The supervisor did what most organisations would expect. Faced with a complex employee matter, he sought advice from Human Resources. Unfortunately, the advice he apparently received contributed to a dismissal the Fair Work Commission subsequently found unfair.

It is a scenario that should concern experienced HR and Employment Relations practitioners, particularly as organisations increasingly turn to artificial intelligence and simplified legal guidance to navigate complex employment matters.

In a recent decision, [2026] FWC 4240 (30 October 2026), Deputy President Nicholas Lake examined the dismissal of an employee who had been absent for almost 21 months because of a serious medical condition.

The Commission found the dismissal harsh and unreasonable, with the Deputy President delivering a particularly pointed observation about the advice provided by the employer's HR team.

The case highlights an important distinction between knowing what legislation says and understanding how it applies to a particular set of circumstances.

The Background: A Prolonged Absence and an Uncertain Return

The employee was a Radiography and Non-Destructive Testing Technician employed by SRG Global Assets Pty Ltd. His duties were physically demanding, involving industrial radiography, handling specialist equipment and working at client sites.

In January 2024, he commenced an extended period of personal leave after developing a serious hip condition.

He subsequently underwent a total hip replacement in June 2025. His recovery was complicated by ongoing pain, restricted mobility and the prospect of further surgery on his other hip.

Throughout his absence, the employee provided medical certificates confirming that he remained unfit for work.

In September 2025, he advised his supervisor that his recovery could take another six to twelve months. The possibility of additional surgery created further uncertainty about his eventual return.

From an operational perspective, the supervisor's concerns were understandable.

The employee had been absent for a considerable period, his role required full medical clearance, and there was no reliable indication of when he might resume his duties.

The supervisor appropriately sought guidance from Human Resources.

However, according to his evidence, HR advised that if an employee had taken more than three months of leave, their employment could be terminated.

On 26 September 2025, SRG issued a termination letter, with employment ending on 31 October 2025.

The problem was that the employer had neither obtained sufficient medical evidence about the employee's future capacity nor undertaken a process that provided a genuine opportunity to respond before the decision was made.

The HR Advice: Technically Relevant, Fundamentally Incomplete

One of the most concerning aspects of the decision was the apparent reliance on the three-month temporary absence provisions under section 352 of the Fair Work Act 2009.

Section 352, together with the Fair Work Regulations, provides protection against dismissal because of a temporary absence due to illness or injury in prescribed circumstances.

However, the expiry of that protection does not automatically provide a valid reason for dismissal.

Deputy President Lake observed:

"It is regrettable that the advice he appears to have received from the Respondent's Human Resources was to terminate the Applicant's employment without much forethought."

He went on to explain:

"That does not mean that all bets are off once the three-month period has been reached."

This is where the distinction between providing information and exercising professional judgement becomes critical.

The supervisor was apparently advised about a statutory threshold without sufficient consideration of the broader legal framework governing dismissal.

The expiry of the temporary absence protection did not remove the employer's obligations under the unfair dismissal provisions, nor did it resolve potential questions concerning disability discrimination or other statutory protections.

The legal question was not simply whether the employee had been absent for more than three months. It was whether SRG had a sound, defensible and well-founded reason to terminate his employment, supported by sufficient evidence and a fair decision-making process.

Medical Incapacity Cannot Be Established by Assumption

The Commission accepted that the employee was medically unfit to perform his duties when dismissed.

However, the medical certificates established periods of incapacity, not permanent incapacity or a sufficiently clear prognosis.

The employer had effectively interpreted uncertainty about the employee's recovery as evidence that he would remain incapable of returning to work.

Deputy President Lake rejected that reasoning.

The Commission considered that an Independent Medical Examination would have been appropriate to establish the employee's likely prognosis, future capacity, potential duties and anticipated return-to-work timeframe.

Importantly, the decision does not suggest that employers must retain employees indefinitely where there is no reasonable prospect of returning to their substantive duties.

Rather, an assessment of medical incapacity requires consideration of both present incapacity and the likely future position, supported by appropriate medical evidence.

There is a substantial difference between an employee being unable to work today and medical evidence establishing that they are unlikely to perform the inherent requirements of their position within a relevant timeframe.

Procedural Fairness: A Decision Made Before the Meeting

The employer's difficulties were compounded by significant procedural deficiencies.

The supervisor acknowledged that the employee had not received a show cause letter, had not been warned that termination was being considered and had not been afforded an opportunity to respond before the decision was made.

Indeed, the decision to terminate employment had already been reached before the termination meeting.

SRG argued that the employee could have raised concerns during the subsequent five-week notice period.

The Commission rejected that proposition.

Procedural fairness requires a meaningful opportunity to respond before a final decision is made. Providing notice of a decision already reached does not satisfy that requirement.

The Commission ultimately found there was no valid reason for dismissal and that the employee had been denied procedural fairness. The appropriate remedy remained to be determined.

The Broader Concern: HR Advice in the Age of AI

Although there was no suggestion in the decision that artificial intelligence had been used, the circumstances raise an increasingly relevant issue for the HR profession.

AI tools can provide remarkably quick summaries of legislation, industrial instruments and employment law principles.

They can also produce responses that appear authoritative while omitting critical qualifications, exceptions or the interaction between different statutory obligations.

A practitioner asking whether an employee can be dismissed after three months of sick leave might receive a response explaining that the specific temporary absence protection can cease to apply after the prescribed period.

That information, considered in isolation, may be legally relevant.

But a technically correct statement about one statutory provision can still produce fundamentally flawed advice when applied without proper consideration of the broader circumstances.

The same risk exists when practitioners rely on simplified guidance, precedent letters or generalised advice without independently examining the evidence and legal framework.

In this case, the supervisor sought HR advice, apparently relied upon it and proceeded with a dismissal that the Commission found unreasonable.

The concern is not simply that the employer misunderstood a statutory provision. It is that the advice apparently failed to identify the need for further medical evidence, consideration of future capacity and procedural fairness before dismissal.

AI may increase the speed with which HR practitioners access information, but it does not remove the responsibility to critically evaluate that information.

Nor should it replace professional judgement in matters involving significant consequences for employees and employers.

Implications for HR and Employment Relations Practitioners

This decision reinforces fundamental obligations when advising on medical incapacity:

• Understand the complete legal framework. The expiry of a particular statutory protection does not resolve the question of whether dismissal is lawful or fair.
• Interrogate the medical evidence. Current incapacity, prognosis, inherent requirements and reasonably available alternatives must be considered before reaching conclusions about ongoing employment.
• Recognise when further assessment is necessary. An Independent Medical Examination may be appropriate where existing medical information does not adequately address future capacity.
• Ensure procedural fairness is substantive. Employees must understand that termination is under consideration and have a genuine opportunity to respond before a final decision.
• Exercise independent professional judgement. Whether advice comes from an AI platform, external guidance or internal HR resources, practitioners remain responsible for identifying its limitations and applying it to the circumstances.

Conclusion: HR Advice Must Go Beyond the Obvious Answer

What distinguishes this decision is not simply that an employee with a lengthy medical absence was unfairly dismissed.

It is that the supervisor sought advice from the function responsible for guiding management through complex employment decisions, yet the advice he apparently received contributed to the very outcome that should have been avoided.

For experienced practitioners, this is a reminder that effective HR advice requires more than identifying a relevant legislative provision or providing a convenient answer to an operational problem.

It requires examining the evidence, understanding the interaction between legal obligations, anticipating procedural risks and sometimes advising management that further steps are necessary before a decision can safely be made.

As artificial intelligence becomes increasingly embedded in HR practice, the distinction between access to legal information and the exercise of informed professional judgement will become even more important.

The real value of an experienced HR practitioner is not simply knowing what the law says. It is understanding what the law requires in the particular circumstances, and ensuring the organisation acts accordingly.

Reference: Fair Work Commission, [2026] FWC 4240, Deputy President Lake, 30 October 2026.

Savvy HR Services

Savvy Human Resources Consulting Services provides independent workplace investigations to a high standard of procedural and substantive fairness, intellectual rigour and sensitivity.

We use our Human Resources Consulting know-how and investigation experience to support clients to deal with informal complaints through to conducting formal site-based investigations. Learn more ...

Savvy’s trauma informed approach to workplace investigation and workplace mediation processes will assist employers to manage the risks of psychosocial hazards that might arise for participants that have experienced trauma.  

Savvy HR is a specialist consultancy with extensive experience conducting workplace investigations of sensitive matters ranging from informal complaints to complex allegations of harassment and bullying that might escalate into WorkCover claims or Fair Work Commission (FWC) matters.

For workplace consulting, employment advice, employment relations support Ballina, Brisbane & Sydney contact Savvy HR.

For Human Resources Consulting Gold Coast Human Resources Ballina Human Resources Sydney contact Savvy HR.

Prohibition on republication: No part of this publication may be copied or reproduced without the written consent of Savvy Human Resources Associates Pty Ltd (SAVVYHR).

Disclaimer: This publication is provided in good faith by way of general guidance only to assist employers and their employees and is for information purposes only. It is not to be construed by the reader as legal advice or as a recommendation to take a particular course of action in the conduct of their business or personal affairs. The Information may be based on data supplied by third parties. We do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future. You should not rely upon the material as a basis for action that may expose you to a legal liability, injury, loss or damage and it is recommended that you obtain your own advice relevant to your particular circumstances. Savvy Human Resources Associates Pty Ltd & SAVVYHR do not accept responsibility for any inaccuracy and is not liable for any loss or damages arising either directly or indirectly as a result of reliance on, use of or inability to use any information provided in this article.