Self evidently an employee cannot be dismissed without the employer taking reasonable steps to notify the employee of the fact of dismissal. This extract from a Fair Work Commission unfair dismissal case makes just that point.
“[35] It is well established that order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced” 9.
[36] Guardian claims to have dismissed Ms Zheng’s employment on 30 July 2025. At this point, it had not received the Suitability Declaration from Ms Zheng and it had received no reply to at least four pieces of correspondence it had sent her requesting the completion of the document (at least in its belief), including two in the days prior, both of which had warned that if the Suitability Declaration was not returned by 30 July 2025 the employment would cease. Not having received any reply by 30 July 2025, Guardian effectively considered the employment to be over at this point. It then took some internal steps to process what it considered to be the termination, which were in effect to remove Ms Zheng from its system, later causing an email to be sent to her which was not explicit as to termination, but implied as much.
[37] At first blush, Guardian’s reasoning at this point appears valid. It’s requirement that its employees complete a Suitability Declaration was an entirely appropriate one, arising from a significant child-safety incident which had national significance and sector-wide consequences. Ms Zheng had not returned the completed Declaration despite having been urged to do so.
[38] Impugning the validity of this reasoning, to some extent, is Guardian’s failure to apprehend that Ms Zheng had not responded because she was on leave. I accept that as a member of the casual pool, Ms Zheng was not entitled to “annual leave” and further, that she should have informed the central casual team rather than her centre manager of her leave plans. However, it appears to me not unreasonable that in response to Ms Zheng’s deafening silence over email, Ms Schultz, or someone, might have checked with the centre at which Ms Zheng had been working regularly for the past year who would have been able to inform them Ms Zheng had told them she was travelling overseas. Ms Colley said the team of Guardian employees that manages its casual workforce checked to see whether employees who had failed to complete the Suitability Declaration were on approved leave10. Presumably this happened in relation to Ms Zheng, although the evidence is not clear on this point. Ms Colley also said that a review of Human Force “did not indicate Ms Zheng was on approved leave over the relevant weeks”11. I note however there is evidence before me that this system did indicate Ms Zheng’s status was “unavailable”. I consider this might have also reasonably triggered a follow up check with the centre she had been working at for so long. There was no evidence before me that any such check had occurred. Such a check may have revealed the logical possibility that Ms Zheng was not refusing to follow her employer’s direction, but rather, she was not aware the direction had been given.
[39] An even more significant issue arises. Guardian is inviting me in this matter to accept that the termination of Ms Zheng’s employment occurred on 30 July 2025 – in circumstances where she did not know about it.
[40] It is well established that dismissal does not ordinarily take effect unless and until it is communicated to the employee by plain or unambiguous words or conduct12. There is no proper exception to the general proposition that a dismissal, for the purposes of Part 3-2 of the Act, cannot take effect before it is communicated to the employee13. The mere delivery of a document to an employee’s usual address notifying the employee of their dismissal would not itself constitute communication of the dismissal if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document14. When an employee is informed by email that they have been dismissed, they can usually be regarded as knowing or having a reasonably opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address15. However, as a Full Bench of this Commission has said:
“There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal – for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons.”16
[41] There is no evidence before me that there was any form of clear and unambiguous communication with Ms Zheng that her employment was terminated on 30 July 2025. It may be that from Guardian’s perspective, Ms Zheng’s employment had been terminated, but this is not enough. It was not communicated to Ms Zheng.
[42] I have considered whether the accepted principle that an employee cannot be dismissed without it being communicated to them appropriately operates differently with respect to a casual employee, such as Ms Zheng. Identifying precisely when a casual employee has been dismissed with precision can sometimes be more difficult than in relation to permanent employees 17. But, in the context of Part 3-2 of the Act, the fundamental principles associated with the concept of “dismissal” apply18. I do not consider that Ms Zheng’s casual status changes the notion that in these circumstances, dismissal required clear and unambiguous communication to have been made with her to that effect.
[43] There was some evidence that ordinarily Guardian’s processes are such that a letter to Ms Zheng should have been sent to her confirming Guardian had ended her employment19. This does not assist Guardian. Whether through mistake or oversight, no such communication was sent.
[44] I do not agree with Guardian’s submission that Ms Zheng was dismissed on 30 July
2025.
[45] If the dismissal did not occur on 30 July 2025, could it have occurred on 4 August 2025, when what appears to be an automated email was sent to Ms Zheng stating that “we’re sorry to see you go” and asking her to complete an exit survey?
[46] In my view, I do not think this is the case.
[47] First, I accept Ms Zheng’s evidence that she did not have access to her email until 5 August 2025. Her evidence that up until then she was in a remote part of China where there was a typhoon was clear and not impeached. The degree to which she sought to communicate with Guardian after 5 August 2025, by sending a flurry of emails, supports the notion that up until then she could not do so. Thus, I accept that while Ms Zheng received the email on 4 August
2025 in her inbox on that day, she was legitimately unable to access her email when it was sent, did not read the email and thus it could not have given rise to the termination of her employment.
[48] Secondly, even if Ms Zheng had read this email, I do not consider this email is the kind of “clear and unambiguous” communication of the termination of her employment. It does not advise her that her employment is terminated. The implication is there but it is not explicit.
[49] This may be contrasted with the email sent to Ms Zheng by Ms Schulz on 5 August 2025, sent after Ms Zheng’s email in which she attempted to explain her whereabouts and failure until then to respond. This email is unambiguous. Whilst it does say that Ms Zheng might reach out upon her return for more “casual opportunities”, it also says “unfortunately, your employment with us was ended”.
[50] I consider this is the point at which Ms Zheng received clear and unambiguous advice that her employment was terminated.
[51] Thus, consideration must be given to whether at this point Guardian had a sound, defensible and well-founded reason to terminate the employment.
[52] I consider it did not. Guardian’s reason for the dismissal of the employment was Ms Zheng’s failure to complete the Suitability Declaration. But at this point, Guardian was in possession of Ms Zheng’s entirely reasonable explanation as to her failure to return the Suitability Declaration. It was also told clearly that Ms Zheng was “happy to complete any outstanding forms or requirements” which I consider should have been read as her preparedness to complete the Suitability Declaration (bearing in mind that at this point, on Ms Zheng’s evidence, which I accept, she had not actually received the Declaration itself).
[53] Notwithstanding this explanation, Guardian terminated Ms Zheng’s employment. While from its perspective, this was the maintenance of a decision already made and a state of affairs already in place, it was entirely unreasonable taking into account what it then knew – that Ms Zheng had not simply ignored the directive and was entirely prepared to comply with it, and her reason for not replying was that she was not able to.
[54] Several matters fortify my consideration in this regard. First, even if the dismissal had occurred on 30 July 2025 (which it did not) I am not, for the reasons mentioned above, convinced that it was well-founded, in circumstances where there is no evidence before me that Guardian thought to check with the Mentone West centre as to whether Ms Zheng’s failure to respond may have had a reasonable explanation, such as her being on leave. Second, I am not convinced on the evidence before me that Ms Zheng was even sent the emails containing the Declaration on 15 and 21 July 2025 or indeed has ever been sent a link to the Declaration for her to complete. It seems odd to me that if Ms Zheng was indeed sent these emails by Guardian, copies of them would not have been provided in evidence. If Ms Zheng was not sent those emails, the approach taken by Guardian during the last week of July 2025 seems even more unreasonable. Third, if the crux of Guardian’s rationale for its decision to terminate Ms Zheng’s employment is her failure to complete the Suitability Declaration, I am struck by its intractability in response to her confirmation via email that she was entirely prepared to do it.
It is perplexing that this matter has not been resolved simply by Guardian sending Ms Zheng the form, her completing it, and then things returning to normal.
[55] Obviously, if Ms Zheng was provided with that opportunity – to complete the Declaration – and then, having received it and being provided with a reasonable opportunity to complete it – failed to do so, Guardian would have been entirely justified in ending the employment. But as I have explained above, that is not what occurred in this matter, Ms Zheng has never refused to complete the Suitability Declaration.
[56] I do not consider Guardian had a valid reason to terminate Ms Zheng’s employment relating to her capacity or conduct and this weighs in favour of a finding that the dismissal was unfair.”
Zheng v Guardian Community Early Learning Centres Pty Ltd [2025] FWC 3202 delivered 3 November 2025 per Redford C