All three of his complaints counted as protected - so how did the employer still answer the claim
A data engineer sacked during probation said his complaints got him fired. A court disagreed, and how the employer proved its case is the real lesson for HR.
The Federal Circuit and Family Court of Australia has dismissed a general protections claim against EnergyAustralia, in a decision handed down on August 11, 2026, that shows how an employer can defend an adverse action case even after the worker clears the first legal hurdle.
The worker was hired as a data engineer in April 2024 on a six-month probation, terminable on one week's notice. He accepted that his performance would be monitored to decide whether he was suitable to stay.
His manager flagged problems from as early as May 2024: ticket management, the speed of his work, keeping the team updated, and being reachable during work hours. On July 8, 2024, the manager gave a written assessment to a senior manager, concluding the worker had "not shown enough to merit a successful completion of the probation period."
Along the way, the worker made three complaints, and the court found all three were protected workplace rights. That finding matters, because it shifts the legal burden onto the employer.
The first came in June 2024, after a colleague acting as his workplace "buddy" sent him a Microsoft Teams message that read, in part, "holy moly ... no half arsing please Mister." He said he was uncomfortable with the language, and she apologised straight away. He raised it with a senior manager, who agreed it was inappropriate and spoke to the colleague. The court called it a genuine complaint about inappropriate workplace behaviour, at the lower end of the spectrum, but a complaint nonetheless.
The second and third complaints, in mid-July, were about feeling scrutinised, centred on his manager checking his availability through his Teams activity status. The court accepted these were complaints he was entitled to make about the way his performance was being assessed during probation.
Then came the turning point. Once the worker had exercised workplace rights and the employer accepted the dismissal was adverse action, the law presumes the complaints were behind it. To answer the claim, the employer had to prove the complaints were not a substantial and operative reason for the sacking.
It did. The employer called evidence from everyone in the decision chain: the two managers who recommended termination, the workplace relations adviser who prepared the approval form, and the two senior leaders who signed off on it.
Each testified that the complaints played no part in the decision. The court applied settled principle: when a company acts, you look into the minds of the people who drove the decision, including anyone whose advice fed into it. So the recommending managers' reasons counted just as much as the final approval.
The court found the managers had decided early that the worker was struggling, put support around him, saw no substantive improvement, and recommended termination for performance alone. Notably, the written performance assessment came before the second and third complaints were even made. The judge accepted the two decision-makers relied on that recommendation and were not motivated by the complaints.
The application was dismissed.
For HR, the takeaway is about proof, not chance. What carried the day was a paper trail: performance concerns documented before the complaints, a visible support process, and firsthand evidence from each person who touched the decision. The worker's complaints were valid and protected, and the employer still answered the claim, because it could show the reason for the exit lay somewhere else entirely.
