Manager lost the reinstatement battle - but his boss's leave email handed him the war
An urgent reinstatement bid failed in Adelaide - but the demotion email behind it is a lesson for every HR team.
When Trung Tuan Ho returned from five weeks of annual leave in mid-March 2026, he found an email from fellow partner Adam Atwell telling him his production manager role at Adelaide Integrated Precast Pty Ltd was gone. The person who had stepped in during his absence had, the email said, "proven himself to be very efficient and diligent as Production manager." Ho's options: take a job as an onsite labourer, or stay on leave "until your employment and partnership exit are completed."
Ho, who holds 13 of the company's 52 issued shares, filed a general protections claim under the Fair Work Act 2009. He argued the demotion was adverse action - a legal term for employer conduct that injures or prejudices an employee's position - because he had exercised his right to take annual and carer's leave. He sought urgent reinstatement to the managerial role while the full case ran its course.
On May 22, 2026, Judge Brown of the Federal Circuit and Family Court dismissed the urgent application. The reasoning carries weight well beyond the result.
The email was the pivot. Alongside performance criticisms - including what it called "basic, critical errors" in performing the role - it directly cited Ho's leave record: "25 days annual leave and 5 days sick and or carers leave" from a possible 48 work days since production returned on January 5.
That reference matters under Fair Work law. Section 361 of the Act creates a reverse onus: once an employee shows they were subject to adverse action around the time they exercised a protected workplace right, the employer must affirmatively prove that the right was not a factor in the decision. The court found Ho had established a prima facie case - enough for a full hearing - on the email's plain language alone.
The case has an added layer that HR professionals in small businesses and professional services will recognise. Ho is also a partner and minority shareholder. The respondents argued the dispute was really a partnership falling-out, and the Fair Work Act had no jurisdiction.
The court did not accept that framing, at least at this stage. The partnership deed included a clause allowing working partners to be engaged on the same terms as ordinary employees - including standard leave entitlements. On that basis, the court treated Ho as an employee for the purpose of these proceedings. The two relationships, partnership and employment, were found to coexist. For any HR team where working partners also hold employment contracts, that is not a theoretical distinction: the ownership structure does not remove employment law obligations.
But finding a serious question to be tried was not enough for the emergency order. The court also had to weigh the balance of convenience - which side suffers more if the order is made or withheld.
Several factors tilted against Ho. Trust between the partners had broken down. Ho had already signalled he wanted to sell his stake in the business. Putting him back into a management team at a company with around 30 employees - where the other two partners had expressed a lack of confidence in his performance - risked real harm to the business. He was also still being paid at his estimated salary of $115,000 per year, which reduced the urgency of his situation. And one of his stated reasons for wanting reinstatement was to access the company's financial records to negotiate his own exit from the partnership - reasoning the court described as "tantamount to an acknowledgement" that his employment role was at an end.
The court concluded that if Ho ultimately establishes his workplace rights were breached, compensation and court-imposed financial penalties - available under the Act's civil remedy provisions - would be adequate redress. The emergency reinstatement was not needed.
The outcome turned on the balance-of-convenience analysis, not the merits. The general protections claim itself remains live.
The clearest takeaway for HR practitioners is this: do not mix leave references into performance or demotion communications. The email in this case cited leave-taking alongside performance concerns in the same document, and that combination alone was enough to create a prima facie adverse action case and shift the burden of proof onto the employer. Even where a genuine performance case exists, putting leave on the same page creates legal exposure that is very difficult to reverse.
Section 361's reverse onus is not a technicality. Where an employer demotes, reassigns, or disciplines an employee around the time that employee takes protected leave, the employer must show - clearly and affirmatively - that leave was not a reason for the decision. That onus sits on the business, not the worker.
The matter is listed for further directions on June 19, 2026, with the court indicating it may refer the parties to mediation. The full general protections claim has not been heard or determined.
