Court orders temporary reinstatement of employee

A recent Federal Court case, Dabboussy v Australian Federation of Islamic Councils [2024] FCA 1074, highlights an important risk for employers in our industry when dismissing employees near the end of their probation period. 

Case summary 

The CEO of the Australian Federation of Islamic Councils was dismissed just hours before completing the minimum employment period that would have allowed him to make an unfair dismissal claim. His dismissal followed a sexual harassment investigation, but the final report was received on the same day as the dismissal. The Court found a prima facie case of adverse action, as the timing seemed designed to prevent the employee from exercising his legal rights. 

As a result, the Court temporarily reinstated the employee and prohibited dismissal without Court approval until a final hearing in February 2025. 

What this means for employers 

For employers in the building and construction industry, this case serves as a critical reminder that dismissing an employee near the end of their probation period could still be seen as adverse action under the Fair Work Act 2009 (Cth), especially if it appears designed to avoid an unfair dismissal claim. 

Key points for employers: 

1. Be careful with timing: Dismissing employees close to the probation end date risks claims of adverse action. Avoid dismissals that could be perceived as aimed at preventing legal claims. 

1. Document issues early: Ensure you address performance or conduct concerns well before the probation period ends, so dismissals are clearly justified. 

1. Risk of reinstatement: If a dismissal is challenged, the Court may order temporary reinstatement, leading to operational disruptions and financial costs. 

1. Adverse action: Employers must avoid dismissals that could be seen as interfering with an employee’s right to bring a claim, even during probation. 

If you have any questions about this article, please do not hesitate to contact our Advisory Team on 6175 5900 or by email legal@mba.org.au.