By Gaby Grammeno Contributor

The Fair Work Commission has rejected a worker’s application for unfair dismissal, finding his excuses for failing to comply with directions unacceptable. 

The worker had been employed for over 20 years as a storeman at a warehouse of a major supermarket. 

From 2022, he’d been absent from work many times due to health problems and his son’s drug addiction.  

In October 2022, May 2023 and again in August 2024 he was given directions in writing to provide notice of and evidence for his absences, and was told that failure to comply could result in disciplinary action.  

He failed to comply with these directions on numerous occasions, and in February 2025, he was warned that further non-compliance could result in his dismissal.  

The pattern of non-compliance persisted, however, even after March 2025 when he was asked to provide medical evidence from his doctor, who confirmed he was fit for duty. 

On 7 April 2025, the employer told him he was not meeting the inherent requirements of his job, despite being certified fit for work. In mid-April he was dismissed for that reason. 

 

In the Commission 

The worker claimed there was no valid reason for his dismissal because he’d given over 20 years of loyal service, and had suffered significant medical and personal problems that affected his attendance and his ability to communicate with the company. 

He gave evidence that a key reason for his many absences was his son’s poor mental health. The son had been hospitalised during the COVID-19 pandemic and diagnosed with anxiety and depression, and was later affected by an ice addiction. 

The worker had enrolled his son in a rehabilitation program involving late afternoon gym sessions. He’d received his team leader’s approval to leave work an hour early on some days to take his son to the sessions. 

He’d also been ill himself, having been diagnosed in 2023 with interstitial lung disease. He’d been ill for some months with pneumonia, developed a dependency on a drug prescribed for his condition and experienced adverse side effects from it. His condition improved after a change of drug, but his unauthorised absences continued. 

He said 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’.  

He said his medication sometimes made it difficult to keep on top of these things, and that no-one had ever told him he needed to submit a declaration or a certificate for part-day absences when he went home sick. 

The employer contended that the worker’s attendance did not improve even after he was certified as fit for work, and that persistent absenteeism and failure to follow repeated lawful and reasonable directions to notify it of absences and provide satisfactory supporting evidence for them amounted to a failure to meet the inherent requirements of the position, and a valid reason to terminate his employment. 

The employer further submitted that it had gone to great lengths to engage with the worker about his absenteeism and failure to follow directions, raising the possibility of part-time work and reminding him of the employee support program. It had afforded him procedural fairness, but that even since the explicit warning, the problem had persisted.  

Deputy President Alan Colman observed that though the employer had been lenient with the worker for several years, ‘that did not preclude it from deciding to adopt a stricter approach’. 

This was ‘not a case where the employer turned a blind eye to a concern and then demanded compliance overnight. [The worker] 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.’ 

It was also not the case that the worker always defied the directions and never complied with them.  

However, ‘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’. 

This failure to follow directions was a valid reason for his dismissal, as was the fact that he was not meeting the inherent requirement of a fulltime storeman – the requirement to attend work. In the year to March 2025 he’d been absent for 92 days. 

Deputy President Colman was not convinced by the worker’s reasons for his many failures to obtain evidence for his absences. 

While accepting that his refusal to follow directions was not malicious and that he’d been contending with genuine hardship, the Deputy President did not accept that the worker had been unable to comply with the directions or that it was not reasonably practicable for him to do so. 

The DP questioned why the worker did not go to a different doctor for a certificate when his own physician was busy, or get one from a telehealth clinic. 

‘Why, if his pharmacist was rude or too busy to witness a statutory declaration, could he not go to another pharmacy?’ 

Deputy President Colman considered that the worker ‘had already been given a second chance, and further chances’, and concluded that his dismissal was not harsh, unjust or unreasonable, therefore not unfair. 

The application was dismissed. 

 

What it means for employers 

Dismissal may not be a disproportionate response in the case of a worker’s persistent poor attendance and failure to follow directions to notify the employer of absences and provide evidence to support them. 

 

Read the decision 

Anthony Clark v Woolworths Group Limited [2025] FWC 2226 (30 July 2025)