The misconduct was barely in dispute. One witness the agency never called changed everything
An employer can have a genuine reason to dismiss and still breach the law - if it cannot prove that reason stood alone.
That was the lesson from a general-protections decision handed down by the Federal Circuit and Family Court on June 22, 2026. Services Australia had a serious misconduct case on its hands. The court still found it breached the Fair Work Act.
The worker, a First Nations man, joined the agency as a service officer at a Victorian Smart Centre in November 2023. In his first three weeks, he lodged several complaints alleging racist and offensive treatment by colleagues. A preliminary fact-find could not find evidence that the conduct had occurred.
On December 5, 2023, during a training session, he punched a trainer in the head. A colleague pulled him away, and he was escorted out. He did not deny much of the incident, arguing only that he was not solely to blame.
The agency moved quickly. It suspended him on December 11 and dismissed him on December 15, each time through a formal delegate. Its case was clean on its face: the only reason for the action was the assault, which it treated as serious misconduct.
The worker argued the true reason was his complaints and his race.
Under the Fair Work Act's general protections, that argument shifts the ground. Once a worker shows they exercised a workplace right, such as making a complaint, or hold a protected attribute such as race, the employer carries the burden. It must prove that none of its substantial and operative reasons was the protected one. Lawyers call it the reverse onus.
The court accepted the delegates' stated reasons were logical and consistent with policy. The problem lay elsewhere. The agency had built a process that walled off the delegates as the sole decision-makers - a structure the court described as an effort to "quarantine" others from responsibility. Yet a senior conduct manager sat at the centre of both decisions. She helped steer the paperwork, took advice on the termination letter, and gave the delegate two options that both ended in dismissal. She was never called to give evidence.
With her account untested, the court could not be satisfied the protected reasons had played no part. The agency failed to discharge the reverse onus. The suspension and dismissal were found to contravene sections 340 and 351 of the Act.
Importantly, the court did not find that the worker was punished for his complaints or his race. It found only that the agency could not prove he was not - a critical distinction under the reverse onus.
The question of any remedy, including compensation or penalties, will be decided separately.
The takeaway for HR is uncomfortable but clear. In a general-protections claim, the merits are only half the job. If someone materially shaped a decision, they need to be ready to explain their reasons on the record. Structuring a process to keep decision-makers at arm's length offers little protection if the person who really guided the outcome never takes the stand.
