The decision was made in December, but waiting until January nearly proved fatal in court
A company fired an underperforming employee in January 2025. Problem was, they had decided to do it weeks earlier but waited to avoid ruining her Christmas.
The timing nearly destroyed Roadworx Surfacing Pty Ltd in court. On January 15, 2025, WHS and QA Compliance Manager Melissa Boyd emailed CEO Steven Gillies saying she may seek workers compensation and took sick leave. The next evening, Gillies sent Boyd a termination letter with four weeks pay in lieu of notice.
Boyd sued for adverse action, claiming retaliation for the compensation proposal and sick leave. Under section 361 of the Fair Work Act, once an employee shows they exercised a workplace right and got terminated, the law assumes the employer did it because of that right. The employer must prove otherwise.
The case landed before Judge Zipser at the Federal Circuit and Family Court in Parramatta in October 2025. Boyd represented herself. On February 4, 2026, the court threw out her claim.
What saved Roadworx was evidence that the termination decision happened in December 2024, before Boyd mentioned workers compensation or took leave. Gillies testified he had decided to fire Boyd for poor performance but deliberately waited. The judgment quotes his affidavit: "I made the decision to terminate Mrs Boyd's employment in or around December 2024 on the basis of poor performance. However, given the upcoming Christmas holidays, I considered it to be more considerate to wait until the new year to actually terminate Mrs Boyd's employment."
That testimony alone would not have been enough. What mattered was corroboration from two other managers who witnessed the December decision. Manager Luke Hulme recalled a mid-December 2024 meeting where Gillies said, according to court records: "Melissa's employment won't be long term. I have made a decision to bring her employment to an end and I will be doing this at the start of the new year. I won't do it right now because we are too close to Christmas. We have too much going on operationally with the pre-Christmas shutdown to focus on finalising everything, and I don't want to put her out of a job just before Christmas."
Manager David Smith gave matching testimony and produced contemporaneous meeting notes. When Boyd cross-examined both witnesses, she did not challenge their accounts.
The performance problems were well documented. Between June and August 2024, Boyd's dealings with an external safety consultant had soured so badly the consultant threatened to stop servicing Roadworx entirely. Gillies had repeatedly told Boyd not to contact the consultant directly. By November 2024, Boyd's supervisor was reporting she regularly worked from locations other than her assigned office despite instructions otherwise.
The court found these performance issues, not the January 2025 workers compensation discussion or sick leave, drove the termination. Roadworx beat the statutory presumption by proving it made the decision before Boyd exercised protected workplace rights.
Five days later, on January 21, 2025, Roadworx sent a second termination letter, this time firing Boyd immediately without notice pay over alleged deliberate damage to a company laptop. Boyd challenged this too, but again failed to effectively dispute the employer's reasoning during cross-examination.
For people and culture teams managing underperformance, the case shows how dangerous timing becomes when terminations follow workers compensation claims or sick leave. Written documentation helps, but what carried the day here was live witness testimony from multiple managers confirming exactly when and why the company made its decision—weeks before the employee claimed any protected rights.
