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Employee lawfully dismissed for failure to meet probation terms

The Federal Magistrates Court has held that an employer did not take unlawful adverse action, breach disability discrimination laws or breach unlawful termination laws when it refused to extend an employee’s work improvement plan and dismissed the employee.

During the employee’s probationary period, she took time off work due to health issues.  The employee was put on a return to work plan (with reduced working hours) and a work improvement plan for failure to meet productivity targets.  The employee was given an opportunity to respond to the employer’s concerns and requested an extension of the work improvement plan.  The employer rejected that request and dismissed the employee because of inappropriate workplace behaviour and failure to meet the requirements of her probation. 

The employee argued that:

  • her health issues impacted on her ability to perform to the required standard and, therefore, her dismissal for that reason amounted to disability discrimination;
  • she had been dismissed because of her temporary absences from work and such a dismissal was unlawful; and
  • she had been dismissed because she had complained about the disciplinary process and had indicated that she might make a formal complaint, which amounted to unlawful adverse action.

The Court held that the dismissal was because of the employee’s failure to meet her probationary requirements and was not motivated by her illnesses, injuries or temporary absences.  The Court also considered that the employee’s responses to the disciplinary process did not amount to a complaint about her employment and, in any event, that was not the reason for her dismissal.

However, the Court held that the employer’s rejection of the request for an extension of the work improvement plan had altered the employee’s position to her prejudice and was, therefore, adverse action.  But then the Court found that this adverse action had not been taken for a prohibited reason (such as the employee’s disability) and, therefore, was not unlawful.

Hodkinson v The Commonwealth [2011] FMCA 171 



  • Laura Simmons-Strempel - Solicitor | Email

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