A casual cleaner from Port Pirie first heard her employer had concerns about her performance after she had been asked to hand her keys to a co-worker and a newly hired staff member was already working her shifts. She was given no further shifts. About five weeks later she was told she was “no longer in the system”.
Commissioner Rogers found the dismissal unfair. There was no valid reason for it, the worker was not notified of the reason or given an opportunity to respond, and she was not warned or given a real chance to improve. The Commissioner ordered HACCP International Property Services Pty Ltd to pay her $7,969, less tax, after applying the compensation cap of 26 weeks’ pay. From August 2022 until her dismissal, her work for the company involved cleaning public toilets at a number of sites during one week of each fortnight.
At a glance
- Parties: A casual cleaner v HACCP International Property Services Pty Ltd
- Citation: [2026] FWC 4048, Commissioner Rogers, 23 October 2026
- Section: Fair Work Act 2009, ss.385, 387, 390, 392 and 394
- Outcome: Dismissal unfair. Compensation of $7,969, less tax
- Who it affects: Employers relying on performance concerns to end casual engagements
On 2 April 2026 the worker told her supervisor she could not work the public holiday on 6 April and had asked a colleague to work the shift for her. The supervisor asked her to give that colleague her keys, and she handed them over on 5 April. On 6 April she contacted the colleague to collect the keys so she could work the next morning. He replied that he had been told not to give them back. Asked why, he said that as far as he knew he had to “train the new girl this week”.
That afternoon the company’s Director and Head of Operations sent her a text saying the colleague “will be training with a new staff member this week so you will not be required until new rosters go out next week.” Minutes earlier he had emailed her about “a pattern where required duties are either not being completed or are being redirected to other team members”. The email said the company had decided to train an extra team member and encouraged her “to take this as an opportunity to reset and demonstrate [her] commitment to the team”. The employer did not dispute that this email was the first she knew of any concern about her performance.
After seeking legal advice, the worker replied on 16 April. She objected to the lack of detail and the absence of any earlier warning, asked for clear and specific examples, and said she would welcome a meeting. She also asked about her hours, because the new roster had not reached her by the usual date. The worker says the director told her on 27 April that he would “get back to [her] shortly”. On 8 May she wrote again, claiming she was owed toilet cleaning and motor vehicle allowances under the Cleaning Services Award 2020 for work at two locations. The director’s reply on 10 May said she was “no longer in the system” and that he did “consider the matter concluded”.
- 6 Apr 2026 Shifts go to a new staff member. First performance email sent.
- 16 Apr 2026 Worker asks for specifics and a meeting.
- 8 May 2026 Worker raises unpaid award allowances.
- 10 May 2026 Dismissal.
- 30 May 2026 Unfair dismissal application lodged.
- 1 Oct 2026 Hearing proceeds without the employer.
- 23 Oct 2026 Decision handed down.
The worker applied to the Commission on 30 May 2026. HACCP filed no materials, despite a deadline of 22 September 2026 and an extension to 24 September. It did not attend the hearing on 1 October 2026, although its own correspondence showed it had received the listing and understood it was required to attend. Chambers called the company several times and left a voicemail, but it had not made contact by the time the hearing started. The matter was heard and decided in HACCP’s absence, on the materials the worker provided.
in its response form that fortnightly inspection emails “highlighted areas for staff to concentrate on” and that other team members reported the worker “was refusing to carry out the required tasks as it was not part of her job”.
that there was no valid reason for her dismissal, that there was nothing wrong with the standard of her work, and that no performance concerns had been raised with her before 6 April 2026.
that HACCP had offered no details or evidence to back its claim of poor performance, and nothing to show it held any such concerns before 6 April 2026. There was no valid reason. Because the email did not say what period, duties or sites it referred to, she could not properly understand or respond to the allegations. She was given no warning and no real opportunity to improve.
Commissioner Rogers found the worker “was never given an opportunity to ‘reset’ or ‘demonstrate’ her commitment to the team, as she was not rostered shifts between the date of that email and the dismissal on 10 May 2026.”
The Commissioner also found the dismissal harsh because HACCP failed to communicate with her in a timely way. The Commissioner noted that even the email the worker understood to be her dismissal did not clearly tell her she was being dismissed.
The worker did not seek reinstatement. She has started TAFE studies, which include unpaid placements, so she can move into the education sector. The Commission applied the Sprigg formula, the well-established method for calculating unfair dismissal compensation. It found she would probably have stayed with HACCP for at least another 12 months. At her fortnightly pay of $613, that came to $15,938. She had earned nothing since the dismissal, and the Commission found her studies were a reasonable way of mitigating her loss, so it made no deduction. It took off four months because she was unlikely to find work in her new field before the 2027 school year began. The amount was then reduced to the compensation cap of 26 weeks’ pay, giving $7,969, less tax.
On the warning factor, the Commission considers how much time passed between the worker being told of unsatisfactory performance and the dismissal, and whether she had a real opportunity to improve. Here the Commission found she had none, because she was given no shifts between the 6 April email and her termination.
Source: [2026] FWC 4048
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