The paper trail worked, but one absent document puts the company back in court
An employer terminated a worker on her first day back from carer's leave. The court ruled it was lawful. Almost.
On 16 April 2026, the Federal Circuit and Family Court of Australia handed down a decision in Gerges v Australian Security Fencing Pty Ltd that HR professionals across the country should read carefully.
Margret Gerges started full-time employment with Australian Security Fencing Pty Ltd (ASF) on 14 June 2023 as an engineering drafting professional, reporting to general manager Jace Rosier. She completed her six-month probationary period in December 2023.
During the weekend of 20 and 21 January 2024, her eight-year-old daughter was admitted to hospital. Gerges notified Rosier by text and asked for time off. His reply: "Hi Margret, yep all good take the time you need." Despite ASF's leave policy mandating only two days of unpaid carer's leave, Rosier approved her absence for nine business days on compassionate grounds. She remained away from work from 22 January 2024 to 1 February 2024.
On 2 February 2024, her first day back, Rosier called her into a meeting and told her she was being let go.
Gerges alleged she was fired because she had exercised her right to take carer's leave under the Fair Work Act 2009. She sought $50,000 in compensation for hurt, distress and humiliation, compensation for economic loss, and civil penalties.
ASF said the decision to terminate had been made in December 2023, well before the leave period, due to ongoing performance concerns. These included missed deadlines, work that repeatedly failed to meet specifications, and an estimated 50 per cent of her work on the Silverwater Project having to be redistributed to other employees and external contractors.
The court accepted ASF's account. Judge Cameron found that a body of contemporaneous documents, including emails from October 2023, diary entries, and meeting notes from January 2024, all pointed to a dismissal decision that predated the leave by weeks. This was reinforced by the oral evidence of both Rosier and ASF director Paul Zelasko, who each gave consistent accounts of a decision reached in December 2023 to terminate Gerges's employment in the new year. The termination had been deliberately postponed to give Gerges a better chance of finding alternative employment after the Christmas period.
ASF had never issued Gerges a written warning about her performance. The court acknowledged this but found the weight of contemporaneous documentation sufficient to establish that performance, not the leave, was the operative reason for the dismissal.
Credibility also played a significant role. Judge Cameron found Gerges to be "not an impressive witness" whose answers in cross-examination were "unresponsive and sometimes evasive," and treated her evidence with "some caution." By contrast, Rosier was described as "an impressive witness who gave straightforward evidence in a thoughtful manner," with his account of the performance concerns supported by contemporaneous documents. Zelasko's evidence was also accepted.
Judge Cameron found that Gerges's "exercise of carer's leave was not a substantial and operative reason for the termination of her employment and that instead she was dismissed because of concerns regarding her work performance."
The adverse action claim did not succeed. But ASF was not entirely in the clear.
The court found that ASF had failed to provide Gerges with a written termination notice, as required under the Fair Work Act. ASF's director admitted he had believed a formal letter was unnecessary because he thought Gerges was still on probation. The court declared this a contravention of the Act, and the matter will be listed for directions in anticipation of a penalty hearing. ASF had paid Gerges four weeks' pay in lieu of notice across two instalments, but the absence of a written notice remained a breach regardless.
Gerges had also sought $50,000 compensation for psychological harm arising from the dismissal, supported by a counsellor's report on her condition. The court rejected the report, finding the counsellor had not demonstrated the specialised knowledge required to diagnose psychiatric conditions to the court's satisfaction. No compensation was awarded.
This case illustrates why real-time performance documentation matters. ASF only succeeded in defeating the adverse action claim because managers had built a contemporaneous paper trail clearly showing the termination decision predated the leave period, and because the decision-makers gave credible, consistent evidence about their reasons. Without both, the employer's position would have been far more difficult to defend under a law that presumes a connection between dismissal and protected leave unless the employer can prove otherwise. On the question of written termination notices, the court was equally unambiguous: probation does not eliminate the obligation. ASF still faces a penalty hearing as a result.
