Reay v Fuel and Gas Haulage Pty Ltd

Reay (the applicant) brought proceedings against Fuel and Gas Haulage Pty Ltd (the respondent) alleging a contravention of the general protections provisions of the *Fair Work Act 2009* (Cth). The dispute concerned the termination of the applicant's employment during his probationary period. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the respondent had taken adverse action against the applicant for a prohibited reason, specifically because of the applicant's disability. This involved considering whether the applicant's temporary absence from work due to illness or injury, supported by bare medical certificates, constituted a "disability" for the purposes of the Act. The court also had to assess whether the termination was genuinely for performance and conduct reasons, consistent with the purpose of a probationary period, or whether these reasons were a pretext for adverse action.

Judge Lucev found that the applicant's temporary absences, while supported by medical certificates, did not establish a "disability" as contemplated by the *Fair Work Act 2009* (Cth). The court reasoned that the certificates provided were insufficient to demonstrate a condition that would qualify as a disability under the Act. Furthermore, the court accepted that the respondent had terminated the applicant's employment due to genuine concerns about his performance and conduct during the probationary period, which the court viewed as a legitimate exercise of its rights as an employer. The purpose of a probationary period, the court noted, is to assess an employee's suitability for ongoing employment, and the respondent's actions were consistent with this purpose.

The court ordered that the applicant's application be dismissed.