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

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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.

We have a 24/7 Hotline. Call us on 0439 626 393 for a first free consultation | Schedule a time for a chat or follow us on LinkedIn for more Fair Work Friday updates.

#FairWorkFriday #SmallBusiness #NFP #EmploymentLaw #Leadership #WorkplaceCulture #BloomHR #GeneralProtections

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The Case: The Rubbish Run-In

A dance studio recently found itself at the Fair Work Commission after they summarily dismissed an instructor for serious misconduct. The issue? He refused to take out the rubbish after his shift ended.

The employer argued this was a refusal to follow a lawful and reasonable direction. However, the instructor pointed out that cleaning duties were not in his contract. More importantly, the request was made outside of his paid working hours.

The Ruling: Proportionality Matters

The FWC found the dismissal was harsh, unjust, and unreasonable. While employers certainly have the right to give directions, the summary dismissal of a professional instructor for a single instance of refusing an off-the-clock cleaning task was a massive overreaction.

The employer was ordered to pay nearly $25,000 in compensation. The Commission noted that the legal bar for serious misconduct is incredibly high. It requires deliberate behaviour that strikes at the heart of the employment contract. Taking out the bins simply doesn’t make the cut.

How to do it better:

• Understand “Reasonable”: For a direction to be reasonable, it generally needs to fall within the scope of the employee’s role and be performed during paid time. Asking a senior staff member to lead a project is reasonable; asking them to perform unrelated manual labour after hours usually isn’t.
• Seniority and Scope: As people move up in an organisation, and their salaries increase, what is reasonable changes. For leaders, expectations around managing teams, working reasonable additional hours or taking on extra tasks, can be deemed reasonable.
• Clarify the Contract: Ensure position descriptions are up to date. If an expectation is part of the core role, it should be clear. If you are asking for something outside that scope, it needs to be a conversation, not a command.

The Bloom HR Takeaway: The Small Business Myth

This case highlights a common misconception of the law that we see all the time: the idea that having fewer than 15 employees makes you immune to unfair dismissal claims.

While small organisations have a longer minimum employment period (12 months instead of 6), once that first anniversary passes, the gloves are off. If an employee has been with you for over a year, they have the full right to an unfair dismissal claim.

To be protected, you must follow the Small Business Fair Dismissal Code to the letter. This Code is your safeguard; by completing every step ie from providing valid reasons to allowing a support person, the Commission will generally find the dismissal was fair.

In this instance, the owner failed because they proceeded to summarily dismiss the employee without a valid reason under that Code. Don’t rely on the size of your organisation to protect you; rely on a fair process.

Are your position descriptions clear, or are your expectations leaving you exposed? If you are managing complex employee issues or are unsure of your rights and responsibilities, we can help.

Call us on 02 8114 4449 or email hello@bloomhr.com.au for a first free consultation

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

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The Case: The Byron Bay Cookie Crime

Recently, the Fair Work Commission (FWC) handed down a ruling against Docs John Hunter Hospital Pharmacy that cost them nearly $24,000. They had summarily dismissed a pharmacy assistant with 14 years of unblemished service for allegedly stealing confectionery items on four occasions. The employer showed her CCTV footage and handed her a termination letter the very next day. However, the employee argued that it was common practice among staff to consume snacks during a shift and pay for them later, a practice she believed was known and tolerated. In fact, for one of the items, she had actually paid for it later that same afternoon.

The ruling: Evidence over allegation

Commissioner Damian Sloan found the dismissal was harsh, unjust, and unreasonable. The key takeaway from the ruling was that “the absence of receipts or other proof of payment for the items is not sufficient to establish an intention to steal.:

Because the employer couldn’t prove she never intended to pay, and because other staff who had done the same thing only received warnings, the summary dismissal was found to be a massive overreach. The employee was awarded $23,960.86 in compensation.

How to do it better:

Establish Clear Intent: Serious misconduct requires you to prove the employee’s intent. If your staff have a habit of paying later, you can’t suddenly decide it’s theft without clear, written notice that the practice has stopped.

Consistency is Key: If you give one person a first and final for an action, you cant sack another person for the exact same thing without a very good reason.

Procedural Fairness: Rushing an employee into a meeting and not giving them a genuine chance to explain their side (or the context of the CCTV) will almost always backfire at the Commission.

The Bloom takeaway

Summary dismissal is the capital punishment of employment law.

If you’re dealing with a long-term employee, their 14 years of good service counts for a lot in the eyes of the FWC. Before you pull the trigger on a “serious misconduct” termination, you need unequivocal evidence. If you’re not 100% sure about the intent, a formal warning is often the safer,and fairer, path.

Is your workplace culture built on clear expectations, or are your unwritten rules creating a legal risk? Let’s talk about how to build policy and processes that protect everyone.

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Welcome to Fair Work Friday! I must admit I’m learning as I hope you are from these recent decisions. So let’s get into it.

This one is a good reminder for HR practitioners who have policies that actually trap you rather than assist and protect organisations and their employees.

The Case:

Recently, the Fair Work Commission (FWC) rejected a genuine redundancy defence from Triple Zero Victoria. While there was a legitimate operational reason to restructure, the FWC ruled the redundancy was not genuine because the People and Culture team failed to follow their own internal Redundancy and Redeployment (R&R) policy.

They didn’t assign a case manager, didn’t conduct a skills assessment, and failed to meet with the employee in a timely manner to discuss redeployment opportunities. Deputy President Ian Masson found that the organisation “singularly failed” the employee by not following the significant elements of the policy they had in place.

The 3 Pillars of a Genuine Redundancy

To be protected from an unfair dismissal claim, a redundancy must meet all three criteria under Section 389 of the Fair Work Act:

1. Operational Change: The employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise.
2. Consultation: The employer has complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.
3. Redeployment: It would not have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise.

The Bloom HR Takeaway – Less is More

At Bloom HR, our advice is often counter-intuitive. We recommend not having reams of policy that stranglehold you and the organisation. These policies often don’t enable you to ensure the process actually meets the needs of the business or the person affected, and if you are not following your own policy, your organisation will be affected.

A rigid policy locks you into a process where the moment you deviate, you create a legal opening. Instead, we suggest sticking to the consultation requirements outlined in the relevant Modern Award or the Fair Work Guidelines. Don’t lock yourself down to a process that might not meet individual circumstances. Managing on a case-by-case basis allows you to be flexible, fair, and work with the needs of the employee. Don’t set yourself up to fail.

Is your HR handbook full of legal traps you have set for yourself? Let’s strip back the complexity and focus on what works.

Schedule a time for a chat, call us on +61 2 8144 4449 or email us at hello@bloomhr.com.au

FairWorkFriday #HumanResources #EmploymentLaw #Redundancy #HRStrategy #WorkplaceCulture #BloomHR #NFP

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At Bloom, this case caught our attention because it highlights a common struggle for purpose-led organisations: balancing the mission with the complex legal realities of managing people.

Behind the Ruling

The employee had raised repeated concerns about workplace culture, bullying, and a lack of support. Instead of these concerns being effectively managed, the organisation initiated a misconduct investigation and dismissed her shortly after.

The Court’s View: Judge Salvatore Vasta found the investigation was not a search for the truth, but a “smokescreen” used to justify removing an employee who had become “inconvenient” for exercising her right to complain. This was ruled a breach of General Protections (Adverse Action).

The Human and Financial Impact

The $680,000 payout wasn’t just a penalty; it was largely compensation for the manager’s total loss of future earnings. The Court found that the employer’s actions—ignoring her pleas for help and then weaponising an investigation—aggravated a pre-existing psychological condition to the point where she can no longer work.

In the NFP space, we often lead with heart, but this case is a reminder that procedural fairness is a non-negotiable duty of care.

Key Lessons for NFP Leaders

• Grievances are a Request for Help: In a sector driven by support, we must apply that same care internally. Addressing cultural red flags early prevents them from becoming $680k legal liabilities.

• The Rule: Performance issues and grievances must be handled in separate “silos.” Using a disciplinary process to resolve a difficult relationship after a complaint is made is a high-risk move.
• The Reality of Reverse Onus: Under the Fair Work Act, if an employee claims they were sacked for speaking up, you must prove the complaint played 0% part in your decision. Transparency and integrity are your only real defences.

The Bloom Takeaway

At Bloom, our vision is to create workplaces where people feel valued and empowered so they can focus on their mission. This ruling shows that integrity in HR isn’t just about compliance,it’s about sustainability. When an NFP faces a massive payout, it isn’t just a budget line item; it’s funding taken away from the customers and communities you support. A fair process protects your organisation’s future, but more importantly, it protects the people who make your impact possible.

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Balancing the genuine needs of an unwell employee with the operational requirements of your organisation requires a high degree of empathy, but it also requires a firm understanding of the law.

The Case

In a recent matter before the Fair Work Commission, a WorkSafe inspector with 26 years of tenure was dismissed in July 2023. The employee had been diagnosed with Post-Traumatic Stress Disorder (PTSD), and his employer argued that he could no longer perform the “inherent requirements” of his role.

The employee challenged the dismissal, claiming it was unfair. He argued that the organisation had failed to provide the necessary early intervention or rehabilitation programs that might have facilitated a successful return to work.

The Ruling

Commissioner Emma Thornton ruled that the dismissal was not unfair. The decision rested heavily on the medical evidence provided, which was “guarded” regarding the employee’s ability to ever regain his capacity for work.

The Commission found that due to the “likely permanence” of the incapacity, the employer was not legally required to exhaust all avenues of redeployment or rehabilitation before moving to termination. Commissioner Thornton noted that an employer cannot be expected to leave a position unperformed indefinitely when there is no foreseeable return to duty.

How to do it better

While the employer’s decision was upheld in this instance, these cases are rarely simple. To manage these situations with both compassion and legal rigour, consider the following:

• Prioritise Clear Medical Evidence: Do not rely on internal assumptions. Base your decisions on contemporary, specialist medical reports that specifically address the employee’s ability to perform the inherent requirements of their role.
• Maintain Procedural Fairness: Even when a return to work seems unlikely, ensure the employee is consulted throughout the process. They should have the opportunity to respond to the medical evidence before a final decision is made.
• Document Support Efforts: While the Commission ruled that rehabilitation wasn’t mandatory here due to the permanence of the condition, documenting the support you have offered demonstrates that your organisation has acted reasonably and in good faith.

The Bloom Takeaway

This ruling serves as a vital reminder that while the Fair Work Act provides significant protections for employees, it also recognises the commercial and operational realities of running a business. When a medical condition prevents an employee from performing their core duties for the long term, and no reasonable adjustments can change that reality, an organisation has the right to protect its operational integrity. Fairness must apply to both the individual and the sustainability of the workplace.

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The case

The University of Melbourne recently dismissed Dr. Stephan Matthai, a Professor of Reservoir Engineering, for serious misconduct. In 2017, he engaged in a “highly personal and romantic” exchange with a PhD student he was supervising, including sending intimate photos. The student flagged this to HR in 2018 but, fearing the impact on her studies, didn’t want to lodge a formal complaint. Once she graduated in 2023, she finally felt safe enough to speak up. The University investigated and sacked him.

The ruling

The Fair Work Commission (FWC) ordered the University to reinstate him. Why? Because the incident happened seven years ago. The Commission labelled the dismissal “harsh,” arguing that the professor had been a “model employee” since then and that the University should have acted sooner so he could have found a new job while he was younger.

Why this matters (and why I’m appalled)

As the Founder & CEO of Bloom HR, I have to call this out: The FWC got this wrong.

To suggest that a 7-year gap erases the gravity of a power imbalance is a slap in the face to every victim of workplace harassment. In a legal proceeding, 7 years is nothing. In the world of a PhD student, those 7 years represent a period of extreme vulnerability where your entire career is held in the hands of your supervisor.

The FWC’s logic—that the Uni should have considered the professor’s “future job prospects”—prioritises the perpetrator’s career over the student’s safety. That is not justice; that is a systemic failure.

How can we do it better

This case leaves HR leaders in a tough spot. What do you do when an employee says, “I want you to know this happened, but I don’t want to make a formal complaint”?

Duty of Care vs. Confidentiality: When the allegation involves a serious power imbalance or potential “serious misconduct,” your duty of care to the entire organisation often overrides the individual’s desire for silence.

The “Informal” Trap: You cannot sit on a ticking time bomb for seven years. If the behaviour is predatory, “informal” isn’t an option. You must explain to the complainant that while you will support them, the organisation must investigate to ensure a safe environment for others.

Document & Risk Assess: If you truly cannot proceed without the victim’s participation, you must document the risk assessment. Why wasn’t a “no-contact” or “re-supervision” plan put in place immediately in 2018?

The Bloom takeaway

The Fair Work Commission needs to have a hard look at itself. We cannot claim to be “cleaning up” workplace culture while simultaneously protecting the “job prospects” of those who abuse their power.

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The case: When one phone call changes everything

An engineering trainer at the Outsource Institute of Technology was left feeling “under attack” after a single, aggressive phone call from a client. This interaction, combined with a later voicemail, triggered a significant psychological injury.

When the worker sought compensation, the regulator pushed back. Their argument? The employee was “overly sensitive” and lacked the resilience to handle a standard (if unpleasant) part of the role.

The ruling: Subjective distress matters

Commissioner Samantha Pidgeon didn’t mince words. She ruled that:

– Resilience is not a defence: Whether a worker is “resilient” or “sensitive” is irrelevant.
– Subjective impact is key: What matters is that the worker found the interaction genuinely distressing.
– Pre-existing conditions don’t disqualify: Even if a worker already has anxiety, an employer is still liable if a workplace incident significantly contributes to a new or worsened injury.

Why this matters for us

This isn’t just about one engineering trainer. It’s a warning to every leader and HR professional. We have a positive duty to provide a safe workplace and that includes protection from “abusive” from third parties like clients or customers.

How we can do better

Ditch the “Resilience” Narrative: Stop asking employees to be tougher; start asking how we can make the environment safer.

Empower “Hang Up” Rights: Do your staff know they have the explicit permission to end a call if a client becomes abusive? I would ensure they do!!

Immediate Post-Incident Support: When a “bad call” happens, don’t just say “take five.” Have a formal check-in process to document the distress immediately (or check out Bloom’s new reflective supervision solution to help manage this risk).

Invest in De-escalation Training: Equip your team with the skills to handle conflict, de escalate heightened behaviours and never expect them to endure abuse.

The bottom line

A worker’s mental health is not a “robustness” test. It’s a protected right.

Let’s lead with empathy, not excuses.

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But in values-driven organisations — not-for-profits, social enterprises, community housing, disability and health services — the contract is different. Staff choose these workplaces because the mission aligns with their identity. Their measure of success is tied to impact and meaning, not just money.

The Psychological Contract

This creates a different “psychological contract.” Staff expect leaders to:

• Honour the mission in decision-making
• Act with authenticity, fairness and transparency
• Create an environment where people feel safe to speak up

When leaders apply traditional top-down approaches — particularly in restructures, funding cuts or job redesign — they break that contract. The result? Disengagement, cynicism, turnover and burnout.

The Cost of Broken Trust

The evidence is clear:

• Deloitte: employees who find their work meaningful are 3x more engaged.
• Google’s Project Aristotle: psychological safety is the strongest predictor of high-performing teams.
• Trauma-informed research: unsafe environments trigger stress responses (fight, flight, freeze), which shut down creativity, problem-solving and collaboration.

When trust breaks, it’s not just morale at risk. It’s performance, retention and reputation.

Psychological Safety in Three Layers

To get leadership right in values-driven organisations, psychological safety must be built in layers:

1. Foundations

• Ensure staff are paid correctly and fairly
• Provide role clarity so people know expectations and boundaries
• Develop leaders who can coach and supervise, not just monitor compliance

2. Practice

• Leaders must be honest and transparent, especially during change
• Consultation must be genuine, not tokenistic — staff need to feel their voices are heard
• Communication around job design, budgets and restructures should clearly explain the “why” and “how” changes affect people

3. Systemic Reinforcement

• Policies, governance and HR processes should support safety and trust (not undermine them with inconsistency)
• Boards and executives must model the same behaviours they expect from frontline leaders
• Structures and supervision must reinforce coaching and values alignment, not just compliance

The Leadership Shift

In values-driven organisations, leadership isn’t about extracting performance. It’s about enabling people to do their best work in service of the mission. That means moving from transactional management to trust-based leadership, backed by systemic support.

The organisations that succeed will be those that build safety, trust and alignment across every level of leadership and every function. Because in this sector, leadership isn’t just a management skill, it’s a mission-critical responsibility.

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