Rethinking termination within the minimum employment period

It’s not unusual for businesses to dismiss employees within the minimum employment period to avoid the risk of an unfair dismissal claim. The minimum employment period is the ‘window of opportunity’ to dismiss employees who aren’t a good fit. However, employers should be aware that despite being in the minimum qualifying period for termination, employees have access to other protections. The case of Dabboussy v Australian Federation of Islamic Councils (the Case) serves as an example to all employers that termination decisions cannot be made to prevent an employee from exercising a future workplace right.

In this article, we’ll unpack this case, share why the decision has far-reaching impacts on businesses, and explain the key lessons for employers to take away.

Dabboussy v Australian Federation of Islamic Councils: explaining the case

Mr Dabboussy commenced employment as the Chief Executive Officer (CEO) of the Australian Federation of Islamic Councils (AFIC) on 4  September 2023. On 3 September 2024, he was summarily dismissed following a workplace sexual harassment allegation made against him. An investigation commenced, and on 12 August 2024, Mr Dabboussy raised a grievance, expressing concerns about the fairness and transparency of the investigation process.

On 2 September 2024, AFIC’s Executive Council had an emergency meeting, during which it was noted that the draft findings of the investigation ‘substantiated the allegations on the balance of probabilities.’ However, the meeting minutes didn’t reflect that the draft report had been presented or even made available to the Council members before the meeting. Despite this, the Executive Council unanimously voted to terminate Mr Dabboussy’s employment, effective immediately. A letter of termination was sent to Mr Dabboussy at 4:40 pm on 3 September 2024, just seven hours before he would’ve reached 12 months of continuous employment with the AFIC. Upon completing this period, Mr Dabboussy would’ve been eligible to pursue an unfair dismissal claim under the Fair Work Act 2009 (Cth) (FW Act) (for completeness, AFIC is a small business employer, and so a 12-month minimum employment period applied to Mr Dabboussy).

Mr Dabboussy subsequently applied for an interim order for reinstatement under section 545 of the FW Act. He contended that he had established a prima facie case indicating that his dismissal was executed to obstruct his access to unfair dismissal. He argued that this action was a breach of his general protections under section 340 of the FW Act. The gist of it is that Mr Dabboussy was claiming his termination of employment was strategically timed to deny him the opportunity to seek legal recourse for unfair dismissal and that this was a violation of his workplace rights.

What did the Court decide?

In deciding whether to grant the interim order, the Court had to assess whether Mr Dabboussy had a prima facie case that his dismissal constituted adverse action on the basis that he had a workplace right. The Court determined that there was a prima facie case suggesting that the timing of Mr Dabboussy’s dismissal was intended to deny him the opportunity to lodge an unfair dismissal claim, which was deemed a substantial reason for his employment termination.

The Court inferred from the rushed way the Executive Council convened the emergency meeting – without even receiving the final investigation report – that the meeting was intended to terminate Mr Daboussy’s employment before he was entitled to unfair dismissal protections.

It’s also important to note that the Court referred to a previous decision to highlight that adverse action can even be taken to deny a workplace right that an employee might not yet have. In Qantas Airways Limited v Transport Workers Union of Australia (2023):

“… a person who takes adverse action against another person for a substantial and operative reason of preventing the exercise of a workplace right by the other person contravenes s 340(1)(b), regardless of whether that other person has the relevant workplace right at the time the adverse action is taken.”

Meaning, that the fact Mr Dabboussy didn’t have unfair dismissal protections at the time of his termination doesn’t exclude AFIC from liability under general protections provisions of the FW Act. Put simply, the general protections provisions in the FW Act extend to protect the exercise of future workplace rights, and employers are prohibited from taking adverse action against an employee to prevent the exercise of a future workplace right. That is, AFIC was prohibited from terminating Mr Dabboussy’s employment to prevent his exercise of making a future unfair dismissal claim.

The Court granted interim relief, reinstating Mr. Dabboussy as CEO until further notice. In reaching this decision, the Court considered the financial and personal impacts of his summary dismissal, including the lack of termination pay and the difficulty of finding new employment due to the allegations.

However, given the severity of the allegations against Mr Dabboussy, the Court clarified that AFIC can stand down Mr Dabboussy pending workplace investigation or even allow him to work from home during the interim period.

Note: Mr Dabboussy has only established that he has a prima facie case, the merits of his general protections claim will be considered in another proceeding.

So, how can businesses mitigate legal risks during employee dismissals?

This decision means that employers need to rethink the way they manage employees during the minimum employment period and understand minimum employment period rules. If an employer takes action to prevent an employee from exercising a workplace right, even if the employee hasn’t yet obtained that right, the general protections provisions continue to apply.

To reduce this risk, employers must ensure that decisions to terminate an employee’s employment are based on lawful substantive and operative reasons and ensure that such reasoning is sound, justifiable and doesn’t include a prohibited reason (i.e. to prevent an employee from exercising a future workplace right). Rushed termination decisions that don’t follow proper procedure could undermine an employer’s ability to prove that the decision wasn’t made because of a prohibited reason or impede on an employee’s rights during the minimum qualifying period.

Stay proactive by consistently monitoring employee performance and addressing conduct issues as they arise during the probationary period, rather waiting until the final days of the minimum employment period to act.

How can Citation HR help?

Handling these types of situations sensitively, and professionally, and complying with the law will greatly reduce your risk of an unfair dismissal or general protections claim – and that’s where Citation HR can help. Our workplace relations experts can guide you through even the trickiest of workplace processes from workplace investigations to disciplinary action – and the best part is that this service is included in our monthly, cost-effective subscription, which is designed to protect your business from costly risks.

If you’re a client of Citation HR and this information has raised questions about termination or you have another workplace matter you’d like to discuss, why not put our HR advice to the test? You can arrange a complimentary workplace compliance consultation today.

About our author

Tuvini Jayakody is a Workplace Relations Advisor at Citation HR. She assists clients with a range of employment relations and compliance matters via the HR Advisory Service. She is currently studying for a Bachelor of Commerce and Laws.