Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application - application dismissed

• [1] Anthony Clark has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Mr Clark was employed by Woolworths Group Limited (Woolworths) as a storeman at its warehouse in Mulgrave. Mr Clark worked at the warehouse for over 20 years. Initially he was employed by Phillip Leong Stores Pty Ltd (Phillip Leong). In 2021, he accepted employment with Woolworths, which recognised his service with Phillip Leong. From 2022, Mr Clark had many absences from work connected to his poor health and his son's drug addiction. In October 2022, May 2023, and August 2024, Mr Clark was directed in writing to provide notice of and evidence for his absences, and was told that failure to comply could result in disciplinary action. On numerous occasions, Mr Clark did not do these things. On 12 February 2025, Mr Clark was given another direction to give notice and evidence for absences, and was warned that further non-compliance could result in his dismissal. Between 17 February 2025 and 3 April 2025, Mr Clark was absent on a number of further occasions without providing evidence or giving notice of his absence. On 7 April 2025, Woolworths put to Mr Clark that, despite recently being certified fit for work, he was not meeting the inherent requirements of his job. Nothing was said of his ignoring directions, or of the warning from 12 February 2025. Mr Clark replied that his health had improved and that he was committed to doing better, and asked for another chance. On 16 April 2025, Woolworths dismissed Mr Clark on the ground that he was not meeting the inherent requirements of his role.

• [2] Mr Clark contends that there was no valid reason for his dismissal because he was fit for work and at the time of his dismissal he was meeting the inherent requirements of his role. Mr Clark said that his failure to follow directions in relation to absences was not relied on by the company as a reason for dismissal or put to him at the time of his dismissal. He submits that even if there was a valid reason to dismiss him, the dismissal was unfair because of his long service and mitigating personal circumstances.

• [3] Woolworths submits that Mr Clark was not meeting the inherent requirements of his role both because of his persistent absenteeism, and because he was not following the lawful and reasonable directions that he had been given on numerous occasions. Woolworths said that it had made extensive efforts to assist Mr Clark, and that there was nothing unfair about his dismissal given his very poor attendance record and his persistent failure to comply with its directions to provide notice of and evidence for his absences.

• [4] Mr Clark gave evidence that two things caused him to take numerous absences from work from 2022. The first was the poor mental health of his son, which had resulted in his hospitalisation during the COVID-19 pandemic and a diagnosis of anxiety and depression, and later a drug dependency that saw him addicted to ice. Mr Clark said that in 2024 he enrolled his son in a rehabilitation program which involved a gym session in the late afternoon and that he agreed with his team leader, Ivan Trbusic, to leave work an hour early on some days to take his son to the course. Mr Clark said that he is separated from his wife, and that he is the primary carer for his son, who is now 22.

• [5] Mr Clark said that the second reason for his absences was his own poor health. In 2023, he was diagnosed with interstitial lung disease. In 2024 he contracted pneumonia and was sick for several months. Mr Clark said that in mid-2024, he was put on a drug called Gaberpantin which had bad side-effects, and that he developed a dependency on the drug, but by late January or early February 2025 he had weened himself off it. He said that as a result of these health problems he had missed a lot of work, but that a new drug, Entrip, was prescribed for him in late January 2025, which is much better, and he now feels 'back on his feet' physically.

• [6] Mr Clark said that as a result of his health challenges in particular, he had many absences in 2024. He ran out of personal leave and took unpaid leave. Mr Clark said that while taking Gaberpantin, he found administrative tasks harder to do. He told Mr Trbusic about his health problems. There was a meeting in August 2024 that was attended by the union delegate, at which management told him that they were concerned about his poor attendance. At a meeting on 5 December 2024, he was told that his attendance for work was poor and that he had not submitted proper evidence to explain his absences. Mr Clark replied that he had been in poor health, that his medicine had side-effects, and that his son was addicted to drugs. Mr Clark said that after this meeting, he took steps to get the required evidence for his absences and provided this to the company.

• [7] Mr Clark said that on 12 February 2025, he attended a meeting with Mr Trbusic at which they discussed his absences, and that after the meeting, Mr Trbusic gave him a warning letter. This stated that if he failed to follow directions, his employment might be terminated. Mr Clark said that this was the only time during his employment that he had received a warning.

• [8] On 26 February 2025, Mr Clark attended a meeting with Mr Singh, who gave him a letter asking him to obtain a report from his doctor about his fitness to work. Mr Clark agreed. On 26 March 2025, a Dr Ghabrial sent a report to the company which stated that Mr Clark was fit for work.

• [9] Mr Clark's evidence was that after seeing Dr Ghabrial, he contracted a respiratory virus and took several days off from the end of March. On Monday 31 March 2025, he left work early as he was unwell. On Tuesday 1 April 2025, he sent a text message to the 'sick line' number stating that he was unwell and would not be in that day. Mr Clark said that employees are instructed to use this process if they are sick and to advise the shift by 6.00am. He sent his message at 2.53 am. Mr Clark said that on Wednesday 2 April 2024 he attended a pre-booked appointment with his specialist, who increased his medication and gave him a medical certificate for that day. Mr Clark said that he made a statutory declaration in respect of his absence on Tuesday 1 April 2025, stating that he was sick that day. Mr Clark said that he was also unwell on Thursday 3 April 2025, so he sent a text to the sick line number, at 2.43am, stating that he seemed to be worse, that the doctor had increased the medication, and that he would not be at work that day. He did not provide a medical certificate or statutory declaration for that day. In his evidence, Mr Clark did not address in any detail the other occasions between 12 February 2025 and 3 April 2025 when he was absent from work.

• [10] Mr Clark said that when he returned to work on Monday 7 April 2025, he was given a letter requiring him to attend a meeting about excessive absenteeism. At the meeting, Mr Singh gave him a letter stating that, despite Dr Ghabrial confirming that he was fit for work, he had taken further absences from work and was not meeting the inherent requirements of his role. The letter noted that he had had 92 absences in the last 12 months, and that the company was considering terminating his employment. It asked Mr Clark to provide any information that he would like the company to consider.

• [11] On 11 April 2025, Mr Clark responded to Mr Singh's letter. He offered his sincere apologies for the significant impact that his absences had had on the team and the business, and said that he took full responsibility for this. He said that he was grateful for the patience, understanding and support that the company had shown him during a distressing period in his life. He stated that his specialist had now determined an appropriate course of action and his medication was now balanced, and that his need for extended leave would be significantly reduced. He said that he had been overwhelmed and had struggled to communicate openly with management, and that he ought to have done so. He asked the company to give him one more opportunity to prove himself, and stated that he was eager to return to work with a renewed sense of focus and appreciation for a second chance.

• [12] On 16 April 2025, Mr Clark attended a meeting with Mr Singh and Mr Trbusic and was given a letter which noted his response to the letter of 7 April 2025 but stated that he was not meeting the inherent requirements of his employment and that a decision had been made to terminate his employment with immediate effect. He was paid 5 weeks' salary in lieu of notice.

• [13] Mr Singh gave evidence that Mr Clark's absences started to become noticeable in August 2022. Mr Clark was often simply absent without any notice, which meant that Mr Singh would have to call him to find out what was going on. Mr Singh said that on 18 October 2022, he met with Mr Clark and told him that he needed to improve his attendance and that every absence had to be backed up with a medical certificate. Mr Clark replied that he could do this.

• [14] Mr Singh said that on 24 October 2022, he gave Mr Clark a letter which directed him to demonstrate immediate improvement in attendance, to notify the company of his intended absences before the start of shift, to ensure appropriate documentation was provided for any absence, to provide documentation immediately following an absence, and to behave in a manner consistent with the Woolworths Values policy. The letter stated that failure to follow these directions may lead to disciplinary action.

• [15] Mr Singh said that on 1 May 2023, he met with Mr Clark again, and read out to him a letter that he subsequently handed to him. The letter was in terms similar to the letter of 24 October 2022. Mr Singh did not refer in his evidence to any particular absences by Mr Clark between the 6 months that separated these letters. However, an attachment to his statement set out a table of all of Mr Clark's absences from 2022 (see further below).

• [16] Mr Singh said that Woolworths continued to have the same problems with Mr Clark not always giving notice of his absences or providing evidence for them, and that because of this he met with Mr Clark again on 8 August 2024, and gave him another directions letter, in terms similar to the previous one. The notification requirement was now to contact the shift phone line to advise of intended absences, and to notify his line manager. Mr Singh said that despite the letter, Mr Clark continued to provide limited information about his absences. On 12 February 2025, Mr Trbusic issued Mr Clark with a warning letter, stating that any further failures to comply with directions could result in dismissal.

• [17] On 26 February 2025, Mr Singh wrote to Mr Clark, noting that he had taken 21 days of absence since January, and that he had submitted medical certificates indicating that he was unfit for work. The letter stated that it was important for the company to understand his medical condition and that he was therefore requested to have his doctor provide documentation about his condition, including his fitness to work, and whether adjustments were necessary. Mr Singh said that Dr Ghabrial's letter of 26 March 2025 confirmed Mr Clark's fitness for duty, but despite this he continued to be absent without notifying the company or providing evidence.

• [18] Mr Singh attached to his witness statement a table (exhibit HS3) setting out Mr Clark's absences from June 2022 onwards, and indicating what if any evidence he had provided in respect of his absences, and also whether he provided notice that he would be absent.

• [19] Mr Singh said that it was clear to him that Mr Clark was not improving, and that he was still not meeting the inherent requirements of his job. He was not complying with the many directions that had been given to him. Mr Singh said that this was causing problems for the team because the company kept having to find other staff to cover his shifts, often at the last minute. Mr Singh said that he felt that Mr Clark was not taking his job seriously. On 7 April 2025, he gave Mr Clark a letter asking him to show cause why his employment should not be terminated. On 11 April 2025, he received Mr Clark's letter in reply. Mr Singh said that he felt sympathy for Mr Clark but did not believe that he had explained or justified the problems that had persisted for several years, and that he considered that dismissal was the appropriate outcome.

• [20] Mr Trbusic gave evidence that Mr Clark had a pattern of absenteeism. He would provide medical certificates or statutory declarations with little detail covering multiple absences and sometimes he would give no notice of his absences, which meant that there would be no time to arrange for agency staff to replace him. Mr Trbusic said that he asked Mr Clark a number of times whether he wanted to work part-time, but he showed no interest. He also reminded Mr Clark of the company's employee support program.

• [21] Mr Trbusic said that he was aware from Mr Singh that Mr Clark had been issued with a letter in August 2024 that required him to communicate his absences to the company and to provide supporting documentation. When his attendance did not improve between August and December 2024, Mr Trbusic arranged a meeting with Mr Clark to discuss the problem. This occurred on 5 December 2024. The meeting notes were attached to Mr Trbusic's statement. At the meeting, Mr Trbusic told Mr Clark that he had failed to follow directions relating to absences. Mr Clark replied that the main reason he had not been able to provide the required documentation for absences was that there were limited times when he could get statutory declarations witnessed.

• [22] Mr Trbusic said that on 12 February 2025 he gave Mr Clark a letter which referred to the meeting on 5 December 2024 and warned Mr Clark that if there were any further instances of failure to follow the directions, disciplinary action could be taken, including dismissal. These directions were similar to those in the 3 letters from Singh. Mr Trbusic's letter directed Mr Clark to do the following:

• attend work in accordance with your roster;
• demonstrate an immediate and sustained improvement in your attendance;
• contact the site or duty manager to advise of your intended absence as soon as you become aware that you will be unable to attend your shift, providing two hours' notice of your intended absence where practicable;
• provide supporting evidence (such as a medical certificate or statutory declaration) for any absences due to illness or injury, including single day absences, in a timely manner (i.e. on the next rostered shift); and
• behave in a manner which is consistent with the Woolworths Values.

• [23] In his witness statement in reply, Mr Clark said that he always tried to get a medical certificate or statutory declaration when taking personal leave but that his doctor was hard to get an appointment with and it could be difficult to get a statutory declaration witnessed at the local pharmacy, because the pharmacist would get angry and say that he did not have time. Mr Clark would then have to go to the Frankston police station on a Friday, which is his day off. He said that he would never deliberately not get a declaration or a certificate, and that his medication sometimes made it difficult to keep on top of these things. Mr Clark also said that it was not his understanding that he needed to submit a declaration or a certificate for part-day absences when he went home sick, and no one ever told him that this was necessary.

• [24] Mr Clark said that the company's summary table of his absences from 2022 (HS3) did not paint an accurate picture because it did not account for the times when he orally gave notice to Woolworths that he would not be able to attend work. He said that he would often call the sick line and that he had reviewed his phone records, which showed that he called the line on 6 and 19 February 2025, and on 14 occasions from May to December 2024. He was not able to access his phone records prior to May 2024.

• [25] Mr Clark also said that HS3 did not show the times when he told Mr Trbusic or Mr Singh at work that he would be absent, and that examples of such instances included a number of absences in October 2024, and in February and March 2025. These related to Mr Clark's leaving early to take his son to a course for his drug addiction. (Mr Trbusic confirmed that he had approved these absences). Mr Clark also said that for his absence on 3 April 2025, he did not obtain a statutory declaration as he did not feel well enough to do so, and when he returned to work on 7 April 2025, his focus was on responding to the show cause letter.

• [26] In cross-examination, Mr Singh agreed that HS3 did not capture notifications of absences that were made orally. He also said that the company did not ask for evidence to support part-day absences.

• [27] Mr Clark submitted that there was no valid reason for his dismissal because contrary to Woolworths' assertion at the time of his termination, he was able to meet the inherent requirements of his job. Dr Ghabrial's report had confirmed that he was fit for duty and that no adjustments were required, and the company had produced no evidence to the contrary. Mr Clark further submitted that at the time of the dismissal, his attendance had improved. His medication had changed and he was no longer suffering the adverse side-effects of the Gaberpantin that he had previously been taking. Mr Clark said that Woolworths now sought to revise its reasons for his dismissal and rely on absences and failures to comply with directions, but these were not a valid reason to dismiss him in circumstances where he had over 20 years of dedicated service and had suffered significant medical and personal problems that had had a negative impact on his attendance and his ability to communicate with the company.

• [28] Mr Clark contended that, even if the Commission were to conclude that there was a valid reason for his dismissal, the termination of his employment was nevertheless harsh and disproportionate in light of his good and loyal service, during which he had received only a single warning, and that even considering the period from 2022, when poor health and family circumstances caused a significant number of absences, his record was still a good one. Mr Clark said that there was evidence of a change in his medical situation which had resolved the underlying concerns that had been causing him to be absent; and he had taken responsibility for his past absences and made an express commitment to rebuild trust. Mr Clark said that his attendance had improved, and his latest absence was due to illness. Mr Clark submitted that the Commission should order his reinstatement, together with associated orders for the maintenance of his continuity of employment and for lost pay.

• [29] Woolworths submitted that there was a valid reason for Mr Clark's dismissal constituted by his persistent absenteeism and failure to follow repeated lawful and reasonable directions to notify it of absences and provide satisfactory supporting evidence for them, and that by doing these things he was not meeting the inherent requirements of his job. It said that despite the warning on 12 February 2025, over the following weeks to early April 2025, he failed to provide evidence for absences on numerous occasions, and failed several times to provide notice of his absences. Because of his continued absences, Mr Clark was asked to provide medical information from his doctor, who confirmed on 26 March 2025 that he was fit for work. But because his absenteeism and compliance with absence-related directions was not improving, Woolworths commenced a show cause process through the letter of 7 April 2025. Mr Clark's response of 11 April 2025 did not provide an adequate explanation to justify his conduct and he was accordingly dismissed.

• [30] Woolworths submitted that Mr Clark was afforded procedural fairness, and that the decision to dismiss him was not disproportionate or otherwise harsh, unjust or unreasonable. The company further submitted that it had gone to great lengths to engage with Mr Clark about his absenteeism and failure to follow directions, a fact that Mr Clark acknowledged in his reply to the show cause letter. Woolworths said that the application should be dismissed, or alternatively that reinstatement was inappropriate, and that any compensation should be minimal as it was unlikely that the employment would have continued for much longer had he not been dismissed on 16 April 2025.

• [31] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account the matters in s 387(a) to (h) of the Act.

• [32] I find that Woolworths had two valid reasons to dismiss Mr Clark (s 387(a)). The first was the reason for dismissal cited by Mr Singh in the show cause and termination letters: Mr Clark was not meeting the inherent requirements of his employment as a full-time team member. Contrary to the perspective of Mr Clark in these proceedings, Mr Singh was not alleging that he did not have the medical or other capacity to do his job. He was fit for duty. Dr Ghabrial had certified to this effect on 26 March 2025. Rather, the concern was that Mr Clark was not in fact meeting the inherent requirements of his role because of his absences. The show cause letter noted that Mr Clark had had 92 days of absence in the last year, and that since Dr Ghabrial's report he had taken further days of absence. It is an inherent requirement of fulltime storemen that they attend for work. Mr Clark was not meeting this requirement. He had exhausted his paid personal leave and his absences were continuing.

• [33] The second valid reason for dismissal was that Mr Clark had repeatedly failed to follow the company's directions to provide notice of absences from work, and appropriate supporting evidence to substantiate the reason for the absence, such as a statutory declaration or medical certificate. The directions that were issued to Mr Clark in October 2022, May 2023, August 2024, and February 2025 were lawful and reasonable. It is not in dispute that Mr Clark failed to comply with the directions on many occasions, even if the extent to which he did so is in dispute. Woolworths had previously taken a lenient approach to the enforcement of its requirements. Although the earlier directions had referred to the possibility of disciplinary action if the directions were not followed, it was not until 12 February 2025 that Woolworths explicitly told Mr Clark that if he did not comply with the directions, he could be dismissed. But still Mr Clark's disregard of the directions persisted.

• [34] Five days after the warning of 12 February 2025 was issued, on 17 February 2025, Mr Clark was absent from work without providing notice. This was a part-day absence of 3.17 hours. On 25 February 2025, Mr Clark was absent again without providing notice, or evidence. This was a part-day absence of 5.33 hours. Mr Singh said in his evidence that he did not expect employees to provide evidence for part-day absences, however the warning letter given to Mr Clark stated that he was required to give evidence for single day absences, which in my view includes part day absences. But even if the failure to provide evidence for part-day absences is put to one side, it is still the case that Mr Clark failed to provide notice for a number of absences after the warning on 12 February 2025. On 17 March 2025, Mr Clark was absent for a whole day, and while he gave notice of his absence from work, he did not provide any supporting evidence. On 20, 24 and 25 March 2025, Mr Clark was again absent from work without providing either notice or evidence (24 and 25 March were part-day absences). Then on 2 April 2025, Mr Clark was absent from work without providing notice, but submitted a medical certificate. And on 3 April 2025, he was absent from work and provided notice, but no evidence. Mr Clark said that he was too unwell to obtain the evidence on the day, which one might understand; but he also said that from 7 April 2025 he did not provide evidence because he was focused on responding to the show cause letter. I do not find this to be an acceptable explanation.

• [35] Mr Clark's failure to follow directions, particularly those after the warning that was given to him on 12 February 2025, was a valid reason for dismissal related to his conduct. They were contraventions of his contract of employment. This valid reason for dismissal was not the reason relied on by Mr Singh in his show cause correspondence to Mr Clark or the letter of termination. This is somewhat surprising; to my mind, this was the more obvious reason to dismiss Mr Clark, given the recent warning. But this does not matter. The employer is not confined to relying on the reason for dismissal that is given at the time of termination. Moreover, it is well established that a valid reason for dismissal under s 387(a) is one that the Commission finds to be a factually substantiated and good reason to dismiss the employee. It does not need to be the employer's valid reason.

• [36] Mr Clark submitted that his extenuating personal circumstances rendered any reason for dismissal invalid, however in my opinion these circumstances, and the proportionality or otherwise of the dismissal to the relevant conduct, are more appropriately considered under s 387(h), 'any other matters the FWC considers relevant'.

• [37] As to ss 387(b) and (c), Mr Clark was notified of the first valid reason for dismissal (not meeting inherent requirements), which was cited in the show cause and termination letters. He had an opportunity to respond to it. Mr Clark was notified of the second valid reason (failure to follow directions) as a potential reason for dismissal, in the various reminder letters that contemplated disciplinary action for failure to follow directions, and also in the warning letter of 12 February 2025. But he was not afforded an opportunity to respond to the second valid reason for dismissal because it was not specifically put to him in the show cause letter.

• [38] Mr Clark was not refused a support person (see s 387(d)). To the extent that the dismissal might be regarded as one involving performance (s 387(e)), Mr Clark was warned that his failure to follow directions could lead to his dismissal. Woolworths is a large employer and in my view the considerations in ss 387(f) and (g) do not carry any weight.

• [39] A substantial consideration under s 387(h) is Mr Clark's long period of service, and the fact that over the last few years he has encountered genuine personal hardship, both through his own illness, and the poor mental health of his son. It is also relevant to note that his previous medication had caused a range of side effects, whereas his new medication does not. I also accept that Mr Clark has insight into the effect of his absences on his workmates and the business. This is apparent from his response to the show cause letter. Whether there had been an improvement in Mr Clark's attendance and compliance with directions is debatable. It is clear that despite his fitness for duty, and his new medication without side effects, his absences had continued, and so too had his failure to comply with directions. It is not alleged, and it is not the case, that Mr Clark defied the directions and never complied with them. But what was required of him was not that he sometimes comply, or that he comply when it was easy or convenient to do so, but rather that he always comply with the directions. He did not do this, even after being explicitly warned that further failures could result in dismissal. His continued non-compliance was not singular or of a minor nature, but repeated and of substance. It is also relevant to consider the context of Mr Clark's having been repeatedly directed over several years to comply with directions about notice and evidence, and to improve his attendance. He had only the one formal warning. But his record had not been a good one in recent times. On no view was Woolworths hasty in taking disciplinary action against Mr Clark. Further, because his health had improved, one would have expected Mr Clark to be more attuned to the explicit warning given to him on 12 February 2025, and to heed it. But he did not.

• [40] On one view, Woolworths' tolerance of Mr Clark's absences and failure to comply with its directions could be said to have contributed to the problem by instilling in him a sense of impunity. However, I do not view the matter in this way. For several years the company had been lenient with Mr Clark but that did not preclude it from deciding to adopt a stricter approach. Further, this is not a case where the employer turned a blind eye to a concern and then demanded compliance overnight. Mr Clark was told in December 2024 that failure to comply with directions could lead to dismissal. He was given a letter to this effect in February 2025. Still his non-compliance with directions persisted. It was not until April that he was finally dismissed.

• [41] I find Mr Clark's reasons for often not being able to obtain evidence for absences to be unconvincing. Why could he not go to a different doctor for a certificate when his own physician was busy? Why could he not obtain a certificate from one of the abundant telehealth clinics that provide such services, as so many people appearing in the Commission these days do? Why, if his pharmacist was rude or too busy to witness a statutory declaration, could he not go to another pharmacy? Mr Clark may say it was his illness or the accumulation of his life's difficulties that precluded these things. But I would not accept this.

• [42] Mr Clark said that his refusal to follow directions was not wilful. I accept that it was in no way malicious. And I accept that Mr Clark was contending with genuine hardship. But I do not consider that he was unable to comply with the directions or that it was not reasonably practicable for him to do so.

• [43] I take into account Mr Clark's long service and also his age. As to the financial impact of the dismissal, there is some force in Woolworths' argument that this is not as acute as Mr Clark suggests, given that he took so many unpaid absences, and did not start looking for jobs until some two months after his dismissal, despite having been certified fit for work. Further, Mr Clark has found another job, albeit a casual one. Nevertheless, the loss of his longstanding job and regular income is a weighty matter.

• [44] Should Woolworths have given Mr Clark a second chance, as he asked it to do in his response to the show cause? In my opinion, he had already been given a second chance, and further chances. Taking into account the matters in s 387, I do not consider that the dismissal was harsh, unjust or unreasonable. It was not a disproportionate response in all of the circumstances. On balance, I conclude that the dismissal was not unfair. The application is dismissed.

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