Three days separated the email from the exit - the court found the probation clock explained it
A worker chased her leave request and flagged an ATO records error. Three days later, she lost her job. Her adverse action claim failed.
The Federal Circuit and Family Court dismissed the claim on August 14, 2026, on a threshold point. The employee, the court found, had not exercised a workplace right at all when she sent the email she relied on. That finding meant the employer was never required to prove why it dismissed her.
She started with the business in Australia around September 26, 2024 on a part-time basis and moved to full-time as a Marketing Executive around October 7, 2024. The respondents were EzyPay Solutions Pty Ltd and EzyRemit Worldwide Pty Ltd. On evidence the court accepted, EzyPay trades under the name EzyRemit, EzyRemit does not trade in its own right, and the main activity is an "international funds transfers/remittance service provider" operating through its own online platform. Her Letter of Offer, dated September 19, 2024, put her on six months' probation ending March 26, 2025. During that period, either side could end the contract on one week's notice.
On March 12, 2025 she asked for seven days of annual leave across April and May. Nine days later, having heard nothing, she followed up with an email raising two items. The first chased the status of the leave request. The second, headed "ATO Report Update," said her ATO record from September 29, 2024 onward did not reflect her employment with the company. It asked: "Could you kindly check for any issues with the reporting and let me know if any action is needed?"
The company replied at 11.03 pm the same day. On the leave request it said: "As your probationary period was due for review, your request for annual leave was put on hold pending the outcome of the review." On the ATO item, the reply said the company's accountant had traced the problem to an ATO error recording her family name wrongly, that it had been rectified, and that no further action was required from her.
The decision to end her employment was made sometime between March 21 and March 24. She was dismissed on March 24 with one week's notice and finished on March 29. She lodged a general protections dismissal claim with the Fair Work Commission on March 28, 2025. A conference before a Deputy President did not resolve it, the Commission issued a certificate on June 30, 2025, and she filed in court the next day. She ran the case herself. The employer was represented by counsel.
Her amended statement of claim, filed October 3, 2025, had pleaded a broad case: leave requests associated with medical treatment, internal complaints about compliance with workplace laws and company governance, disability discrimination, and unpaid entitlements including overtime. By the time she filed opening submissions, the adverse action claim rested on the March 21 email alone. She said the leave references in it were context, not a separate right.
The employer raised a preliminary objection that the court could not hear the claim at all. Because the case now advanced had not been put to the Commission in that form, it argued, section 370 of the Fair Work Act barred it. The court agreed the claim had not been advanced before the Commission, but rejected the objection. Applying the reasoning in Shea v TruEnergy Services, it held a court claim may be differently formulated provided it relates to the same underlying dispute. The March 21 email had been referred to in documents before the Commission, including a statement in which the employee said she had requested leave and flagged a superannuation issue on that date. The claim could proceed.
That left the central question, and the court split it in two.
Was the email a complaint? Under the Full Court's decision in Alam v National Australia Bank, a complaint means an expression of grievance or a finding of fault that seeks consideration, redress or relief. A mere request for assistance is not enough. The court found the email identified no grievance, dissatisfaction or fault on the company's part. It was, in the court's words, "a request for administrative assistance to correct online information said to have resulted from a spelling error in the applicant's family name" in her ATO records. The company's reply dealt with the matter under the same "ATO Report Update" heading, which the court said supported that reading. So did the employee's own evidence at the hearing: she wanted the spelling corrected so she could access the ATO website and view her superannuation details.
She had argued the email was really a complaint about superannuation - unpaid contributions, and contributions going into an AustralianSuper account rather than her nominated AMP fund. Neither subject appears in the email, the court found, and neither gave rise to it.
Was the email an inquiry, then? Not every question an employee asks attracts protection. The court held an inquiry must be anchored in an existing right, entitlement or other recognised source connected to the employment, or concern a subject the employment relationship makes provision for. It cannot be made "at large." Here the records were the ATO's records about her, and the evidence showed the error was the ATO's. She had not shown any entitlement underpinning the question.
On both limbs, the claim failed. Because no workplace right had been exercised, section 361 of the Fair Work Act - which presumes an employer acted for a prohibited reason unless it proves otherwise - was never engaged.
The court then set out what it would have found had it been wrong on that point. It stressed this was not necessary to the outcome.
Three directors who took part in the decision gave affidavit evidence that concerns about the employee's performance and attitude during probation were the sole reasons for the dismissal. One said the leave request had been put on hold because there was a "very real possibility" her employment would end at an upcoming board meeting over performance concerns. Another said he was unaware of the March 21 email before the termination. The company's human resources officer said in an unchallenged affidavit that she recommended termination on performance grounds, that the board accepted the recommendation, and that probation had not been satisfactorily completed. All three directors were made available for cross-examination; the employee questioned two of them.
The court accepted that evidence. It found the two directors who were cross-examined had each honestly believed the employment should end because of performance concerns during probation, and it accepted the third director's evidence that he was unaware of the email and that his decision rested solely on performance concerns.
The employee had pressed the gaps in the paper trail: no board minutes, no board resolution, no document recording a final decision before March 21. The court accepted the records were absent and said it did not treat that as conclusive. No general legal requirement makes every managerial or operational decision, including a dismissal, a matter of board minutes, and the absence did not displace the evidence the court had accepted.
On the three-day gap, the court said temporal proximity can be relevant but was not determinative here. The 11.03 pm reply had already recorded that probation was "due for review" and that the outcome was expected "by 24 March 2025" - because probation ran out on March 26. The court found the timing of the dismissal was related to the probationary review, which had to be completed before the period ended.
The unpaid entitlements claim also failed. The employee said she had performed "higher duties" beyond a Marketing Executive role, including external stakeholder engagement, strategic initiatives and client-facing responsibilities, and pointed to the employer's own evidence about her seniority and access authority. She led no evidence in support and identified no contractual term, award provision or statutory entitlement capable of supporting the claim. The court found it had "no merit."
The application was dismissed. Because of those findings, the court did not need to consider the compensation and penalty orders she had sought. No order was made as to costs.
