A recruiter gets let go. Two days before his probation ends. Five weeks after lodging a bullying complaint.
From the outside, that looks bad. Really bad.
It rarely is as bad as it looks. But you have to be able to prove it.
A recent Federal Circuit and Family Court decision shows exactly how that plays out in practice, and what separates employers who survive a general protections claim from those who do not.
What happened in Treffry v BlueScope Steel
William Treffry joined BlueScope Steel on 3 June 2024 as a Talent Acquisition Partner, on a six-month probation. By September he had lodged a bullying complaint, claiming unfair standards, baseless criticism and a refusal to act in good faith.
His employment ended on 22 November 2024. Two days before his probation was due to expire.
He went to court seeking $50,000, arguing the timing was not a coincidence. The gap between complaint and dismissal, he said, was proof of adverse action.
The application was dismissed.
The bit every employer needs to understand
Under the Fair Work Act, general protections carry a reverse onus. Once a worker shows they used a workplace right, such as lodging a bullying complaint, the burden flips. The employer must prove that the exercise of that right was not a substantial and operative reason for what happened next.
Read that again. You do not just have to argue your case. You have to disprove theirs.
BlueScope met that burden. Here is how.
How BlueScope discharged the reverse onus
The case turned on the evidence of the employee’s direct manager. The court described her as a considered and credible witness.
She gave a clear account of performance problems that started within weeks of Treffry joining:
- Missed deadlines on Authority to Hire requests
- An HR manager asking that he be removed from an urgent role because he was too slow
- Errors in job advertisements
- Complaints from across the business
- Formal performance meetings held in June, August and September 2024
Then came the key piece of evidence.
The manager testified that she made the decision to terminate on 25 September 2024. The bullying complaint was not lodged until 30 September 2024. Five days later.
The court accepted that she was the sole decision-maker and that she reached her decision independently, before any complaint existed. That sequence sank the claim.
Credibility matters too
The court viewed the employee’s own evidence with considerable scepticism. A prior Fair Work Commission finding showed he had lied to a former employer. He also admitted to embellishing his CV to cover a gap in his employment history.
This did not automatically win the case for BlueScope. But it reinforced why the manager’s clear, dated, well-documented account carried so much weight.
Where BlueScope did not come out clean
The court noted that asking an employee to provide evidence of a sibling’s death to support compassionate leave was, at its highest, insensitive.
It did not form part of any adverse finding, and the court was clear it played no part in the dismissal decision. But it is worth noting: you can be legally in the right and still handle things poorly.
How you manage sensitive requests reflects on your culture, not just your compliance. Get both right.
What this means for how you run your business
Here is the practical reality. If an employee lodges a protected complaint, the timing alone will not save you, and it will not sink you either. What matters is whether you can show your decision was already in motion, independently, before the complaint arrived.
That requires three things to be in place before any complaint is ever made:
- Real-time documentation Record performance concerns as they happen, not after the fact. Dates matter. A note written six weeks later is not the same as one written the day an issue occurred.
- Minuted check-ins Run regular performance conversations and take brief notes. You do not need a formal report every time. You do need a record that shows a pattern, not a panic.
- A clear decision-maker Know who makes the call to terminate, and make sure that person can articulate, with dated evidence, why and when they reached that view. Decisions made by committee or passed around without ownership are harder to defend.
A note on probation
Probation is not a free pass. Under the Fair Work Act, general protections apply from day one. An employee on probation can still lodge a general protections claim if they believe a protected attribute or activity drove the decision.
Probation gives you more flexibility to exit someone who is not the right fit. It does not remove your obligation to act lawfully. Treat it as a structured evaluation period with regular feedback, not a watching brief that ends in a surprise exit.
When a complaint comes in while a performance process is already running
This is the scenario most businesses are unprepared for. A complaint arrives, and now you have two things happening at once. You have to handle both correctly.
Do not let the complaint derail an honest performance process. Do not use a performance process as cover to shut down a complaint. Both things can be genuine and be handled in parallel, as long as they are documented separately, managed transparently, and decided by the right people.
If you are not sure how to navigate that, you need advice before you act, not after.
The bottom line
BlueScope won this case because their manager could point to a clear, credible and dated paper trail. The decision to terminate came before the complaint. The court believed her because the evidence backed her up.
Your timeline is either your shield or your weak point.
If you cannot show when the concern was raised, who raised it and what happened next, you are relying on credibility alone. That is not a strategy.
Frequently Asked Questions
Does probation protect me from unfair dismissal or general protections claims?
Probation gives you more flexibility to exit someone who is not working out, but it does not protect you from a general protections claim. Those rights apply from day one of employment. If an employee believes a protected activity, like lodging a complaint, drove the decision to let them go, they can still take you to court during probation. The key is being able to show the decision was based on legitimate performance grounds.
An employee just lodged a complaint and I was already planning to let them go. What do I do?
Do not stop the performance process, but do not rush it either. The two things can run in parallel as long as they are documented separately, managed transparently, and decided by the right people. What you cannot do is use the performance process as cover to shut down the complaint, or let the complaint derail a legitimate decision. Get advice before you act, because the sequence of events will matter enormously if this ends up in court.
What does “reverse onus” mean, and why should I care?
In a general protections claim, once an employee shows they exercised a workplace right, the burden flips to you. You have to prove that right was not a reason for what happened next. You do not just argue your case. You have to disprove theirs. The only way to do that convincingly is with dated, specific documentation that existed before the complaint was ever made.
How detailed does my documentation actually need to be?
It does not need to be a formal report every time, but it does need to be real and dated. A brief note recorded the day an issue occurred is worth far more than a detailed account written six weeks later. What you are building is a paper trail that shows a clear pattern, not a story you put together after the fact. If you cannot point to when a concern was first raised, who raised it, and what happened next, you are relying on credibility alone. That is not enough.
Need help getting your HR processes in order?
Cases like this are a good reminder that good intentions are not enough. Documentation, process and clear accountability are what actually protect you when things are tested.
The HR Gurus Membership Club gives you access to practical HR support, templates and expert advice so you are not scrambling when something goes sideways.
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Note: This article is general information only and does not constitute legal advice. For advice specific to your situation, get in touch with HR Gurus.
Case reference: Treffry v Bluescope Steel Ltd [2026] FedCFamC2G 1071 (12 June 2026), Federal Circuit and Family Court of Australia
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Director and founder of HR Gurus, Emily is a talented and award winning HR professional with over 15 years experience and a proven track record in all areas of strategic and operational Human Resource Management.
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