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An employer had decided an employee wasn't suited to his role before he took sick leave, the Federal Circuit Court has accepted, ruling that sacking him the day he returned to work wasn't unlawful adverse action.

"Performance-based issues were evident and reported within weeks of [the employee] starting," Judge Anastasis Liveris said, noting he was satisfied the employee was dismissed due to his "broad and multifaceted performance and suitability deficiencies", and not over his temporary absence.

The Aspen Living Villages food and beverage manager was sacked from his role at the Darwin FreeSpirit Resort in October 2023, less than three months after he started.

He subsequently made a general protections claim, arguing the performance-based reasons set out in his termination letter were a "pretext" to dismiss him because he'd taken personal leave, or because he exercised his right not to work while on leave...