By The Fair Work Commission has found SRG Global Assets Pty Ltd unfairly dismissed a radiography and non-destructive testing technician after a hip replacement, rejecting the employer’s reliance on a three-month sick leave rule as justification. Deputy President Lake ruled the dismissal was harsh and unreasonable, according to OnNotice, which reported the decision on 1 November 2026.
The technician began with SRG Global on 1 March 2018 and had worked in the business for more than a decade in total, because an earlier employer, ALS, was acquired by SRG Global. The employee had been on medical leave since January 2024. SRG Global dismissed the technician after its human resources team advised that an employee who had taken more than three months of leave could be terminated.
Deputy President Lake said section 352 of the Fair Work Act “only defines a ‘temporary absence’ for illness or injury for the purposes of s 352 of the Act. That does not mean that all bets are off once the three-month period has been reached.” The Commission has called for evidence before deciding compensation, with remedy still to be determined.
What section 352 actually protects
Section 352 of the Fair Work Act 2009 (Cth) protects employees from dismissal because of a temporary absence from work due to illness or injury. The provision defines a temporary absence as one of three months or less, or a longer period where the employee is on paid sick leave or has provided medical evidence and is receiving workers compensation.
The key finding in the SRG Global case is that the three-month definition does not create a standalone right to dismiss. The Commission distinguished between what section 352 prohibits and what constitutes a valid reason for dismissal under section 387. An employer cannot treat the expiry of three months as an automatic trigger for termination. Capacity must be assessed individually, with current medical evidence and consultation.
Why blanket sick leave policies fail
Many Australian employers operate under the mistaken belief that a set period of absence, often three months, provides a lawful basis for dismissal. The SRG Global decision reinforces that this approach is unsafe. A valid reason for dismissal based on capacity requires evidence that the employee cannot perform the inherent requirements of the role, not simply that time has passed.
The Commission’s reasoning points to procedural fairness defects. An employer that dismisses after a fixed period, without seeking updated medical evidence or discussing return-to-work options, is unlikely to satisfy the section 387 criteria. Those criteria include whether the employee was notified of the reason, given an opportunity to respond, and whether the employer considered alternatives to dismissal.
For HR teams, the practical steps are clear. Before any dismissal for medical incapacity, obtain current medical evidence about the employee’s condition and prognosis. Consult the employee about that evidence. Consider reasonable adjustments, including modified duties, reduced hours or a staged return. Document each step. A policy that says termination follows automatically after a set period of absence will be difficult to defend.
What this means for Australian employers
The decision has implications beyond the specific facts. Employers with enterprise agreements or HR policies that contain fixed sick leave limits should review them. A clause that purports to authorise dismissal after three months of absence is not, by itself, a valid reason. The Fair Work Commission will look behind the policy to the individual circumstances.
The case also intersects with disability discrimination law. A hip replacement may give rise to a disability under the Disability Discrimination Act 1992 (Cth). Employers have a duty to make reasonable adjustments unless doing so would impose unjustifiable hardship. Dismissing an employee recovering from surgery, without exploring adjustments, may expose an employer to a general protections claim involving discrimination, which carries no minimum employment period and no cap on compensation.
Payroll and HR teams should note the distinction between paid personal leave and unpaid absence. An employee who has exhausted paid leave may still be protected from dismissal while recovering. The Fair Work Act does not require an employee to be on paid leave for the temporary absence protection to apply, provided the absence is supported by medical evidence.
Practical steps for HR and payroll teams
The following table sets out the key differences between a defensible capacity-based dismissal and the approach rejected in the SRG Global case.
| Factor | Defensible approach | SRG Global approach |
|---|---|---|
| Medical evidence | Current, specific to the role | Not sought before dismissal |
| Consultation | Employee given opportunity to respond | HR advised termination after three months |
| Alternatives | Adjustments and return-to-work considered | Not considered |
| Reason for dismissal | Inability to perform inherent requirements | Length of absence alone |
For employees, the decision confirms that a three-month absence does not extinguish unfair dismissal protections. Employees facing dismissal after surgery should provide updated medical evidence, request reasonable adjustments in writing, and respond to any show-cause notice. The Fair Work Commission will examine whether the employer acted on evidence or on assumption.
The remedy in the SRG Global case is still to be determined. Deputy President Lake has called for evidence before deciding compensation. The outcome will be watched closely by employer groups and unions, because it may signal how the Commission approaches compensation in cases where a blanket sick leave policy has been applied without procedural fairness.
Sources: onnotice.com.au
Photo: Courtroom One Gavel - Flickr - Joe Gratz by Joe Gratz, CC0
