The decision was made in December, but waiting until January nearly proved fatal in court
A company fired an underperforming employee in January 2025. Problem was, they had decided to do it weeks earlier but waited to avoid ruining her Christmas.
The timing nearly destroyed Roadworx Surfacing Pty Ltd in court. On January 15, 2025, WHS and QA Compliance Manager Melissa Boyd emailed CEO Steven Gillies saying she may seek workers compensation and took sick leave. The next evening, Gillies sent Boyd a termination letter with four weeks pay in lieu of notice.
Boyd sued for adverse action, claiming retaliation for the compensation proposal and sick leave. Under section 361 of the Fair Work Act, once an employee shows they exercised a workplace right and got terminated, the law assumes the employer did it because of that right. The employer must prove otherwise.
The case landed before Judge Zipser at the Federal Circuit and Family Court in Parramatta in October 2025. Boyd represented herself. On February 4, 2026, the court threw out her claim.
What saved Roadworx was evidence that the termination decision happened in December 2024, before Boyd mentioned workers compensation or took leave. Gillies testified he had decided to fire Boyd for poor performance but deliberately waited. The judgment quotes his affidavit: "I made the decision to terminate Mrs Boyd's employment in or around December 2024 on the basis of poor performance. However, given the upcoming Christmas holidays, I...
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