His lawyers replied on time. The email system had other ideas
Fifteen weeks off work. No return date in sight. And a solicitor's reply that never made it past the spam filter.
That was the position facing Apco Service Stations when its people and culture manager decided to end the employment of a corporate food trainer who had been absent since December 2024. The worker challenged the dismissal under the general protections provisions of the Fair Work Act 2009, arguing he was sacked for exercising workplace rights and because of his mental health condition. On September 24, 2026, the Federal Circuit and Family Court dismissed the application, finding the employer proved its sole reason for the dismissal was the worker's inability to perform the inherent requirements of his role - essentially, his inability to attend work at all.
The trouble started during store audits in regional Victoria. On December 10 and 11, 2024, the worker visited two retail sites. At the second store, a franchisee took issue with the previous day's audit findings. The worker's evidence was that the franchisee swore at him and a colleague, calling them "fucking idiots." His colleague sent him home.
The next morning, the worker raised the incident with a senior colleague. Their accounts of that conversation differed - she described it as a coaching chat about delivering negative audit results; he said she downplayed what had happened. The court did not need to resolve the difference. There was no evidence the people and culture manager - the person who ultimately made the dismissal decision - ever heard about the exchange.
After that day, the worker did not return.
He saw his GP on December 13, 2024, received a diagnosis of significant psychological distress, and lodged a workers' compensation claim. From that point, he provided a series of certificates of capacity, each stating he had no capacity for any employment. His treating doctor recorded significant anxiety and depression with symptoms including panic attacks, flashbacks, disturbed sleep, night sweats and nightmares.
Over the following months, the people and culture manager stayed in regular contact by text. She checked on his welfare, reminded him to complete the workers' compensation paperwork, and offered access to the company's employee assistance program. The text exchanges, reproduced in the judgment, paint a picture of a worker in serious distress and a manager trying to maintain the relationship.
But some of those messages carried weight the worker may not have intended.
On February 5, 2025, he told the manager he did not feel he could come back and that Apco had "destroyed" him. He described crippling anxiety, an inability to leave the house, and daily tears. When the manager raised the possibility of a resignation with a notice-period payout, the worker said he would think about it and that "the figure in my mind may be high."
He later said those words described his condition at the time, not a permanent decision. The people and culture manager read them differently - as confirmation a return was unlikely.
By mid-March 2025, the worker had been absent for about four months, had only recently started seeing a psychologist, and remained certified as having no capacity for any work. The company sent a show cause letter on March 14, inviting a response by March 21 about his ability to perform the role's inherent requirements.
Then came the spam filter.
The worker instructed his solicitors to respond. They emailed a letter on March 20 opposing the termination. But Apco's email system flagged it as a phishing attempt and blocked it. The people and culture manager never saw it.
When no response arrived by the deadline, she waited an extra week. On March 28 - still without a reply - she proceeded with the termination. The worker received the email at 1.27 pm. He immediately asked whether she had received his solicitor's letter and resent it himself. Apco's IT staff located the blocked email and released it at about 3.52 pm.
By then, the decision was made.
The court noted that even after the people and culture manager eventually read the solicitor's letter, she considered it would not have changed her decision. The letter did not provide a return date or medical evidence showing the worker could resume the role. The court itself observed that the letter "did not explain how the Applicant could perform the inherent requirements of his position (in the face of months of medical certificates suggesting otherwise), nor did it indicate when the First Respondent might expect to see the Applicant return to usual duties (or any duties at all)."
The worker's case leaned heavily on the reverse onus in section 361 of the Fair Work Act. Under that provision, once a worker shows they had a protected attribute or exercised a workplace right, the employer must prove the dismissal was not for a prohibited reason. His counsel argued the manager's stated reason - inability to meet inherent requirements - was inseparable from the worker's disability and workplace rights, and that failing to obtain medical reports or explore modified duties before dismissing him undermined the genuineness of that reason.
The court was not persuaded.
It found the people and culture manager gave honest, reliable evidence, supported by the text message trail. She had encouraged the workers' compensation claim, maintained compassionate contact, and was unaware of the complaint the worker said he raised with his colleague. Of the prohibited reasons put forward, the only one she could have been aware of was the workers' compensation claim. But awareness alone was not enough - she had to have been motivated by it.
The judge put it plainly: if the workers' compensation claim had been a motivating factor, the manager could have dismissed the worker sooner. She did not.
During the hearing, the judge intervened to flag a gap in the worker's case. No alternative basis for the dismissal had been put to the people and culture manager in cross-examination - a problem under the rule in Browne v Dunn, which generally requires a party to challenge an opposing witness's account before asking the court to reject it. Counsel was given the chance to recall the witness but declined.
The discrimination claim fared no better. The court accepted the worker had a mental disability within the meaning of the Act. But drawing on the Full Federal Court's reasoning in Western Union Business Solutions v Robinson, the judge drew a line between a disability itself and the incapacity it causes. The worker's inability to attend work was a consequence of his condition, not a manifestation of it. It was the non-attendance - not the condition - that drove the decision.
The workers' compensation claim was ultimately accepted in August 2025, several months after the dismissal. But at the time of the decision, the claim had been rejected, and the court found it played no part in the people and culture manager's reasoning.
For HR teams managing long-term mental health absences, the case offers a concrete example of what the reverse onus actually demands from an employer - and what can go wrong when the employee's legal team does not directly challenge the decision-maker's evidence.
The allegations in the application were tested at a two-day hearing in May 2026. The court dismissed the application in its entirety.
