A Full Bench of the Federal Court has confirmed a decision which found that an employee had been dismissed because of unsatisfactory performance and not because she had taken leave.

The employee was dismissed for under performing and failing to attend performance review meetings.  The employee alleged that the reason for the dismissal was because she was on leave, and that she had no opportunity to respond to the dismissal.  The employee’s application was dismissed at first instance.

The Full Bench upheld the primary judge’s decision, finding that it was “abundantly clear” that the employer had not taken advantage of the employee being on leave and that a “temporal connection” between the dismissal and the leave did not mean that there was a “causal connection”.  The Full Bench also noted that even if the employee proved that the decision to terminate was without lawful authority, this would not in itself establish the causal link.

Khiani v Australian Bureau of Statistics [2011] FCAFC 109