Attendance at work an inherent requirement of the job

In a recent decision, the Fair Work Commission (FWC), has found that an employee’s consistent attendance at work constitutes an inherent requirement of the job, such that an employer is not required to continue an employee’s employment where their absenteeism becomes unsustainable.

Background

The Applicant was employed  as a full-time storeman in a warehouse for an extended period of time, and had been employed by Woolworths at the warehouse since 2021.

Between 2022 and April 2025, the Applicant was frequently absent from work,  primarily due to ill health and impacts from prescribed medication, as well as due to caring responsibilities. On many occasions, the Applicant failed to provide appropriate notification, or evidence in support, of his absences, despite directions from Woolworths that he must do so.

This resulted in the Applicant being warned that a continued failure to provide notice and substantiation of absences could result in his dismissal. As part of this warning, Woolworths expressly directed the Applicant to demonstrate an immediate and sustained improvement in his attendance at work.

Despite this, the Applicant’s absences continued, and he continued to fail to provide adequate notice and evidence of his absences. The Applicant’s absenteeism was causing significant staffing issues for Woolworths, particularly due to the lack of adequate notification of his absences.

In April 2025, Woolworths initiated a show cause process, putting the Applicant on notice that it was considering terminating his employment on the basis that he was unable to meet the inherent requirements of his job on account of his continued absenteeism. The Applicant responded to the effect that his need for extended periods of leave would reduce because his condition was being effectively treated, and requested that he be provided one more opportunity to return to work and prove himself.

Despite this, Woolworths terminated his employment on the basis that he was not meeting the inherent requirements of his job. In the approximately 12 months prior to the dismissal, the Applicant had been absent from work on 92 occasions.

The unfair dismissal claim

The Applicant made an unfair dismissal claim, asserting that he could complete the inherent requirements of his job he had provided certification from his doctor confirming this. Additionally, he contended that, at the time of his dismissal, his attendance had improved as he was no longer suffering from the side effects brought on by the medication he had been prescribed. He also referred to his “long service and mitigating personal circumstances” as extenuating factors.

In contrast, Woolworths argued that the dismissal was valid because the Applicant’s “persistent absenteeism and failure to follow repeated lawful and reasonable directions to notify it of absences and provide satisfactory supporting evidence for them” constituted a failure to meet the inherent requirements of his role. In addition, Woolworths asserted that the Applicant’s absenteeism and compliance had not improved and that his explanations for his conduct were “inadequate”, highlighting the great lengths to which they had gone to engage with the Applicant about his absenteeism and to offer support.

The FWC ultimately dismissed the claim, finding that Woolworths had two valid reasons for dismissing the Applicant.

Firstly, while the Applicant was certified as fit to work, he was not meeting the inherent requirements of his full-time role because of his continued absences. In this regard, the FWC found that attendance at work was an inherent requirement of the role, in circumstances where the Applicant had exhausted sick leave certificate, and his absences were continuing.

Additionally, the Applicant’s repeated failure to follow directions surrounding providing notice of absences and supporting documentation (e.g. medical certificates, statutory declarations) constituted a further valid reason for his dismissal. While the extent of the Applicant’s failure to complete these actions was in dispute, it was not in dispute that he had failed to comply with directions on many occasions.

Key Takeaways for Employers

This case demonstrates that there are limits to the extent to which an employer needs to sustain an employee’s position where their continued absenteeism undermines their ability to fulfil the requirements of their role.

It also reinforces there is a valid basis for an employer to:

• require an employee to demonstrate sustained attendance; and
• issue directions concerning notification of and substantiation for absences.

Importantly, it is critical that these matters are managed delicately, with compassion and that a fair process is adopted prior to moving to dismissal.

Employers must also bear in mind that in addition to a risk of an unfair dismissal claim, employees could pursue a general protections claim on the basis that their employer took adverse action due to their exercise of workplace rights (taking of personal leave), because they are on a temporary absence for illness/injury and/or due to a disability. These matters must be borne in mind when determining the response to continued absenteeism.

HR Legal can assist in providing practical advice on navigating absenteeism and fitness for work issues. Contact us today.

Case: Anthony Clark v Woolworths Group Limited [2025] FWC 2226

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.