Serco worker alleged discrimination and no fair process
A former Serco worker's general protections dismissal claim has been denied, after the Fair Work Commission scrutinised her mental health and dismissal story.
On 17 March 2026, the Fair Work Commission dismissed an application by Zeina Habib, a former employee of Serco Citizen Services Pty Ltd, who alleged she was unlawfully dismissed because of her disabilities and denied procedural fairness.
Habib was dismissed on 17 July 2025. She brought a claim under the Fair Work Act arguing Serco had no valid reason to end her employment and that she had been discriminated against because of complex post-traumatic stress disorder and schizophrenia. She also argued she was not given a fair process before her termination.
Serco told the Commission that the "substantive and operative reason" for ending her employment was medical incapacity and her inability to perform the inherent requirements of her role.
The Commission did not rule on whether the dismissal was justified. Instead, it focused on whether Habib could proceed with her case at all, given the strict 21-day filing deadline. Habib lodged her application on 16 November 2025, more than three months after her dismissal. For the matter to continue, Commissioner Connolly had to be satisfied there were "exceptional circumstances" explaining the delay.
Habib said her conditions, including trauma triggers, chronic pain and fatigue, meant she could not lodge her claim on time. She also pointed to financial hardship, limited personal support and a lack of awareness of the 21-day time frame. She provided a medical certificate issued on 31 January 2026 covering the period from 17 July 2025 to 8 August 2025.
The Commissioner accepted that Habib lives with serious psychological and physical challenges and is actively seeking treatment. But the decision turned on whether the evidence clearly showed those conditions had affected her ability to act during those 21 days. The Commission found it did not. In Commissioner Connolly's words, "I am, therefore, not satisfied the Applicant has provided a credible and reasonable explanation for the period of the delay."
The Commission also looked at other factors Habib raised, including financial hardship, lack of support and not knowing about the time limit. It noted that stress and financial pressure after job loss are common experiences, referring to previous authority stating that "Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered."
The Commissioner further noted that, shortly before her employment ended, Habib had managed to represent herself and give evidence in unrelated proceedings involving the National Disability Insurance Agency, suggesting she retained the capacity to engage with formal processes.
On the steps she had taken to dispute her dismissal, Habib said she had spoken to multiple levels of management, contacted the Fair Work Ombudsman and WorkSafe, and attempted internal resolution. Serco disputed having received any communication from her before the Commission notified it of the claim. Without the chance to test those competing accounts, the Commissioner treated this as a neutral factor.
The Commission found no particular prejudice to Serco if the matter proceeded late, but held that the absence of prejudice was not enough to justify an extension. The merits of the dismissal were treated as neutral too, as they had not been fully tested. Habib's application was ultimately dismissed without any ruling on whether the dismissal itself was lawful or whether Serco's stated reasons and process met workplace standards.
The case underlines that terminations linked to medical incapacity and mental health require thorough documentation, particularly around capability assessments, inherent requirements and the supports offered to employees. It also illustrates that a diagnosis alone does not automatically establish incapacity to act during a specific period, a distinction the Commission examined closely here.
