lodged a stop-bullying application with the FWC, claiming that the ongoing monitoring and formal meeting request constituted workplace bullying.

The FWC dismissed the employee’s application entirely. Commissioner Stephen Crawford noted that the employee was challenging to manage and actively resisted accountability.

Crucially, the Commission emphasised that employees cannot expect to avoid standard scrutiny of their performance by simply launching a workplace bullying claim.

While the Commission noted a minor administrative oversight by the university (an HR partner had accidentally forwarded a confidential query from the employee back to the manager), this did not alter the core facts. The manager’s communication remained professional, focused entirely on work delivery, and was deemed a classic example of reasonable management action carried out in a reasonable manner.

How to do it better: A strategic approach to performance management

While the FWC will back reasonable management action, managing performance should never be a one-size-fits-all process. Crucial factors such as an employee’s length of service, age, seniority, and past performance history must heavily influence your HR strategy.

When dealing with long-serving employees who have no prior history of performance issues, an abrupt shift to a formal PIP can damage trust. Instead, consider these Bloom HR approaches:

• Adopt a performance development mindset: If a long-standing team member suddenly experiences a performance slump, don’t head straight for a rigid PIP. Frame the initial process as performance development rather than improvement, shifting the focus onto support, guidance, and capability building.
• Lead with relationship leadership and empathy: Start from a place of understanding. Ask what is happening behind the scenes. A performance slump is often driven by systemic changes, new technology, or organisational restructuring that an older or long-standing employee may be struggling to navigate.
• Break poor habits gently but firmly: Years of non-management or shifting company structures can breed bad habits. You can realign expectations through increased supervision, clearer guardrails, and frequent informal feedback sessions to change behaviours that have formed over time.
• Document everything, including informal support: Taking a gentler, relationship-driven approach does not mean skipping the paperwork. Keep records of the emails, meetings, phone calls, offers of support and agreed actions. If performance does not improve and a formal process becomes necessary, this documentation ensures you can justify and outline to the employee the attempts before implementing a formal process.

The Bloom HR Takeaway

Addressing underperformance can be one of the hardest, most fraught, not to mention time consuming processes for managers and it’s not uncommon for employees to mistake constructive feedback for a personal attack. This FWC ruling serves as a reassuring reminder for Australian employers: you have a fundamental right to manage your team and hold them accountable to performance standards, but its not a one size fits all. Ensure to consider all the factors before your embark on a formal process. Put the human back into Human Resources!!

Either way, it’s comforting to know that Fair Work is ruling by the law. And reasonable management actions ARE NOT bullying. The trick is knowing what is ‘reasonable’, and that can be different for each case.

Facing a difficult performance conversation?

Don’t go it alone or guess the legal boundaries. Book a free 30-minute chat with the team via our booking page, and we will give you a compliant PIP and warning letter template to ensure your business stays protected.

The post Fair Work Friday: Performance Scrutiny Is Not Workplace Bullying appeared first on Bloom HR.

The Federal Court of Australia handed down a staggering $2.8 million financial blow to the Hawkesbury Race Club. A highly successful marketing manager who had been with the club since 1991 was subjected to a relentless campaign of workplace bullying, micromanagement, and intimidation by the club’s newly appointed CEO. Over multiple months, the CEO withheld her bonuses, flooded her inbox with argumentative emails, and questioned her integrity. When she raised the immense stress this was causing her, the board failed to step in or launch a proper investigation. Instead, they backed the CEO and placed the employee on a performance management plan. As a direct result, the employee suffered a permanent, severe psychiatric injury and could never return to work.

The Ruling

The Federal Court found the employer directly negligent and vicariously liable, ordering them to pay a record $2.8 million in damages, penalties, and interest. The breakdown included over $1.1 million for past economic loss, nearly $870,000 for future economic loss, and personal statutory fines for both the club and personally to the CEO. The judge made it clear that the club’s total failure to activate a proper workplace investigation or respond adequately to the employee’s complaints effectively destroyed her livelihood.

Why this matters (and why I’m appalled)

As the Founder & CEO of Bloom HR, I have to call this out: This is the ultimate, catastrophic consequence of an organisation protecting an executive’s ego over an employee’s safety.

To see a board look the other way when a long-standing, high-performing employee explicitly says she is drowning in stress is worse than unethical. I can image the racing fraternity to be a boys club, but this poor woman will never be the same. Turning a blind eye to an overbearing, toxic executive won’t stand any longer. This case proves. that. Boards must act and act unbiasedly and ethically – or face massive financial and legal liability.

The court’s decision sends a clear, costly message to all Australian organisations: you cannot treat an employee’s legitimate psychological distress as a “performance issue” or have different rules for the C-suite.

How we can do it better

This landmark case leaves HR and business leaders with a clear message regarding psychosocial hazards and executive accountability.

• Zero Executive Immunity: No matter how senior a leader is, or how much revenue they generate, they are not above the law. If an employee lodges a complaint against a CEO, the board must act independently and immediately.
• Trigger Independent Investigations: When a power imbalance exists, even internal HR may feel compromised or afraid to speak out. Boards should be engaging an external, independent workplace investigators to ensure a fair, unbiased process.
• Listen to the Red Flags: When an employee reports that workplace behavior is impacting their sleep, mental health, or well-being, that is a formal alert. It requires a documented risk assessment and immediate intervention, not a performance management plan.

The Bloom Takeaway

Workplace culture starts at the top, but accountability stops at the courtroom door. If you choose to protect a toxic bully in a leadership role, prepare to pay the price, both culturally and financially.

Managing complex workplace grievances and compliance requires expert care.

Would you like a free consultation to discuss a current HR issue keeping you up at night? Or are you considering outsourcing your HR so we can get on with your business?

Call us on (02) 8114 4449 or schedule a free 30 minute consultation.

The post Fair Work Friday: $2.8m Workplace Bullying Outcome appeared first on Bloom HR.

National charity organisation The Smith Family has entered into an Enforceable Undertaking after self-reporting more than $5.9 million in underpayments affecting 784 current and former employees.

The Case: How a Lack of Systems Creates Massive Underpayments

Between 2016 and 2024, staff across multiple departments: including education program workers, managers, engagement advisors, and back-office corporate teams in marketing, accounting, and HR: were paid incorrectly.

The charity self-reported the non-compliance to the Fair Work Ombudsman in 2023 after identifying the discrepancies during an internal review. The total back-payments reached $5.912 million, which includes underpaid wages, superannuation contributions, and interest. Individual back-payments ranged from $1 to over $121,000, with an average payout of about $7,900 per person.

The Back-Story: The Two Fatal Compliance Mistakes

The Fair Work Ombudsman investigation found two clear systematic failures that allowed these underpayments to go unnoticed for eight years:

• Award Confusion: The organisation lacked adequate systems to correctly identify which industrial instruments, such as the correct modern award or Enterprise Agreement, applied to specific employees. This meant many staff missed out on minimum rates, overtime, allowances, and public holiday pay.
• The Classification Trap: Even when they identified the correct framework: like the Social, Community, Home Care and Disability Services Industry Award (SCHADS Award): they unlawfully classified employees at a lower grade than was appropriate for their qualifications, experience, or actual duties.

Because the charity failed to conduct regular payroll and classification reviews, these errors compounded year after year.

How to do it better:

• Audit Your Classifications: Never look at a job title alone when determining pay. You must map the actual day-to-day duties, decision-making responsibilities, and required qualifications against the specific award definitions.
• Implement Automated Systems: Moving away from manual or legacy tracking is crucial. Part of The Smith Family’s commitment under the Enforceable Undertaking is implementing an automated time-and-attendance system to ensure proper tracking of hours and overtime.
• Schedule Routine Independent Reviews: Awards and enterprise agreements change regularly. Conducting an annual or bi-annual payroll compliance audit ensures a minor administrative slip-up doesn’t turn into a multi-million-dollar liability over a decade.

The Bloom HR Takeaway

In the small business and NFP space, leaders are often operating under tight budgets and managing complex funding models. However, this case demonstrates that compliance cannot be treated as a set-and-forget task.

The Smith Family did the right thing by self-reporting and fully cooperating, which is why they were able to sign an Enforceable Undertaking rather than facing litigation in court. But the financial and operational burden of fixing an eight-year oversight is immense.

The hidden trap here is the classification error. It is incredibly easy for a manager to place a new hire on a baseline level without checking if their qualifications or leadership duties automatically bump them up to a higher band under the SCHADS Award. When you multiply that single error across hundreds of staff over several years, the numbers add up quickly.

Ensuring your payroll systems match your actual award obligations is not just a matter of finance; it is about protecting the sustainability of your organisation and valuing the people who deliver your mission.

Are your modern award classifications accurate, or is a hidden payroll error risking your organisation’s compliance? At Bloom HR, our HR Advisory service specialises in award mapping, compliance audits, and system configuration to ensure your processes remain robust and transparent.

Call us on (02) 8114 4449 or schedule a free 30 minute consultation

The post Fair Work Friday: The $5.9 Million Award Classification Lesson appeared first on Bloom HR.

Navigating Fair Work compliance is about to change significantly for the community services sector. On 1 June 2026, the Fair Work Commission Full Bench handed down a landmark decision completely restructuring the Social, Community, Home Care and Disability Services Industry Award, known as the SCHADS Award. Prompted by an extensive review into gender-based undervaluation, the Commission determined the old framework was “no longer fit for purpose” due to its overwhelming complexity and multi-stream pay silos. This sweeping overhaul introduces a single integrated Final Classification Structure that fundamentally alters how employees are classified, how they progress, and what they must be paid.

The Case

The SCHADS Award covers the vast majority of social justice, charity, and care sector workers across Australia. For over a decade, employers operating under this award have had to juggle a fragmented system split across multiple schedules (Schedules B, C, E, and F). This multi-stream setup meant that employees performing work of comparable value were often subject to entirely different pay structures and rules. Managing rosters and cross-utilising staff across different service streams became a legal minefield, leaving many organisations highly vulnerable to unintentional misclassification, complex pay disputes, and severe underpayment compliance risks.

The Ruling

The Fair Work Commission historic ruling completely abolishes the old, separate award schedules and revokes the separate Equal Remuneration Order (ERO) framework, absorbing those rates into a new unified minimum wage scale. In their place, the Commission is introducing the Final Classification Structure (FCS).

The FCS applies universally across social and community services, home care, crisis services, and disability work. Instead of relying on rigid, task-based role descriptors, the new structure aligns classification levels directly with qualifications and equivalent experience (including lived experience).

While the new minimum rates mean wage adjustments vary from a 1 percent reduction to a 17 percent increase for general social and community services, some disability support workers could see pay increases of up to 27 percent. Crucially, the Commission has built in transitional protections, ensuring that if an employee’s current pay rate is higher than the new minimum, their higher rate is legally preserved so they do not suffer a reduction in pay.

The implementation follows a phased timeline:

• 1 October 2026: Applies to home care disability workers currently under Schedule E, who will receive an initial interim wage uplift of approximately 15 percent to fix the unjustified disparity between disability care and aged care roles.
• 1 October 2027: Full implementation of the Final Classification Structure across the rest of the entire sector.

How to do it better

This structural shift requires proactive workforce planning and a complete rethink of how performance and remuneration are managed.

Transition from task lists to evaluative capability mapping

Because the new structure replaces prescriptive role lists with broader criteria based on qualifications and equivalent experience, employers must make evaluative judgments. You will need to carefully assess whether an employee’s practical skills or lived experience are truly equivalent to formal qualifications to place them correctly on the new scale.

Establish robust performance and competency assessment frameworks

In addition, the Commission has made it clear that there is no automatic annual pay increments (though this was already in place). Pay point progression will only occur after an employee successfully demonstrates competency and satisfactory performance. Organisations must implement clear, objective performance review processes to support these progression decisions and minimise the risk of industrial disputes when progression is withheld.

Execute strict labor cost modelling before the NDIA review

While the Commission suggested these changes would not require significant additional Commonwealth funding, employers are facing material labor cost increases, particularly in disability support segments. Organisations must model these cost impacts immediately while awaiting the National Disability Insurance Agency (NDIA) Annual Pricing Review results to understand the full financial impact on their operating budgets.

The Bloom HR Takeaway

At Bloom HR, our vision is to create workplaces where people feel valued and empowered to reach their full potential. This landmark restructuring represents a major long-term win by removing the convoluted silos that have complicated community sector administration for years. However, transitioning an entire workforce to a brand-new classification matrix and introducing performance-linked award progression requires significant HR expertise. Utilising professional outsourced HR solutions is a highly effective way to navigate this transition smoothly, audit your position descriptions, and protect your organisation from compliance risks.

To discuss how we can help you automate these processes using a digital engine that is efficient and affordable, reach out at hello@bloomhr.com.au | call +61 2 8114 4449 | or book in for a free 30 minute meeting at a time that suits you.

The post Fair Work Friday: SCHADS Award classification and pay structures? appeared first on Bloom HR.

Supporting an event dedicated to the wellbeing of this workforce is exactly where we belong, because we believe the people doing the most important work in our community deserve the highest calibre of support. 

I would like to extend our thanks and gratitude to the team at Q Shelter for inviting us to be part of such a wonderful day for the sector.  Huge thanks also to Courtney Pomerenke from our digital partner, Employment Hero, who joined me on the day to demonstrate the HRIS modules we can deliver to our clients.

The Value Impact Chain: Psychosocial Safety as a Foundation

In my closing address at the summit, I spoke about the Value Impact Chain. It is a mission-driven spin on the traditional Value Profit Chain: the simple truth that when you look after your staff, they are empowered to look after your clients.

But looking after staff isn’t just about encouraging resilience; it is about ensuring psychosocial safety.

In many organisations, the chain is weighed down by mechanical friction and systemic stressors: manual salary reviews, tracking expired police checks, and clunky or non-existent performance frameworks. When these structures are manual or missing, it contributes to a workplace environment fraught with administrative burden and burnout.

The shift is simple but powerful:  By removing the compliance weight and silencing the administrative noise, you move towards your positive duty to provide a safer workplace. It frees your people to focus on what truly matters; coaching, professional development, and the customer. When your team is protected by a mature foundation, they have the emotional and professional capacity to truly inspire the communities they serve. 

To find out how we can help bring this to your organisation, I’d love to hear from you. I can be contacted on 02 8114 4449 or email to hello@bloomhr.com.au.

The post Reflecting on the Thrive at Work Summit 2026 appeared first on Bloom HR.

Welcome to Fair Work Friday! This week we are looking at a decision from the Fair Work Commission (FWC) that highlights how procedural flaws in a workplace investigation can lead to significant legal liability.

A Passenger Services Agent at Perth Airport was recently awarded over $36,000 after the Commission found that her employer’s handling of a sexual harassment complaint left her with no real choice but to resign. This is a clear example of constructive dismissal, where the organisation’s conduct effectively brings the employment to an end.

The Case: A Process That Fell Short

The employee reported that a male colleague made inappropriate comments about her appearance. She rejected the comments, spoke to colleagues immediately after the incident, and reported it to a manager that same evening.

The employer investigated but ultimately concluded the allegations could not be substantiated because the accounts of the two parties did not align. However, the Commission identified several fundamental deficiencies in how that conclusion was reached.

The Ruling: Where the Employer Went Wrong

The FWC dismantled the investigation process, pointing to several key failures:

• Failure to interview witnesses: Even though the employee spoke to colleagues straight after the incident, the employer never interviewed them. While they weren’t there for the comment, their observations of her immediate distress were vital evidence.
• The “Agreement” Trap: The employer assumed that if stories don’t align, you can’t make a finding. In reality, a reasoned fact-finding process requires you to evaluate credibility and consistency to decide what most likely happened.
• Unequal treatment: The alleged offender received a written outcome quickly, while the complainant was only informed verbally much later. She had to chase the business for weeks to get a written outcome.
• Lack of reasonable adjustments: When the complainant asked not to be rostered with the other employee, she was told she would have to move roles or airlines. The employer made no real attempt to see if the offending employee could be relocated instead.

The Commission found that the cumulative effect of these failures was sufficiently egregious to make the dismissal unfair. The employer was ordered to pay $36,468.39 in compensation.

Are your managers trained to handle workplace complaints, or is your investigation process leaving you exposed? At Bloom HR, our HR Advisory service specialises in training and independent investigations, ensuring your processes are fair, transparent, and legally sound.

Call us on (02) 8114 4449 for a first free consultation | or schedule it directly here.

The post Fair Work Friday: The $36,000 Failed Investigation appeared first on Bloom HR.

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

#FairWorkFriday #SmallBusiness #NFP #EmploymentLaw #Leadership #WorkplaceCulture #BloomHR #PerformanceManagement #FairWorkCommission

The post Fair Work Friday: The 150-day absences and the warning that missed the mark appeared first on Bloom HR.

The Case: When a Valid Reason Is Not Enough

An aged care nurse practitioner had been on workers organisation for a psychological injury since 2018. By 2021, medical evidence confirmed she simply could not perform the core requirements of her role. On the surface, the organisation had a clear, legal path to end her employment based on medical incapacity.

However, Judge Catherine Symons in the Federal Circuit Court found the dismissal was unlawful. Why? Because the decision to terminate was also connected to the fact that she had made bullying complaints three years prior. Under Australian law, a dismissal is unlawful if a prohibited reason—like a past complaint—is even a tiny part of the motivation.

The Ruling: The Failed Decision-Making Process

The Court ordered the employer to pay $22,000 in compensation and an $8,000 penalty. The process that failed here wasn’t about her medical incapacity—everyone agreed she was too unwell to work. The failure was in the “how” and “why” behind the termination.

Alfred Health failed because:

• They lacked clear guidance for managers: They had no internal rules or training on how to handle employees who speak up.
• They used a biased decision-maker: The person who made the final call to terminate was the same person involved in the original bullying drama. The Court called this having skin in the game. A fair process would have used an independent person to review the file.
• They had no paper trail for the motive: Because the decision-maker didn’t give evidence in court, the employer couldn’t prove the bullying complaint wasn’t sitting in the back of their mind when they signed the termination letter.

How to do it better:

• Independent Eyes: If you are dealing with a complex termination, ensure the person making the final decision is independent. If the decision-maker has been involved in the underlying conflict, it is almost impossible to prove their motives were pure.
• Update Your Procedures: Your termination procedures must include steps to check for protected rights. This ensures you stop and ask: Is this person being dismissed partly because they spoke up?

The Bloom HR Takeaway: A Note from Nat

I must admit, even I struggled to wrap my head around this one! If she can’t work, she can’t work—right? What does it matter if she made a complaint three years ago? The doctor said she couldn’t come back, so what is a company meant to do—keep her employed forever just because she once made a complaint?

I get it now. In those three years, the organisation did nothing to improve their processes around termination, managing psychological injuries, or handling bullying complaints. They didn’t do any manager training. For a large organisation like this, Judge Symons wanted to send a clear message: You cannot ignore your systemic failures. While a small business might not face this exact level of accountability, the lesson is the same. The Court uses something called the Reverse Onus of Proof.

In most court cases, you are innocent until proven guilty. In Adverse Action claims, the law flips. If you terminate someone who has made a complaint, the law assumes you did it because they complained. It is up to you to prove that the complaint played 0% part in your decision.

If your decision-maker has a grudge or skin in the game, you will almost always lose that battle. It’s not about the result; it’s about the intent behind the decision.

Are your managers equipped to navigate complex employee issues, or are you one hidden motive away from a legal headache? At Bloom HR, our HR Advisory service specialises in manager training and support for difficult terminations, ensuring your processes remain fair and transparent.

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