The owner of a heating business in the Australian Capital Territory with four employees had arranged to meet his office assistant on Wednesday 22 April 2026 to discuss his role and the next steps in his employment. At 9.12pm the night before, the owner emailed the worker a termination letter instead. The Fair Work Commission has found the dismissal unjust and ordered P.A.P. Heating Solutions Pty Ltd to pay $322.56 gross in compensation, equal to one day’s pay including superannuation.
Commissioner McKinnon found the business had valid reasons to dismiss the worker. The award was small because, in the Commissioner’s assessment, the most likely outcome of the meeting would have been dismissal one day later.
A warning that never mentioned dismissal
Because the business is a small business employer, one of the questions under s.385 of the Fair Work Act 2009 was whether the dismissal complied with the Small Business Fair Dismissal Code. The Code sets out the steps a small business must follow before dismissing someone, and a dismissal consistent with it is not an unfair dismissal under s.385.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The worker received a written performance warning by email on 29 March 2026. It listed concerns about attention to detail, following instructions, reliability, phone use, lateness, and “communication and honesty”. It said: “If things don’t improve, this will lead to further action.” The Commissioner found the warning did not tell the worker he “was at risk of being dismissed if there was no improvement”, so the dismissal was not consistent with the Code.
Praise by text, then a breakdown
The worker was employed as an Office Assistant/General Hand from 4 November 2024. The owner mostly worked remotely and kept in regular contact with him by text message. For much of 2025 those messages carried strong praise, including “You are killing it mate”. On 19 August 2025 the worker received a pay rise with the message “Thanks for stepping up”.
The relationship had begun to sour by March 2026. On 24 March the owner wrote: “I need you to be on time. It’s been close to 18 months or so.” In a later exchange, the worker said a colleague had been absent for 3.5 hours. The owner checked the security cameras, disputed the account, and then wrote: “You are clearly lying to me. Why?” The Commissioner considered that this exchange was likely the final trigger, leading the owner to doubt whether he could trust the worker.
that the worker had been dishonest about how long his colleague was away from the office, and that CCTV footage contradicted his account.
that the process was unfair because, after the warning, the business had promised a meeting to go through the issues and that meeting never took place. In reply to the warning he had written that the problem was “a scope and leadership problem”, not a performance problem.
that the business had established its reasons, except the allegation of constant phone use. It found that, taken together, these were valid reasons based on conduct, given the worker was employed in a very small business “where trust and cooperation were necessary elements of the employment relationship”. The footage was never put before the Commission, and the Commissioner was not satisfied about the colleague’s exact movements that day, although the worker had walked back his claims when challenged. The Commissioner found the worker’s messages showed he had been late on 14 days in about 18 months, but would “not describe this pattern of behaviour as excessive”.
On the process, the Commissioner agreed with the worker. There was “really no explanation for this deviation from the agreed process” other than the owner deciding not to wait once he had made up his mind. The Commissioner said: “Having offered a meeting to discuss the matter, it was incumbent on the business to follow through”. The business should also have let the worker “know that dismissal was under consideration before it was put into effect”.
Why compensation came to one day’s pay
Reinstatement was not sought, and the worker found other work after being unemployed for about 7 weeks. Over the two weeks and one day after his dismissal, he would have earned about $3168 plus 12% superannuation, a total of $3548.16. He was paid $2880 in lieu of notice (wages paid instead of working out the notice period) and was entitled to $345.60 in superannuation, a total of $3225.60. The difference is $322.56. The Commissioner made no reduction for misconduct or contingencies.
At a glance
- Parties: An office assistant v P.A.P. Heating Solutions Pty Ltd
- Citation: [2026] FWC 4135, Commissioner McKinnon, 23 October 2026
- Section: Fair Work Act 2009, ss.385, 392; Small Business Fair Dismissal Code
- Outcome: Dismissal unjust; $322.56 gross compensation ordered
- Who it affects: Small business employers that issue warnings and dismiss staff
The Commissioner also noted that the parties had no written contract and found that nothing turned on it. Whether the payment in lieu of notice met the requirements of s.117 of the Act was “a separate matter for the courts”.
The refusal is the rule, not the exception. OnNotice examined every late unfair dismissal claim finally decided in published decisions this year: 3 of 38 won a further period, a grant rate of 7.9 percent, and two of the three were one day late.
Source: [2026] FWC 4135
General information only. OnNotice reports developments in Australian industrial relations, human resources and workplace law. This article is for education purposes only and is not intended to form professional advice. Always confirm against the primary source and seek specific advice relating to your circumstances.