Lessons for employers: Managing absenteeism and fair dismissal under the Fair Work Act

The Fair Work Commission (FWC) has upheld the dismissal of a long-serving warehouse employee at Woolworths Group Limited (the Employer), despite the company’s historically lenient approach to the Employee’s attendance issues.¹

This article discusses the recent decision, implications for employers and offers a guideline to communications with absent employees.

The background

The Employee, who had worked at a Melbourne distribution centre for over 20 years, was terminated after accruing 92 days of absence in a 12-month period and repeatedly failing to comply with notification and evidence requirements. The Employer had issued multiple directives between 2022 and 2024 instructing the Employee to improve his attendance, notify the company of absences before shifts and provide appropriate medical documentation or statutory declarations. Throughout the employment, the Employee had various health issues and caring responsibilities for his son.

After a long tolerance of ongoing absenteeism, the Employer gave the Employee a warning on 12 February 2025 stating that any further failures to comply with directions could result in dismissal. Just after this, the Employee was requested to attend an independent medical assessment, which confirmed his fitness for work. Despite these warnings and offers of support, including part time work and access to employee assistance programs, the Employee’s attendance did not improve and he was dismissed with five weeks’ notice paid in lieu. The Employee subsequently made an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act), arguing that his dismissal was unfair, citing personal and medical challenges, including his role as a carer for his son and his own health issues. He claimed he had recently recovered and was fit to work at the time of dismissal.

The decision

Deputy President Alan Colman found that the dismissal was not unfair. The FWC accepted that the Employer possessed two valid reasons for the termination of the Employee:

• First, the Employee was failing to meet his inherent obligations of his full time role due to persistent and excessive absences.
• Second, the Employee had repeatedly failed to comply with the clear and reasonable directions regarding absence notifications and evidence.

Whilst acknowledging the Employer’s prior leniency may have contributed to the Employee’s perception of impunity, the FWC held that this did not prevent the Employer from later adopting a firmer stance. The decision emphasised that the Employer had not acted hastily or without warning. Rather, it had provided multiple opportunities for the Employee to rectify his conduct, including a final warning in early 2025. The FWC rejected the Employee's claim that he deserved another chance, noting he had already been given several. The dismissal was found to be proportionate and procedurally fair.

Implications for employers

Lawfully and fairly managing absenteeism can take some time and tenacity from employers – although it is likely that the Employer in this instance could have dismissed the Employee much earlier if they had been more active in managing the concerns. This decision reinforces several key principles for employers managing long-term absenteeism and performance concerns:

• Employers should ensure that any action taken aligns with applicable workplace policies, enterprise agreements, or awards. These documents may contain specific procedures or thresholds for managing absenteeism or for notification procedures of absence.
• It is worth noting that the Employer in this instance terminated the employee after 92 days. It is unlawful under the FW Act to dismiss an employee for a temporary absence due to illness or injury if the absence is less than:
  • three consecutive months; or
  • a total of three months over a 12 month period (if the employee has provided evidence such as a medical certificate).²
• Dismissal in breach of this provision may expose an employer, and individuals involved in the contravention, to civil penalties. However, as the case illustrates, dismissal may still be lawful if based on non-compliance with reasonable directions (for example, absence notification procedures), rather than the absence itself.³
• Dismissal for excessive absenteeism is generally not considered serious misconduct under the FW Act. Rather, it is typically framed as a failure to meet the inherent requirements of the role, namely, regular and reliable attendance. As such, it requires a procedurally fair process, including prior warnings and opportunities to improve, and it means that an employer must provide notice of a dismissal (or payment in lieu, which would be more common).⁴
• Be wary of the potential for disability discrimination if an employee has a genuine illness, injury or disability which is causing absence. The Employer in this case managed this risk by requesting that the employee attend an independent medical assessment, which found the Employee was fit for work.
• Where an employee does have an illness or injury, careful consideration must be given to whether reasonable adjustments or support could enable the employee to fulfill their duties - in consultation with an appropriate medical practitioner and the employee. A failure to consider adjustments may expose an employer to claims of unlawful discrimination.⁵
• However, if an employee is unable to perform the inherent requirements of their role due to a disability or ongoing illness (which may include excessive absenteeism as in this case), an employer may decide to dismiss an employee due to a genuine inability to perform those requirements.
• Failure to comply with absence notification procedures or to provide required documentation may justify disciplinary action. Such failures can be treated as breaches of reasonable and lawful directions and may warrant formal warnings, or even dismissal depending on the circumstances.
• It is important for employers to distinguish between general absenteeism and situations involving clear misconduct, such as fraud or dishonesty. Whilst absenteeism, such as repeated or excessive absences, may require performance management as per this decision, a deliberate act of fraud or dishonesty, such as providing false medical certificates or knowingly deceiving the employer about the reason for an absence, can constitute serious misconduct and may justify summary dismissal.⁶

Guide for an initial conversation with an absent employee

Often, simply acknowledging the issue and offering assistance to an employee can prompt improvement, or prompt an employee to consider leaving on their own accord.

To facilitate an initial conversation with an employee having absenteeism issues, we have developed a general guideline to follow. Note that it is important to review any policies/procedures/industrial instruments that may apply prior to meeting with an employee to ensure compliance where necessary.

1. Thank the employee for attending the meeting. Note the pattern of extensive sick leave over the timeframe (provide details of dates/times/patterns) and express a genuine intention to offer support.
2. Invite the employee to share what has been happening for them recently that may have contributed to the absenteeism, both personally and professionally.
3. Discuss any noticeable patterns, such as absences occurring on specific days (e.g. Fridays), and ask whether there is a particular reason behind this.
4. Explore any work-related concerns the employee may have that could be contributing to their absences or affecting their wellbeing.
5. Ask about the impact of their health on their ability to perform day-to-day duties. Clarify whether there are any performance or safety concerns that need to be addressed.
6. Offer support and where appropriate, consider adjustments that may assist the employee in managing their health while remaining engaged at work. This may include flexible hours, modified duties, or alternative working arrangements. It may also be appropriate to inform the employee of any employee assistance service the employer offers.
7. Remind the employee of any particular procedures to follow in notifying of an absence – who to call and by when, when a medical certificate is required.
8. Arrange a follow up meeting, e.g. in one month, to review progress, reassess support needs, and maintain open communication.

Where absenteeism persists, employers may need to:

• request a medical certificate or statutory declaration for each absence (a reasonable a lawful direction);
• seek further medical information (e.g. from the employee’s GP, or even an independent specialist) regarding capacity for work;
• consider reasonable adjustments or alternative arrangements (e.g. part time hours, flexible hours or casual employment); and
• provide a written warning.

¹ Anthony Clark v Woolworths Group Limited [2025] FWC 2226.
² Fair Work Act 2009 (Cth) section 352 and Fair Work Regulations 2009 (Cth) reg 3.01.
³ Fair Work Regulations 2009 (Cth) reg 3.01.
⁴ Fair Work Act 2009 (Cth) section 117.
⁵ This could be made under the Fair Work Act 2009 (Cth) or various other anti-discrimination laws.
⁶ Mitchell Fuller v Madison Branson Lawyers Pty Ltd [2025] FWC 784.