Dismissal for Absenteeism despite 22 Years of Service and compassionate reasons for absence

A worker with 22 years of service. Genuine health problems. A son fighting addiction and mental illness. On paper, this looks like a sympathetic case for an unfair dismissal claim. The Fair Work Commission's Full Bench still upheld the dismissal for absenteeism.

AC v Woolworths Group Limited trading as Primary Connect [2026] FWCFB 187 is a useful case study on unfair dismissal for absenteeism, for any employer managing an employee whose absences have become unmanageable, even where those absences are caused by circumstances entirely outside the employee's control. It also confirms how hard it now is to overturn a Fair Work Commission unfair dismissal decision on appeal.

The Background

AC worked as a storeman at a Woolworths distribution centre in Melbourne, from 2002 until his dismissal in April 2025. From 2022 onward, his attendance declined sharply. His son was hospitalised for mental health issues and struggled with drug addiction, increasing AC's caring responsibilities. AC was also diagnosed with interstitial lung disease in 2023 and was later hospitalised twice with pneumonia. A medication prescribed for his lung condition in 2024 caused side effects including unsteadiness, sleeplessness and an inability to drive safely, which kept him away from work even more often.

Woolworths issued AC with written directions in October 2022, May 2023, August 2024 and February 2025, requiring him to give notice of absences and provide supporting evidence such as medical certificates or statutory declarations. The February 2025 direction warned that continued failure to comply could lead to termination.

AC switched medications in early 2025, and his treating doctor certified him fit for work in March 2025. Despite this, further absences and gaps in documentation followed. Woolworths issued a show cause letter in April 2025 and terminated AC’s employment shortly after, citing his failure to meet the inherent requirements of his role.

What the Commission Decided

At first instance, Deputy President Colman found that Woolworths had two valid reasons for dismissal: AC was not meeting the inherent requirements of his job due to the volume of absences, and he had repeatedly failed to follow directions to provide notice and evidence. The Deputy President accepted that AC's non compliance was not deliberate or malicious, but found it was still substantial enough to justify dismissal, particularly given 92 days of absence in the year before termination.

AC appealed on six grounds, arguing among other things that his personal circumstances should have been treated as relevant to whether a valid reason existed at all, not just as a mitigating factor; that he was denied procedural fairness when the Deputy President rejected his explanations using reasoning that was never put to him; and that the overall finding was unreasonable or plainly unjust.

The Full Bench granted permission to appeal, recognising the case raised issues of broader importance. It then dismissed every ground.

Can You Dismiss an Employee for Too Many Sick Days in Australia?

Yes, in certain circumstances. Under the Fair Work Act, an employer can have a valid reason for termination where an employee is not meeting the inherent requirements of their role due to excessive absences, even where those absences relate to illness or caring responsibilities. This case shows the Commission will look at the pattern of absences, whether the employer gave clear written directions and warnings, and whether the employee had a genuine opportunity to improve. A single period of sick leave will not justify dismissal. A sustained, repeated pattern of absence, alongside a documented history of directions and warnings, is a different matter.

Key Takeaways for Employers

A documented pattern of directions carries real weight

Woolworths issued four separate written directions over more than two years before dismissing AC. That paper trail was central to the outcome. The Commission treated the repeated warnings, and AC's continued failure to fully comply with them, as sound evidence of a valid reason for dismissal, separate from the underlying reason for his absences.

Sympathetic circumstances do not automatically prevent a valid dismissal

The Full Bench confirmed there is a meaningful difference between whether a valid reason for dismissal exists and whether personal circumstances should reduce the severity of the employer's response. The Deputy President was entitled to weigh AC's health and caring responsibilities under section 387(h) of the Fair Work Act as a mitigating factor, rather than treating them as removing the valid reason altogether. Genuine hardship matters to the overall fairness assessment, but it does not override an employer's need for reliable attendance.

Fitness to work does not erase a poor attendance record

AC's doctor certified him fit for work in March 2025. The Commission still accepted that ongoing absences after that certification, alongside a lengthy prior pattern, could support a finding that he was not meeting the inherent requirements of his role. A resolved medical condition does not automatically wipe the slate clean if attendance problems persist.

Procedural fairness has a practical, not exhaustive, standard

AC argued he was denied procedural fairness because the Deputy President rejected his explanations using questions that were never put to him directly. The Full Bench disagreed, finding that AC was on notice that his compliance with directions was in dispute, and that decision makers are not required to preview every line of reasoning before delivering a decision. Employers and their advisers should still put key allegations to an employee clearly during any process, but this case shows the threshold for a procedural fairness challenge is a high one.

Appeals against unfair dismissal decisions face a stringent test

Section 400 of the Fair Work Act restricts appeals in unfair dismissal matters to cases involving significant errors of fact or decisions that fall outside the range of reasonable outcomes. The Full Bench acknowledged that "reasonable minds might differ" on AC's case, yet found no appealable error. This reinforces how difficult it is to overturn a first instance unfair dismissal finding, even in a case with strong sympathy factors.

Why This Case Matters

For employers, the decision is a reminder that consistent documentation, clear directions and a genuine consideration of an employee's circumstances can support a lawful dismissal even where the human story behind it is difficult. For employees and their representatives, it highlights how much weight the Commission places on a documented history of non compliance, and how narrow the path to a successful appeal has become.

Investigations and workplace inquiries that generate a clear, contemporaneous record, including dated warnings, meeting notes and responses from the employee, remain one of the strongest tools an employer has if a dismissal decision is ever tested.