A lunchtime email captured the decision hours before the stop-bullying request
A federal court has thrown out a probationary employee’s claim that she was unlawfully sacked, in a decision handed down on August 26, 2026 that turns on something HR teams can actually control: timing, and the records that prove it.
The worker joined a federal government agency, the Office of the Australian Information Commissioner (OAIC), in May 2024 as an executive assistant, on a six-month probation. Over the following weeks, her supervisor built up concerns about her communication, her attendance at meetings, how she followed directions, and her grasp of how the office ran. The worker had concerns of her own. She raised grievances about a senior colleague, at one point calling the treatment bullying, and later asked the agency’s HR team how to lodge a stop-bullying claim with the Fair Work Commission.
She was dismissed on August 8, 2024. She then told the court the real reasons were her complaints, her planned stop-bullying claim, and her health - she had dealt with pneumonia, workplace stress and kidney stones - along with the leave she had taken.
Those arguments met a rule that decides many of these cases. Under the “general protections” part of the Fair Work Act, once a worker points to a protected reason, the employer has to prove that reason played no part in the decision. The burden sits with the employer, not the worker.
The agency met it. The court found the supervisor had decided to end the probation by about 12.30 pm on July 26, 2024, and set out her reasons in an email to an HR colleague and a senior manager that same lunchtime. The worker did not send her stop-bullying email until 9.36 pm that night, and the supervisor did not learn of it until July 29. A decision already made, the court reasoned, could not have been driven by something the decision-maker had not yet seen. The judge treated that lunchtime email as “powerful contemporaneous evidence” of what was really behind the decision.
The court also separated deciding from doing. The gap between July 26 and the August 8 dismissal came down to workload and process, the court accepted, not second thoughts, so it did not reopen the decision.
The agency did not get everything right. Its termination letter said the worker had gone into a commissioner’s office to tidy it after being told not to. The court found she had only asked for access, and described the supervisor’s belief that she had entered as an “honest factual mistake.” Because the other concerns were genuine, the slip did not undo the decision.
The health claims fell away too. The court found the supervisor knew only in a general way that the worker had at times been unwell, and that her leave and illness played no part in the decision.
One point worth noting for HR: the court was not asked to decide whether the sacking was fair, wise or well handled, and it did not. Its job was to work out the real reasons behind it. It also did not need to rule on whether the worker’s complaints or leave technically counted as protected rights, because it found they had no bearing on the decision.
Her claim was dismissed.
