The recent decision in Ms Fang Zheng v Guardian Community Early Learning Centres Pty Ltd [2025] FWC 3202 reinforces the need for employers to take proactive and reasonable steps when attempting to contact employees before making termination decisions based on non-responsiveness. It highlights the risks of relying on assumptions, automated processes, or incomplete information, and serves as a timely reminder that dismissal decisions must be well-founded, clearly communicated, and defensible if challenged - even where the employee is a casual. 

Ms Zheng commenced casual employment in November 2022 as part of Guardian’s casual educator “pool”, performing shifts at various Guardian Community Early Learning Centres (Guardian) as required. For the year prior to her dismissal, she had been working regularly at the same centre. 

In May 2025, Ms Zheng informed her local manager that she would be travelling overseas between 3 July 2025 and 29 August 2025 and was looking forward to returning to work after the trip. She also used Guardian’s “Human Force” app to mark herself as unavailable, assuming this reflected an approved leave period as the app indicator “turned green”. Guardian argued she should have separately notified its centralised casual pool team, rather than just her local centre. 

The day before Ms Zheng’s departure to a remote region in China, Guardian sent an email to employees, including Ms Zheng, announcing that they would soon be required to complete a “Suitability Declaration” as a result of a recent high-profile child-safety issue in the early childhood education and care sector. On 3 July 2025, Ms Zheng travelled to China. A typhoon in the area caused the loss of all phone, email and internet access until 5 August 2025, when Ms Zheng returned to a metropolitan location. 

Automated emails containing the declaration were sent to all educators on 15 and 21 July 2025. When Ms Zheng did not respond, Guardian’s centralised managers sent follow-up emails on 23 July and 29 July 2025, with a final email warning that if Ms Zheng failed to return the declaration by 30 July 2025, her employment would be terminated. 

On 4 August 2025, Guardian removed Ms Zheng from the Human Force app, triggering an automated exit survey email. When Ms Zheng regained reception on 5 August 2025, she immediately apologised, explained her lack of access, and confirmed her willingness to complete the declaration. Guardian responded, confirming that her employment had already ended and refused to reconsider its position. Ms Zheng lodged an unfair dismissal application on 6 August 2025. 

The Commissioner noted that Guardian's initial rationale for ensuring compliance with the new child-safety requirements was appropriate and legitimate. However, it was held that in circumstances where an employee who normally responds promptly suddenly goes silent, a reasonable employer must make basic enquiries before concluding that the employee has chosen not to comply. 

In this case, the Commissioner noted that, given Ms Zheng’s “deafening silence”, Guardian should have checked in with the centre she had been regularly performing work. Had Guardian contacted the centre and made appropriate enquiries, the centre manager would have been able to confirm that Ms Zheng was overseas. 

Furthermore, while the Human Force system did not reflect a period of approved leave, it did show Ms Zheng as unavailable. The Commissioner noted that this fact should have triggered a follow-up check with the centre she had been working at for a year. 

Guardian argued that Ms Zheng was dismissed on 30 July 2025 (not 20 July 2025) when the final warning expired. The Commission rejected this, confirming that a dismissal must be communicated to an employee before it can take effect. It was held that Ms Zheng had not been notified, and could not have been notified, as she had no email or phone access until 5 August 2025. Even the automated exit email sent on 4 August 2025 was not sufficiently clear to constitute notice of termination. The Commission therefore deemed that dismissal only occurred on 5 August 2025, when Guardian explicitly told Ms Zheng that her employment had ended. 

By 5 August 2025, Guardian had Ms Zheng’s full and reasonable explanation for not completing the declaration. She had not ignored the direction; she had not received the emails and was not able to respond due to circumstances beyond her control. Importantly, Ms Zheng was willing to comply immediately. At that point, Guardian no longer had “a sound, defensible and well-founded reason” for dismissal. 

The Commissioner held that the dismissal was unreasonable, ordered reinstatement and awarded compensation of $11,940.29 plus superannuation for lost earnings (11 weeks’ pay, discounted by 10%). 

This decision underscores several risks for employers, particularly those managing decentralised employees. A failure to verify unexplained non-responsiveness, to clearly communicate termination decisions, or to reassess a dismissal when new information emerges can expose employers to unfair dismissal claims. As this case demonstrates, it can also lead to reinstatement of employees and an order that they be back paid.  These findings are a timely reminder that: 

1. Reasonable follow-up is essential: A complete absence of response from an employee, particularly one with a consistent work history, should trigger verification steps. This may include contacting the employee’s direct manager, checking availability/absence entries in systems or attempting alternative forms of communication. 

2. Centralised HR systems cannot replace basic enquiries: Automated or centralised rostering systems should not prevent organisations from making human-centred checks when something appears unusual. 

3. A dismissal must be communicated to be effective: Employers cannot rely on "cut-off dates" or automated system actions to communicate a termination. A termination takes effect only when the employee is notified clearly and unambiguously. 

4. New information must be considered before finalising a dismissal: Once an employee provides a reasonable explanation that undermines the basis for termination, the employer must reassess its position. Maintaining a prior decision in the face of new facts may render the dismissal unreasonable. 

5. Casual employees can still be unfairly dismissed: Even without guaranteed hours, regular and systematic casuals with a reasonable expectation of continuing work remain protected by unfair dismissal laws. 

This case presents an opportune time for organisations to review their communication protocols, dismissal processes and workforce management systems. Our Employment & Safety team can assist in assessing your current procedures, identifying areas of risk and implementing practical safeguards to help ensure compliance and minimise exposure. Please reach out to our Employment & Safety team if you would like tailored advice or support.