Teacher legally fired after 3 months of being ‘absent from duty’

The Fair Work Commission has dismissed an unfair dismissal application brought by a teacher who was dismissed after months of no-shows.

An education and learning support officer was dismissed after taking a period of absence past his approved absence from 31 March 2025 to 23 May 2025.

In the lead-up to this leave, the worker was diagnosed with a medical condition, and the worker submitted a WorkCover claim on about 14 March 2025, which was rejected on 11 April 2025 by a claims agent.

“I am satisfied that the applicant did not apply for leave on about 23 May 2025 as he claims … I consider that the absence of a record of such application supports a finding that no such application was made,” deputy president Kamal Farouque said.

The school principal said in a preliminary view letter on 20 October 2025: “You have been absent from duty since 23 May 2025. Your leave has not been authorised, and you have not made any application for leave to cover your absence. This means that you have been absent without leave since 23 May 2025.”

Despite his employer’s submissions that his dismissal was a result of his three months of unapproved absence, the teacher asserted that he was “terminated on the employer’s initiative” based on a letter from the school principal on 19 November 2025.

“As of 23 August 2025, you had been absent from duty without approved leave for a period of three months. Your employment therefore ceased effective from 23 August 2025 by operation of section 2.4.34 of the Education and Training Reform Act 2006 (Vic) (ETR Act). It is important to note that this is not an action taken by the department to terminate your employment, but rather a cessation of your employment that occurs by operation of the law,” the 19 November letter said.

Under the ETR Act, a teacher who is absent from duty for a period of three months ceases to be an employee in the teaching service.

On this basis, the deputy president accepted the respondent’s assertion that the teacher’s employment ceased by operation of law on 23 August, three months after the end of his approved absence.

Upon consideration of the evidence, the deputy president dismissed the teacher’s application on the basis that he was absent from duty for three months, ceasing his employment by operation of law.

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Carlos Tse

Carlos Tse is a graduate journalist writing for Accountants Daily, HR Leader, Lawyers Weekly.