When the termination decision was made - and who can prove it - settled this Fair Work appeal
Probation calls live or die on the paper trail. A Federal Court ruling on 15 May 2026 shows why.
Justice Halley dismissed an appeal by former Omnia Inclusive Employment Solutions area manager Ching Yee Leung, upholding a lower court finding that her dismissal during probation was lawful and the decision was made before she exercised any workplace rights.
Leung joined Omnia in May 2022 as Area Manager for North Sydney. Her three-month performance review on 16 August 2022 led to a series of meetings two days later. The last of those meetings, between Leung, her manager Kate Fraser and a subordinate, ended with Leung walking out. That afternoon, Fraser met with senior manager Anne Simic and then with chief executive Deborrah Lambourne, who decided to terminate Leung's employment.
The dismissal was not communicated straight away. Leung went on leave from 19 August and later lodged a workers' compensation claim. Lambourne held off sending the termination letter until that claim was resolved. When the claim was rejected on 17 November 2022, Omnia sent the letter on 21 November, recording a termination date of 17 November.
The primary judge found Omnia had breached section 44 of the Fair Work Act by terminating Leung without first providing a termination letter and without paying her in lieu of notice, and ordered $10,000 in compensation. But the bigger general protections claims - that the dismissal was because Leung exercised workplace rights, or because she was temporarily absent - were thrown out. The court accepted evidence from Fraser, Simic and Lambourne that the call to dismiss was made on 18 August, before Leung took leave or lodged her workers' compensation claim.
On appeal, Leung argued the primary judge denied her procedural fairness through excessive intervention, showed apprehended bias, gave her too little help as a self-represented litigant, wrongly refused her request to use an interpreter during cross-examination, and misapplied the section 361 reverse onus, which puts the burden on employers to prove a dismissal was not for a prohibited reason.
Justice Halley knocked back each ground. He acknowledged the primary judge's interventions were "frequent" and that "at times the judicial temperament was less than exemplary," but found they did not stop Leung from running her case. The primary judge had warned her at one point that "every time you give an answer that is evasive, it impacts on my assessment of your credit."
On section 361, Halley J held that Omnia discharged its onus by calling direct evidence from the three decision-makers. The primary judge accepted their account that the decision was made on 18 August because of Leung's "lack of managerial skill, inability to work co-operatively with a team... and her inability to perform the role for which she was engaged."
Leung also argued the primary judge should have looked at whether her conduct between 18 August and the November letter - sick leave, workplace complaints, the workers' compensation claim - influenced the "final implementation" of the dismissal. Halley J disagreed, finding the deferral was "for a discrete reason unconnected to the making of the termination decision."
A separate twist: Leung had filed submissions in September 2025 generated with the help of ChatGPT. Omnia sought partial costs, arguing the filing was unreasonable because cross-references to evidence and cases were wrong. Halley J declined the costs order but warned that "the inherent dangers and risks of using generative artificial intelligence should be well understood by both lawyers and litigants in person."
For HR teams, the takeaway is simple. In a general protections claim, when a termination decision was made - and what evidence backs that timing - can decide the case. Contemporaneous records, aligned witness accounts and a clear performance rationale carry the weight when an employer has to flip the reverse onus.
