These situations often involve long-term illness, workplace injuries, psychological injuries or extended periods of absence. They are emotionally difficult, legally complex and rarely come with a clear answer.

Many employers assume they need a doctor to declare an employee “permanently incapacitated” before termination can be considered.

Recent Fair Work Commission decisions suggest that isn’t the real test.

The real question is whether the employee can perform the inherent requirements of the role, with reasonable adjustments, and whether there is a realistic pathway back to doing so.

Two similar cases. Two different outcomes.

The dismissal that was upheld

In Daunis v Rivercity Ferries Pty Ltd, the employee could not safely perform the physical requirements of her role and any return depended on future surgery with no reliable timeframe or evidence that it would restore full capacity. The employer considered adjustments but demonstrated they would not overcome the essential requirements of the job. The Commission upheld the dismissal.

The dismissal that wasn’t

In Grujicic v Lineage Aust Trs Pty Ltd, the employee’s specialist said he was fit for full-time work and recommended a trial to determine his actual capacity. The employer dismissed him before that trial occurred. The Commission found the employer had reached a conclusion that the medical evidence did not support.

So what does Fair Work actually look at?

The lesson from these cases is not that employers must wait forever.

It’s also not that an IME automatically creates a pathway to termination.

What Fair Work appears to be looking for is whether the employer has enough evidence to make a reasonable decision.

Before terminating, employers should be able to answer:

• What can the employee do today?
• What can’t they do?
• What do the medical specialists actually say?
• What reasonable adjustments have been considered or trialled?
• Is there a realistic pathway back to performing the role?
• If there is, what is the timeframe?
• If there isn’t, what evidence supports that conclusion?

The more clearly an employer can answer those questions, the stronger the decision is likely to be.

How far do reasonable adjustments go?

Employers must genuinely consider reasonable adjustments.

That might include modified duties, altered hours, workplace modifications, graduated return-to-work arrangements or assistive equipment.

However, employers are generally not required to:

• remove the core duties of the role permanently;
• create a new position that does not exist;
• indefinitely transfer essential duties to other employees; or
• continue arrangements that are no longer workable.

Importantly, what is reasonable may look very different between organisations.

A large employer with significant resources, redeployment opportunities and multiple teams may be expected to accommodate restrictions for longer than a small organisation with limited staffing, limited budgets and no alternative positions available.

That does not mean larger employers must accommodate indefinitely, nor does it mean smaller employers can terminate simply because arrangements are inconvenient.

It does mean Fair Work will often assess reasonableness in the context of the employer’s size, resources, operational realities and ability to sustain the arrangement.

Is it different when it’s a workplace injury?

Often, yes.

A non-work-related medical condition is usually a capacity issue.

A workplace injury can be a capacity issue, a workers compensation issue, a return-to-work issue and sometimes a workplace rights issue all at the same time.

That is why workplace injury cases tend to carry higher risk and require much greater care before termination is considered.

The Bloom HR takeaway

If you’re looking for a simple answer to:

“When can I terminate?”

Unfortunately, there isn’t one.

There is no point where an employer can simply decide they have waited long enough.

Every case turns on its own facts, its own medical evidence, the role involved, the availability of reasonable adjustments and the resources of the employer.

The safest approach is not to ask:

“Can we terminate?”

The better question is:

“Do we have enough evidence to reasonably conclude there is no realistic way for this employee to perform the role?”

If you’re not sure of the answer, you’re probably not ready to make the decision.

That’s why capacity-based dismissals are one of the few areas of employment law where getting advice before acting is almost always more effective than defending the claim afterwards.

Here to help

Managing a long-term illness, psychological injury or workplace injury matter?

Before moving towards termination, make sure your medical evidence, assessment of reasonable adjustments and consultation process are as strong as your intentions.

Bloom HR supports employers across Australia to navigate complex capacity, fitness-for-work and return-to-work matters with confidence, compliance and compassion.

We offer a complimentary 30-minute consultation with our Founder and CEO, Natalie Carrington.

Schedule a consultation

The post When is it fair to terminate an employee who can no longer do the job? appeared first on Bloom HR.

A recent Fair Work Commission decision involving Uber has raised a serious question about how Australia’s new gig worker laws are operating in practice.

Procedural fairness matters. Nobody should lose their livelihood because of an arbitrary decision. But when a business receives repeated safety complaints, investigates them and has supporting data, should its decision be overturned because the customers who made the complaints did not personally attend a hearing to give evidence?

In my view, that sets the bar in the wrong place.

The Case

The Fair Work Commission recently ordered Uber to reinstate a driver who had been deactivated following multiple passenger complaints alleging dangerous driving, excessive speeding and mobile phone use while behind the wheel. According to reports, Uber argued that the complaints, together with speed data, justified removing the driver from the platform. The Commission disagreed and found the deactivation was unfair. Uber is now appealing the decision and has publicly raised concerns about the implications for passenger safety and the operation of Australia’s new gig economy laws.

According to the reported facts, Uber received multiple complaints about the driver’s conduct over several months. The allegations included excessive speeding, dangerous driving and mobile phone use while driving. Uber also says it had speed data that supported its concerns. This was not a case where a driver was removed because of a single complaint or an arbitrary decision. Complaints were received, an investigation was undertaken, information was reviewed and a decision was made.

While the case itself is significant, it raises a much bigger question for employers and business owners.

Should the Fair Work Commission be second-guessing safety decisions made by businesses after they have investigated complaints and assessed the available evidence?

The Background

Australian workplace laws have historically maintained a clear distinction between employees and contractors. Employees could challenge disciplinary action and termination through workplace tribunals. Contractors generally could not. They operated under commercial arrangements and disputes were typically dealt with through contractual and commercial processes.

That changed with the Federal Government’s Closing Loopholes reforms. The legislation introduced a new category of regulated workers, including certain “employee-like” gig economy workers, and gave the Fair Work Commission new powers to deal with unfair deactivation claims. From 26 February 2025, eligible gig workers gained the ability to challenge a deactivation through the Fair Work Commission, even though they remain contractors rather than employees.

Supporters argue these protections are necessary because digital platforms can effectively remove a person’s source of income with the click of a button. That’s a fair argument.

The issue raised by this case, however, is not whether gig workers deserve protections. The issue is how those protections operate when they collide with legitimate public safety concerns.

The Real Issue

The real issue isn’t whether Uber’s investigation was perfect.

The real issue is whether the Fair Work Commission should be substituting its judgement for the judgement of an organisation that received complaints, conducted an investigation, reviewed supporting information and made a risk-based decision.

Businesses are expected to act when credible safety concerns are raised. In fact, they are regularly criticised when they fail to do so. Whether it’s a transport operator, a disability provider, an aged care service, a childcare centre or a community organisation, leaders are expected to identify risks, investigate complaints and make decisions that protect the people using their services.

What concerns me about this decision is the apparent weight given to the fact that the passengers who made the complaints did not personally attend to give evidence.

Most customers who lodge a complaint expect the business to investigate it. They do not expect to become participants in legal proceedings. They do not expect to be cross-examined. They do not expect their safety complaint to become a tribunal matter. I believe Fair Work got it wrong and I look forward to seeing the outcome of the appeal.

If businesses are effectively required to produce complainants as witnesses before they can rely on customer complaints, we risk creating a system where organisations become reluctant to act until they have gathered enough evidence to defend themselves in litigation rather than enough evidence to manage an identified safety risk.

That is a dangerous shift in thinking.

Written complaints are evidence. Multiple complaints describing similar behaviour are evidence. GPS data, speed records and platform information are evidence. A business should be able to investigate that information, assess the risk and make a reasonable decision without having to convince every complainant to enter a witness box.

A Fair Work System That Keeps Expanding

This case also highlights how quickly the Fair Work Commission’s jurisdiction has expanded.

The unfair deactivation regime only commenced in February 2025, yet reports suggest around 500 gig economy unfair deactivation and related applications have already been lodged. Many involve disputes about platform access, algorithmic decision-making and contractor relationships that would never previously have been considered workplace relations matters.

That matters because every new jurisdiction creates more hearings, more appeals, more complexity and more pressure on a system that is already managing a significant volume of workplace disputes.

The issue is not whether gig workers deserve protection.

The issue is whether the Fair Work Commission is becoming the default destination for every dispute connected to work, regardless of whether it involves an employee, a contractor, an app or a commercial platform.

At some point, policymakers need to ask whether this expansion is actually improving outcomes or simply creating a larger, more complex and increasingly legalistic system.

The Bloom HR Takeaway

Businesses should investigate complaints, provide procedural fairness and make decisions based on evidence. Uber appears to have done exactly that.

The Fair Work Commission is entitled to ensure the process was fair. However, when a decision involving public safety is overturned because of procedural fairness concerns, then its gone too far. The unfair deactivation regime was introduced to prevent arbitrary decisions. It was never intended to make businesses hesitant to act on credible safety concerns.

If multiple complaints, an investigation and supporting data are not enough, what exactly is enough?

The post When procedural fairness overrides public safety appeared first on Bloom HR.

Procedural fairness is one of the first things employers learn about managing misconduct and performance issues. Employees should understand the concerns being raised, be given an opportunity to respond and have that response genuinely considered before a decision is made.

That remains best practice and, in most cases, the safest approach. However, procedural fairness is not a standalone test that automatically determines whether an employer wins or loses an unfair dismissal claim. It is one of several factors the Fair Work Commission must consider when deciding whether a dismissal was harsh, unjust or unreasonable.

Those factors include:

• whether there was a valid reason for dismissal relating to the employee’s capacity or conduct;
• whether the employee was notified of that reason;
• whether the employee was given an opportunity to respond;
• whether the employer unreasonably refused a support person;
• whether the employee had been warned about unsatisfactory performance, where relevant;
• the size of the employer’s business;
• whether the employer had dedicated human resources expertise; and
• any other circumstances the Commission considers relevant.

The safest course is to address all of these factors. However, the Commission does not simply work through the list like a checklist to determine that all elements have been ticked. It considers and balances all the circumstances before forming an overall view about whether the dismissal was fair.

There are principles, but very few absolutes in employment law. Reasonable people can read the same legislation and the same set of facts and reach different conclusions about whether a dismissal was harsh, unjust or unreasonable. The challenge is not just knowing the law, but understanding how it may be applied when a Commissioner weighs all the circumstances in each case.

The Case

In Raghib v Stantec Australia Pty Ltd, a Senior HR Business Partner found himself on the other side of a workplace investigation after complaints were made about his conduct, including allegations of sexual harassment. The employee denied the sexual harassment allegations, and the Commission was ultimately not satisfied that the alleged sexual harassment itself had occurred. However, what the employee did after learning about the complaints became central to the case.

After becoming aware that a female colleague had made a sexual harassment complaint against him, the HR Business Partner contacted her directly. He later relied on what he claimed was a text message from another complainant, in which she appeared to admit that she had been persuaded to make allegations against him in return for having her employment confirmed. If genuine, that message could have seriously undermined both the complainant’s credibility and the integrity of the disciplinary process.

The complainant denied sending the message and produced telephone records showing that no message had been sent from her phone to the employee’s personal or work phones. The Commission ultimately concluded that the message was fabricated and intended to discredit the complainant and undermine the disciplinary process. It also found that the employee’s direct contact with the woman who had made the sexual harassment complaint was inappropriate.

These were not findings of a minor lapse in judgement. For any employee, fabricating evidence during a workplace process would represent a serious breach of trust. For a senior HR professional who understood investigations, confidentiality and the importance of protecting complainants, the conduct went directly to the integrity required of the role.

Stantec dismissed the employee, who then lodged an unfair dismissal application. Deputy President Ian Masson found that Stantec had valid reasons for dismissal based on the employee’s contact with the sexual harassment complainant and the fabricated text message. However, the Deputy President also identified a significant problem with Stantec’s process: the employee had not been notified of all the reasons ultimately relied upon and had not been given an opportunity to respond to them before the dismissal ie procedural fairness.

Despite those procedural fairness failures, the dismissal was upheld. The Deputy President found that the seriousness of the misconduct outweighed the deficiencies in the dismissal process and rejected the unfair dismissal claim. The employee appealed, but the Full Bench refused permission to appeal, leaving the original decision in place.

The Background

What makes the Stantec decision so useful is that employers do not always receive the same outcome when procedural fairness has not been followed. In other cases, employers have lost an unfair dismissal case because there was lack of procedural fairness.

In Bostock v Austmont Pty Ltd, the employer dismissed a factory foreman who had been absent from work because of a persistent medical condition. The Commission accepted that the employee’s incapacity provided a valid reason for dismissal. However, the employer had not notified him of the proposed reason before dismissing him and had not given him an opportunity to respond. Even though his response may not have changed the employer’s ultimate decision, the absence of procedural fairness contributed to the dismissal being found unfair.

The conduct, context and balance were very different from Stantec. Bostock was not a case involving dishonest evidence or an attempt to undermine a sexual harassment investigation. It concerned an employee’s capacity to perform his role, and the employer made its decision without first involving him in a fair process. In those circumstances, procedural fairness carried considerable weight.

In Stephen Burley v Cleanaway Operations Pty Ltd, a waste collection driver used a mobile phone while operating a heavy vehicle. He admitted the conduct, which was captured on CCTV, and the Commission accepted that Cleanaway had a valid reason for dismissal. However, the dismissal process contained significant procedural deficiencies. The decision records that the employee was reinstated, without an order restoring his lost pay, after the dismissal was found harsh, unjust and unreasonable.

Again, the balance was different. Burley had a long service history, expressed remorse and explained the personal circumstances surrounding the calls, which related to his elderly mother’s health. Material about the proposed dismissal had progressed through senior management before Burley had the opportunity to respond that provided evidence that a decision was made by the company to dismiss before giving the employee the opportunity to respond and to consider his response. In this case the dismissal was deemed harsh and unfair.

These decisions were all made under the same legislative framework, and each employer had a valid reason for dismissal. Yet the outcomes were different because the Commission was required to consider the whole picture. In Stantec, deliberate dishonesty and conduct undermining a sexual harassment process outweighed the procedural deficiencies. In Bostock and Burley, the process failures carried substantially more weight when considered alongside the nature of the reason, the employee’s circumstances and the employer’s decision-making.

How to Do It Better

A dismissal should never be approached on the assumption that procedural fairness can be skipped because the conduct appears serious. That would take the Stantec decision well beyond what it establishes and expose an employer to unnecessary risk.

The safer and more defensible approach is to:

• investigate the concerns properly;
• distinguish allegations from established facts;
• clearly explain the concerns and the possible consequences to the employee;
• provide a genuine opportunity to respond;
• remain open to the possibility that the response may affect the outcome;
• consider relevant personal circumstances, service history and comparable cases;
• involve an appropriate support person if requested; and
• document both the evidence and the reasoning behind the decision.

Employers should also remember that organisational context matters. The Commission is required to consider the size of the business and the presence or absence of dedicated HR expertise because these factors may affect the procedures followed. A small community organisation without internal HR capability may not run a process with the same sophistication as a large employer with an experienced HR team. That does not remove the obligation to act fairly, but it can form part of the Commission’s broader assessment.

The lesson to take away is not that procedural fairness is optional. It is that procedural fairness is part of a balancing exercise. Sometimes a deficient process will be decisive. In more exceptional circumstances, as Stantec demonstrates, misconduct may be so serious that it outweighs the employer’s procedural failures.

The Bloom HR Takeaway

At Bloom HR, we are constantly scanning Fair Work Commission decisions to understand how employment law is being interpreted and applied. The legislation provides the framework, but decisions such as Stantec, Bostock and Burley show how much can depend on the facts, the process followed and the weight a Commissioner gives to each consideration.

Keeping across these decisions helps us give clients practical advice based on how the law is operating today. It allows us to better assess where the boundaries of “harsh”, “unjust” and “unreasonable” are being drawn and to help employers make decisions that are legally sound, fair, reasonable and defensible if later challenged.

No Bloom HR client has ever paid compensation in an unfair dismissal matter. We believe that record reflects the care we take in understanding both the law and how it is being applied, then helping our clients manage the facts and process before a decision is made.

Employers should feel confident managing genuine misconduct, incapacity and performance concerns when there is a sound reason and a fair process. When the circumstances are complex or the right course is unclear, Bloom HR is here to help you weigh the risks, apply good judgement and reach a decision you can stand behind.

You can schedule a free 30 minute consultation and we can help you navigate your complex HR issues.

The post Fair Work Friday: When serious misconduct outweighs procedural fairness appeared first on Bloom HR.

The real question is: Is all of this activity creating value and delivering on your purpose, or is it just noise?

Sometimes, what looks like hard work is actually organisational friction. When an organisation has an important societal role, this friction does not just stall projects, it actively hinders the delivery of critical outcomes.

The Hidden Cost of Organisational Friction

Most organisations are full of capable, committed people who genuinely care about the work they do. Yet despite the best intentions, projects stall, decisions take longer than they should, emails go unanswered, decisions sit unresolved and simple issues become unnecessarily complicated.

Rarely is this because people are not working hard enough. More often, it is because complexity disguises itself as good governance, creating a culture of fear in which no one wants to make a mistake and, therefore, no one makes a decision.

1. The Dilution of Accountability

One of the clearest signs of organisational friction is the email chain that includes everyone. A straightforward question is sent to ten people. Everyone has visibility. Everyone has input. Everyone is waiting for someone else to decide.

While the intention is often to avoid operating in isolation, involving more people does not automatically improve outcomes. Beyond a certain point, additional stakeholders dilute accountability. When everyone is involved in the decision-making process, nobody feels genuine ownership of the outcome.

The result is predictable. More people are copied into the conversation, more opinions are gathered and more meetings are scheduled, yet the decision itself remains unresolved.

2. The Expert Trap

As organisations grow or face immense pressure, the default response is often to build committees, add layers of oversight or engage waves of external experts and consultants to solve the same problem.

When tasks that should be owned by one clearly accountable role become shared across multiple parties, effort is duplicated. Teams spend more time coordinating work than actually completing it. Money is wasted, additional senior salaries are absorbed and outcomes do not improve.

This is particularly significant in the not-for-profit, charity and government-funded sectors, where every dollar matters. Funding is finite. Every dollar spent on unnecessary duplication, poorly designed structures or overlapping responsibilities is a dollar that cannot be directed towards services, programs and community outcomes.

3. The Broken Recruitment Cycle

The employee experience does not begin on the first day of employment. It begins with the first interaction someone has with your organisation.

When organisations are paralysed by a fear of making the wrong choice, recruitment processes can drag on for months. Strong candidates disengage, vacancies remain open and hiring decisions remain unresolved.

While a position sits vacant, the existing team is forced to pick up the additional work. Pressure increases, burnout risks rise and already stretched employees carry the burden of prolonged vacancies.

While recruitment decisions carry risk, they are not unique challenges. Organisations recruit successfully every day. Lengthy approval pathways rarely improve outcomes and often create unnecessary delays that undermine both the candidate and employee experience.

Governance vs Bureaucracy

Good governance, strong controls and accountability matter. However, there is a significant difference between governance and bureaucracy.

The strongest organisations are not those with the most approvals, the most committees or the most senior people involved in every decision. They are the organisations where people understand their responsibilities, know the boundaries of their authority and have the confidence to act within them.

Shifting the Leadership Mindset

For many leaders, moving away from organisational friction requires a shift in mindset. One of the less comfortable realities of leadership is that the skills required to build an organisation are not always the same skills required to scale one.

Many founders and CEOs build successful organisations by being deeply involved in every decision. They know the details, understand the risks, maintain key relationships and make decisions quickly. In the early stages of an organisation, that level of involvement is often critical to success.

As an organisation grows, however, leadership success becomes less about personally making decisions and more about creating the systems, controls, capability and confidence that allow others to make them.

The leaders who scale successfully are those who learn to replace personal oversight with organisational capability.

That means establishing clear delegations, creating effective internal controls, investing in leadership capability, designing roles with genuine accountability and trusting capable people to make decisions within clearly defined parameters.

As organisations grow, leaders must grow with them.

When these foundations are not in place, organisations become overly reliant on a small number of people, usually the CEO or executive team. Decisions are escalated unnecessarily, authority remains concentrated at the top and capable employees hesitate to act because they are unsure where responsibility sits.

The result is an organisation full of talented people waiting for permission.

If every decision eventually finds its way back to the same executive desk, the organisation can only move as quickly as that individual can respond.

That isn’t leadership. It’s a bottleneck.

True leadership means moving away from a bottleneck model and focusing on the foundations of organisational health:

• Fostering autonomy: Trusting your people and empowering them to act, allowing creativity, initiative and passion to flourish rather than stifling them under unnecessary layers of caution.
• Designing clear roles: Defining responsibilities, accountability and authority levels so capable employees do not hesitate to act.
• Creating effective controls: Establishing systems that support confident decision-making rather than creating unnecessary dependency on senior approval.
• Building leadership capability: Ensuring decision-making capability and accountability exist throughout the organisation, not only at the top.
• Improving workplace wellbeing: Providing genuine role clarity, effective delegation and meaningful autonomy.

When people understand their responsibilities and are trusted to exercise appropriate authority, psychological safety improves. Employees feel more confident taking ownership, making decisions and contributing ideas.

Clear role design, effective delegation and meaningful autonomy are not simply organisational tools. They are important contributors to engagement, accountability, psychological safety and workplace wellbeing.

The Bloom HR Takeaway

If your organisation constantly feels busy but milestones are not being achieved, it is time to ask a difficult question:

Are we creating outcomes, or have we unintentionally created complexity?

The answer is not necessarily fewer people or throwing out compliance. The answer is ensuring that every role, approval pathway, reporting relationship and decision-making framework exists for a clear purpose and genuinely adds value.

The goal of leadership is not to remain indispensable. It is to build an organisation that can make excellent decisions without you.

Busy isn’t a strategy. Clarity is.

If you are considering a restructure, reviewing role design, clarifying decision-making authority, strengthening delegation frameworks or ensuring your organisational structure is fit for growth, Bloom HR can help.

We work with organisations to create practical, compliant and sustainable structures that improve accountability, support psychological safety, strengthen governance and ensure precious funding is directed where it delivers the greatest impact.

Call us on +61 2 8114 4449 or book your free 30 minute consultation here.

The post Busy Isn’t a Strategy: Why complexity is paralysing your organisation appeared first on Bloom HR.

The employee was the Chief Executive Officer of a not-for-profit organisation. Following the termination of employment, the CEO lodged an unfair dismissal application. The organisation argued that because the CEO earned well above the High Income Threshold, the employee was not protected from unfair dismissal.

The Fair Work Commission approached the matter differently.

Rather than focusing on the employee’s earnings, it considered whether the CEO’s role was covered by the SCHADS Award. The Commission found that the role fell within the Award’s classification structure and that award coverage remained relevant despite the CEO earning above the High Income Threshold. [fwc.gov.au]

For many employers, that finding may come as a surprise.

The High Income Threshold (currently $190,100) does not automatically remove award coverage. An employee can earn well above the threshold and still be covered by a modern award.

The Fair Work Act contains specific provisions dealing with a Guarantee of Annual Earnings (GAE). A GAE is designed to remove award coverage for an employee who would otherwise be covered by a modern award. To be effective, it must meet the requirements set out in the legislation, including being in writing, specifying the guaranteed earnings, containing a guarantee period and being accepted by the employee.

This is particularly relevant for not-for-profit organisations operating under SCHADS.

Many readers will be familiar with SCHADS Level 8. When you read the classification descriptors, they align closely with the responsibilities often performed by CEOs, Executive Managers and General Managers within community organisations. As a result, it is entirely possible for a senior executive earning above the High Income Threshold to still be covered by the Award if a compliant Guarantee of Annual Earnings is not in place.

A standard offset clause or all-inclusive salary clause is not the same thing as a Guarantee of Annual Earnings. The fact that an employee earns above the threshold does not, by itself, switch off award coverage.

The Bloom HR Takeaway

For not-for-profit organisations, the SCHADS Award reaches further into management and executive roles than many people realise.

If you have CEOs, Executive Managers or other senior employees earning above the High Income Threshold, it may be worth reviewing whether the role is covered by an award and, if so, whether there is a compliant Guarantee of Annual Earnings in place.

This case is a useful reminder that award coverage and earnings are two separate questions. Before making decisions about contracts, performance management, termination of employment or industrial obligations, it is worth confirming exactly where your senior employees sit under the Award and whether the documentation supports the intended arrangement.

Unsure whether your CEO, Executive Manager or senior employee is still covered by an Award? Bloom HR can review your contracts, classifications and remuneration arrangements to ensure they align with your organisation’s obligations.

Supporting those who support the community.

#FairWorkFriday #SCHADS #NotForProfit #CEO #EmploymentLaw #HumanResources #AwardCoverage #WorkplaceRelations #BloomHR

The post Fair Work Friday: Your CEO earns above the High Income Threshold. So why does the SCHADS Award still apply? appeared first on Bloom HR.

A recent Fair Work Commission decision involving GPC Asia Pty Ltd demonstrates what happens when an employer approaches performance management properly and genuinely invests in helping an employee succeed.

The result – The employer successfully defended an unfair dismissal claim, with the Commission describing the performance management process as effectively a textbook example of how it should be done.

The Case

The employee worked as a Supply Chain Planner and was responsible for maintaining and managing key supplier data.

Over time, concerns emerged about the quality and accuracy of his work. The employer identified ongoing performance issues and implemented a structured Performance Improvement Plan.

Like many employees facing performance concerns, the employee argued that the issues weren’t really his fault.

He claimed system problems, operational challenges and broader team backlogs contributed to the shortcomings identified by the employer. The Commission, however, wasn’t persuaded.

What stood out was not simply that performance concerns existed. It was the way the employer responded to them.

Why the Employer Won

The employer didn’t rush to termination. It didn’t ambush the employee. It didn’t create a PIP simply to build a paper trail. Instead, managers spent considerable time clearly identifying the performance gaps, setting expectations, providing support and conducting regular documented reviews.

The evidence showed consistent weekly meetings throughout the process, progress was monitored, feedback was provided and expectations were clearly communicated.

The employee was given genuine opportunities to improve.

Importantly, the Commission found the manager’s objective throughout the process was not to terminate the employee, but to help him succeed. That distinction mattered.

The Deputy President specifically noted that the manager worked hard and consistently throughout the PIP to identify what needed to be done to close the performance gap.

When performance ultimately failed to improve to the required standard, the employer was able to demonstrate that it had acted fairly, reasonably and with genuine intent.

What Employers Should Take Away

The strongest PIPs have several things in common:

• Specific examples of the performance concerns
• Clear and measurable expectations
• Regular review meetings
• Genuine coaching and support
• Accurate documentation
• A realistic opportunity to improve

What they don’t contain is a predetermined outcome. If you’ve already decided the employee is leaving, you’ve missed the point of performance management. The purpose of a PIP should be improvement.

Termination should only be the outcome if improvement does not occur despite reasonable support and opportunity.

The Bloom HR Take

I’ll be honest, some managers avoid performance conversations for years because they’re worried about hurting feelings, others go to the opposite extreme and suddenly produce a PIP once they’ve already decided they’ve had enough.

A PIP is a management tool. The reality is that many employees genuinely don’t know they’re underperforming until somebody sits down and clearly explains the gap between what’s expected and what’s actually being delivered.

I’ve seen employees completely turn their performance around when they’ve been given clear feedback, practical support and realistic expectations. Employees need to be open to the feedback, and that requires trust. Leaders must build trust to be able to constructively give feedback that is received with good intentions.

I’ve also seen organisations drag out PIPs. This is also not fair. Being on a PIP is stressful and time consuming for both the employee and employer.

I’ve also seen employers not address things quickly enough. This is also not fair. The employee doesn’t know where they stand and in the meantime, other employees are picking up the slack.

When performance improvement plans are undertaken with the intention of getting that employee to improve, its an act of genuine leadership, not a a punitive process.

Good leaders don’t avoid difficult conversations. They have them early, clearly and respectfully and sometimes, despite everyone’s best efforts, improvement doesn’t occur.

When that happens, a fair and properly documented process protects both the employee and the employer. That’s exactly what happened here. The employer was able to demonstrate a fair, clear and reasonable process that was well documented and genuinely wanted the employee to success, and that is precisely what the Fair Work Commission expects.

Need assistance with a difficult conversation or tricky performance issues? Bloom’s array of talented consultants are here to help. Set up your free 30 minute consultation here.

#FairWorkFriday #PerformanceManagement #PIP #HumanResources #Leadership #EmploymentLaw #FairWorkCommission #HR #WorkplaceRelations #BloomHR

The post Fair Work Friday: The PIP That Actually Worked appeared first on Bloom HR.

One of the biggest workplace debates of the past few years has been the rise of work from home requests based on caring responsibilities. 

Many employers assume that if an employee has a genuine caring responsibility, then a request to work from home must be approved. 

A recent Fair Work Commission decision involving the Australian Financial Complaints Authority (AFCA) is a timely reminder that this simply isn’t the case. The Commission upheld AFCA’s decision to refuse an employee’s request to work from home full-time, despite the employee having significant caring responsibilities for an immunocompromised spouse and a child experiencing ongoing health issues. 

The Facts

The employee requested to work from home on a permanent full-time basis due to his caring responsibilities. 

Importantly, AFCA had already implemented a hybrid working guideline that allowed employees to work from home for up to three days per week, with attendance in the office required for the remaining two days. 

The employee argued that AFCA had failed to properly consider the impact its refusal would have on him and his family and that the employer did not have reasonable business grounds to reject the request. 

The Fair Work Commission disagreed. 

Deputy President Bell described AFCA’s hybrid working arrangement as “on one view generous” and found there was no “capriciousness or arbitrariness” in the policy. The Commission accepted that the employer had reasonable business grounds to refuse the request for full-time remote work. 

Why Did AFCA Win?

The key point is that AFCA was not refusing flexibility altogether. 

The employee was already permitted to work from home for the majority of the week. The dispute was about whether the employer had to remove all office attendance requirements. 

The Commission accepted that it did not. 

This distinction is important because the Fair Work Act gives eligible employees the right to request flexible working arrangements. It does not give employees an automatic right to their preferred arrangement. Employers can refuse a request if they have reasonable business grounds and comply with the legal process. 

In this case, the Commission accepted that AFCA’s hybrid model was a legitimate workplace policy and that requiring attendance in the office for two days a week was a reasonable position for the employer to maintain. 

Why Do Some Work From Home Cases Succeed?

This decision shouldn’t be interpreted as a green light for employers to reject flexible work requests. 

Recent Fair Work Commission decisions have shown that employers who rely on vague statements about culture, collaboration or management preference can find themselves in trouble if they can’t demonstrate genuine business reasons for refusing a request. 

What we continue to see is that employers are more likely to succeed when they can demonstrate: 

✅ A clear and consistently applied policy 

✅ Genuine operational reasons 

✅ A thorough assessment of the employee’s circumstances 

✅ Evidence that alternative options have been considered 

✅ A well-documented decision-making process 

The cases are highly fact-specific, but one principle remains consistent: employers must do more than simply say “because that’s our policy”. 

The Bloom HR Take

This case got me thinking about a question that many employers quietly ask but rarely say out loud. 

When did “caring responsibilities” become synonymous with “working from home”? 

The Fair Work Act provides eligible employees with the right to request flexible work arrangements because of caring responsibilities. However, flexibility comes in many forms. 

Sometimes flexibility might mean: 

• Adjusted start and finish times

• Reduced hours

• Part-time work

• Job sharing

• Compressed work weeks

• Different rostering arrangements

• Temporary changes during periods of increased caring needs

• Accessing paid personal/carer’s leave when a dependant is unwell

• Occasional or partial work from home arrangements

Work from home is just one option. 

What concerns me is that, in many workplaces, we’ve almost reached the point where caring responsibilities automatically become a work from home discussion. 

I don’t think that is what the legislation intended, and I don’t think it’s always the most appropriate solution. 

Let’s be honest. 

If an employee genuinely needs to provide ongoing care and supervision throughout normal business hours, employers are entitled to ask a practical question: 

How will the employee continue to perform the inherent requirements of a full-time role? 

That isn’t a criticism of carers. 

It’s a legitimate operational question. 

If a spouse, child or family member genuinely requires significant care during the day, there may be other options available. Depending on the circumstances, this could include formal support services, family support arrangements, adjusted work schedules, reduced hours, or utilising available leave entitlements when active care is required. 

I appreciate this is an uncomfortable conversation, but I think it is one employers need to be willing to have. 

A full-time employee should be available to perform their role during work hours. If caring responsibilities are so extensive that somebody cannot attend the workplace at all, employers shouldn’t be afraid to explore whether there are alternative flexible work arrangements that better balance both needs. 

The lesson from this case isn’t that caring responsibilities aren’t real. 

The lesson is that caring responsibilities do not automatically equal work from home. 

Nor do they automatically override an employer’s legitimate operational requirements. 

As HR professionals and business owners, our role isn’t to judge whether an employee’s circumstances are genuine. Our role is to determine whether there is a practical and sustainable arrangement that enables the employee to balance their responsibilities while still performing the role they are employed to do. 

This decision reminds us that flexibility is a broad concept. 

And sometimes the most appropriate solution may not be working from home at all. 

The post Fair Work Friday: Caring Responsibilities Don’t Automatically Mean Working From Home appeared first on Bloom HR.

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.

The post Fair Work Friday: Senior executive wins adverse action claim – contractor v employee test applied! appeared first on Bloom HR.

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.