Federal Court ruling shows how thin probation protection really is for employers
Terminating a probationary employee for "personality fit" without documentation is not consequence-free, a February 20, 2026 Federal Court ruling confirms.
On November 11, 2024, Supianto Wijaya was called into a meeting without notice at Matthews Brothers Engineering. No warning. No performance review. He was told his employment was terminated, and when he asked why, the answer was that his personality was "not a good fit for the job."
Wijaya took his case to the Federal Court of Australia, claiming his employer had taken adverse action and discriminated against him under the Fair Work Act 2009. In Wijaya v Matthews Brothers Engineering Pty Ltd [2026] FCA 138, Justice McElwaine dismissed the application.
The employer won. But the reasoning behind that outcome matters.
The case had already been through one round before it reached Justice McElwaine. Following Wijaya's amended statement of claim, the employer applied to have the proceeding summarily dismissed. National Judicial Registrar Edwards granted that application and ordered the proceeding dismissed on 11 August 2025, finding it failed to disclose a reasonable cause of action. Wijaya then filed a de novo review application of that decision, which is what came before Justice McElwaine on 20 February 2026. McElwaine J dismissed the review application, confirming the summary dismissal.
The court found Wijaya's claim failed not because the employer's conduct was above reproach, but because Wijaya, who appeared without legal representation, could not identify what specific workplace right had been infringed. Under the Fair Work Act, an employee alleging adverse action must first identify a concrete workplace right, then show a direct link between that right and the termination decision. Wijaya argued that the employer's failure to conduct a performance review breached some duty of due diligence. The court found that argument did not establish how he actually held the corresponding workplace right. When the judge asked him directly, he said his workplace right came from holding a contract of employment as a permanent employee. The court found that fell well short of what the law requires.
His discrimination claim fared no better. He argued that being terminated because of his personality was discriminatory. The Fair Work Act protects employees from dismissal on the basis of specific attributes, including race, sex, age and disability. Personality is not among them.
Justice McElwaine affirmed Registrar Edwards' finding that "the applicant's pleading rises no higher than a complaint about the manner of his dismissal which he considers having been unfair."
The case was dismissed. But what led to it is worth examining.
The employer's stated reason, that Wijaya's personality did not suit the role, is a rationale people managers often reach for when a new hire is not working out. It did not produce liability here. The complete absence of any performance review, written warning or documented rationale, however, is precisely the kind of gap that, in a better-prepared claim, could produce a very different outcome.
Probationary periods are not a legal shield. When a termination decision is made, the reasoning needs to be specific, documented and defensible. For those overseeing people strategy, vague references to personality or culture fit, without supporting evidence or a structured review process, leave organisations exposed, even when the legal challenge ultimately fails.
The Fair Work Act's general protections framework is broad, and employees are increasingly aware of it. Getting the process right from day one remains the most reliable protection an organisation has.
