Worker claims 20 years of service should outweigh attendance issues amid personal crisis
The Fair Work Commission (FWC) recently examined an unfair dismissal claim involving a long-serving warehouse storeman who argued his dismissal was unfair despite persistent attendance problems and failure to follow workplace directions.
The case arose when the worker was dismissed for not meeting the inherent requirements of his role after 20 years of service, following ongoing health issues and family circumstances that led to numerous absences.
The worker argued there was no valid reason for his dismissal because he was medically certified as fit for work and was meeting the inherent requirements of his role at the time of dismissal.
He maintained that his failure to follow directions regarding absences was not relied upon by the company as a reason for dismissal, and that even if valid reasons existed, the dismissal was unfair given his long service and mitigating personal circumstances.
The employer contested the worker's claim, arguing he was not meeting the inherent requirements of his role due to persistent absenteeism and failure to follow lawful directions regarding notification and evidence for absences.
Health, family issues trigger attendance problems
The employment relationship involved a worker employed as a storeman at a major retailer's warehouse for over 20 years, initially with a predecessor company before accepting employment with the current employer in 2021.
From 2022, the worker had many absences connected to his poor health and his son's drug addiction, with two main factors contributing to his workplace difficulties.
The first cause was his son's poor mental health, which resulted in hospitalisation during COVID-19 and diagnosis of anxiety and depression, later developing into ice addiction.
The worker, who was separated and the primary carer for his 22-year-old son, enrolled him in a rehabilitation program in 2024 involving afternoon gym sessions, requiring the worker to leave work early on some days with his team leader's approval.
The second reason was the worker's own health problems, including a 2023 diagnosis of interstitial lung disease and contracting pneumonia in 2024.
He was prescribed Gabapentin, which had severe side effects and caused dependency, though by early 2025, he had weaned himself off it. A new medication prescribed in late January 2025 improved his condition significantly, making him feel "back on his feet" physically.
Multiple warnings issued over absence procedures
The company's operations manager gave evidence that the worker's absences became noticeable from August 2022, often without notice, requiring calls to determine his whereabouts.
On 18 October 2022, he met with the worker and directed him to improve attendance and back up every absence with a medical certificate, which the worker agreed to do.
On 24 October 2022, the worker received a written direction requiring him to demonstrate immediate improvement in attendance, notify the company of intended absences before shift start, ensure appropriate documentation was provided for any absence, and provide documentation immediately following the absence. The letter stated that failure to follow these directions may lead to disciplinary action.
Similar letters were issued on 1 May 2023 and 8 August 2024, with the notification requirement updated to contact the shift phone line and notify the line manager. Despite these directions, the worker continued to provide limited information about his absences. On 12 February 2025, he received a warning letter stating that any further failures to comply with directions could result in dismissal - the only formal warning during his employment.
Medical clearance followed by continued absences
On 26 February 2025, the worker attended a meeting and received a letter requesting a doctor's report about his fitness to work, noting he had taken 21 days of absence since January. On 26 March 2025, a doctor sent a report confirming the worker was fit for work with no adjustments required.
However, after seeing the doctor, the worker contracted a respiratory virus and took several days off from late March. On 31 March 2025, he left work early feeling unwell, then sent a text to the company's sick line on 1 April at 2:53 am stating he was unwell.
On 2 April, he attended a pre-booked specialist appointment and received a medical certificate, and on 3 April, he sent another text at 2:43 am saying he was worse and would not attend work.
The operations manager noted that despite the doctor confirming fitness for work, the worker continued to be absent without proper notification or evidence. The company's records showed the worker had 92 absences in the last 12 months, with continued problems regarding notice and documentation requirements.
Show cause process leads to dismissal
When the worker returned to work on 7 April 2025, he received a letter requiring him to attend a meeting about excessive absenteeism.
The letter stated that despite medical confirmation of fitness for work, he had taken further absences and was not meeting the inherent requirements of his role, with the company considering terminating his employment.
On 11 April 2025, the worker responded with sincere apologies for the impact of his absences on the team and business, taking full responsibility.
He stated his specialist had determined appropriate treatment, his medication was balanced, and his need for extended leave would be significantly reduced.
He acknowledged struggling to communicate openly with management and asked for one more opportunity to prove himself.
On 16 April 2025, the worker attended a meeting and was given a termination letter noting his response but stating he was not meeting the inherent requirements of employment.
The decision was made to terminate his employment with immediate effect, with five weeks' salary paid in lieu of notice.
FWC identifies two valid dismissal reasons
The FWC found the employer had two valid reasons to dismiss the worker. The first was that he was not meeting the inherent requirements of his employment as a full-time team member due to his absences.
The Commission noted: "It is an inherent requirement of full-time storemen that they attend for work. [The worker] was not meeting this requirement. He had exhausted his paid personal leave, and his absences were continuing."
The second valid reason was the worker's repeated failure to follow directions regarding notice of absences and appropriate supporting evidence. The Commission found:
"The directions that were issued to [the worker] in October 2022, May 2023, August 2024, and February 2025 were lawful and reasonable. It is not in dispute that [the worker] failed to comply with the directions on many occasions."
The FWC noted that even after the warning on 12 February 2025, the worker continued to fail to provide proper notice and evidence for absences, including instances on 17 February, 25 February, 17 March, 20 March, 24 March, 25 March, 2 April, and 3 April 2025.
Application dismissed despite mitigating circumstances
The Commission acknowledged the worker's long service and genuine personal hardship, including his illness and his son's mental health issues.
The FWC noted his previous medication had caused side effects while his new medication did not, and that he had insight into the effect of his absences on workmates and the business, as shown in his response to the show cause letter.
However, the Commission found the worker's explanations for not obtaining evidence unconvincing, questioning why he could not use alternative doctors, telehealth services, or different pharmacies.
The FWC stated: "I do not consider that he was unable to comply with the directions or that it was not reasonably practicable for him to do so."
The Commission concluded: "Should [the employer] have given [the worker] a second chance, as he asked it to do in his response to the show cause? In my opinion, he had already been given a second chance and further chances. Taking into account the matters in s 387, I do not consider that the dismissal was harsh, unjust or unreasonable."
"It was not a disproportionate response in all of the circumstances. On balance, I conclude that the dismissal was not unfair. The application is dismissed," the FWC added.
