92 Absences and Counting: What Clark v Woolworths Means for Managing Long-Term Absenteeism

Can you dismiss an employee for too many sick days?

Yes, according to a Fair Work Commission full bench decision handed down this week. In Clark v Woolworths Group Limited trading as Primary Connect [2026] FWCFB 187, the Commission confirmed that the sheer volume of an employee’s absences can be enough to justify dismissal, even where some of those absences are backed by genuine, sympathetic reasons.

It is a decision every SME owner managing chronic absenteeism should read. Not because it hands employers a blank cheque, but because it draws a clear line between sympathy for someone’s circumstances and whether the business can actually run with them absent that often.

What happened in the Woolworths case?

A long-serving Woolworths warehouse storeman was dismissed in April last year for failing to meet the inherent requirements of his role. He had been absent 92 times in the 12 months leading up to his termination. The employer also pointed to his persistent failure to give notice of his absences or provide evidence to support them.

The employee argued his absences were due to difficult personal circumstances, involving his own health and the health of his son. He had 20 years of tenure and the Commission accepted his failure to follow directions was not malicious.

At first instance, Deputy President Alan Colman found the employer had valid reasons to dismiss. Despite the tenure, the hardship, and the lack of malice, he found the dismissal was not harsh.

Why did the full bench uphold the dismissal on appeal?

The employee appealed, arguing the Deputy President had blurred the line between the conduct itself and the circumstances that might explain or mitigate it. He argued the reasons behind his absences should have factored into whether there was a valid reason for dismissal at all, not just whether the outcome was harsh.

The full bench, comprising Vice President Mark Gibian, Deputy President Andrew Bell and Commissioner Oanh Thi Tran, disagreed. It held that the Deputy President was right to treat the personal circumstances as relevant to harshness, not to validity. In other words, a business can have a valid reason to dismiss based on absence numbers alone. What happens next, whether dismissal is a fair and proportionate response, is a separate question.

The bench also noted the Deputy President had weighed up that a large organisation like Woolworths might be better placed than a smaller business to absorb an employee’s absences. Even so, it found no error in his conclusion that the sheer number of absences, combined with a pattern of missing notice requirements, supported dismissal.

The Commission was not persuaded the decision was unreasonable, plainly unjust, or outside the range of reasonable outcomes, and dismissed the appeal.

What does this mean for SME employers managing absenteeism?

This decision will be a relief for business owners who have felt stuck between compassion and commercial reality. It confirms three things worth holding onto.

1. Volume of absences can be a valid reason on its own

You do not need to prove misconduct or dishonesty to build a valid reason for dismissal. A pattern of frequent, disruptive absences, properly documented, can stand on its own two feet.

2. Sympathy does not cancel out business impact

Genuine hardship does not automatically make a dismissal unfair. It gets weighed as part of the harshness test, alongside tenure, conduct, and the practical impact on the business. It is a factor, not a trump card.

3. Process still carries real weight

This case turned on absence numbers and a documented pattern of non-compliance with notice and evidence requirements. If you want the same protection, you need the same paper trail: clear absence policies, consistent enforcement, and a record showing the employee knew what was expected of them.

One founder we worked with was managing an employee whose absences were creeping past 40 a year, no formal pattern of documentation, no clear absence policy, just a gut feeling something had to change. We helped them build a proper attendance management process, tied to clear expectations and consistent follow-up, before any conversation about exit. That paper trail is what protects a business when a decision like this one gets tested.

What should you do if an employee’s absences are affecting your business?

• Track the pattern properly. Dates, frequency, notice given (or not), and evidence provided (or not).
• Have a clear, consistently applied absence and evidence policy, and make sure staff know what it requires.
• Address issues as they arise. Don’t let a pattern run for a year before having the conversation.
• Separate compassion from capability. You can support someone’s circumstances and still need to make a decision about whether the role is sustainable.
• Get advice before you act. The line between a valid dismissal and an unfair one sits in the detail, and that detail is where businesses get caught out.

Frequently Asked Questions

Can I dismiss an employee for excessive sick leave in Australia?

Yes, if the number and pattern of absences genuinely affects the business and is properly documented. It is not about punishing illness. It is about whether the role can function with that level of unplanned absence.

Does an employee’s health condition protect them from dismissal?

Not automatically. Health circumstances are weighed as part of the overall fairness of the dismissal, but they do not override the business’s need to have someone reliably at work. General protections and discrimination laws still apply, so get advice before acting.

What is the difference between a valid reason and a harsh dismissal?

A valid reason is about whether the conduct or capacity issue justifies dismissal in principle. Harshness is about whether dismissal was a fair and proportionate response given the individual’s circumstances. Clark v Woolworths confirms these are assessed separately.

How many absences is too many before I can act?

There is no magic number. It depends on the role, the pattern, the impact on the business, and whether proper process has been followed. This case involved 92 absences in 12 months, which is an extreme example, but the principle applies at smaller scale too.

Managing absenteeism without the guesswork

Chronic absenteeism is one of the hardest calls a business owner has to make. You want to support your people, but you also need the business to run. HR Gurus helps SMEs build absence management processes that are fair, documented, and built to hold up if they are ever tested.

If you are managing a pattern of absences and are not sure where you stand, let’s cut through the BS and get you a clear, practical plan.

Case reference: Clark v Woolworths Group Limited trading as Primary Connect [2026] FWCFB 187 (22 July 2026)