A casual early childhood educator was dismissed after failing to complete a required Suitability Declaration. The employer introduced this declaration following a sector-wide child safety issue and attempted to email all staff several times requesting completion.

The employee had travelled to a remote area in China and lost access to email due to a typhoon. She had already marked herself as unavailable on the Human Force roster system and said she had also told her Centre Manager. Because she didn’t respond to emails, the employer removed her from the system, which triggered an automated exit-survey email. When the employee regained internet access on 5 August, she emailed immediately to say she had not ignored instructions, had not resigned, and was happy to complete the form.

The employer maintained that her dismissal had already been processed and argued that, as a casual, they no longer needed her services.

The Fair Work Commission found:

• The dismissal took effect only on 5 August, when the employee received a clear message stating she had been terminated.
• Automated exit-survey emails were not clear or unambiguous enough to communicate a dismissal.
• An employee cannot be deemed to have “received” an email simply because it was sent, especially when they were legitimately unable to access it.
• There was no evidence that the employee intentionally refused to complete the Suitability Declaration.
• The employer failed to check with the Centre Manager about her unavailability or make genuine efforts to understand why she had not responded.
• The employer did not properly notify her of the reason for dismissal, nor provide an opportunity for her to respond before making the decision.

The Commission held the dismissal was harsh, unjust and unreasonable.
Remedy: Reinstatement, continuity of service, and $11,940.29 in lost pay (minus a mitigation deduction).

Key Learnings for Employers

1. “Sent” does not equal “received.”

Email communication must be accessible and understood. If an employee is overseas, on leave, or has notified unavailability, employers should take extra steps before assuming non-response is misconduct.

2. Automated system messages cannot replace a clear termination notice.

Exit surveys, system-generated updates, or roster changes are not considered valid termination communication.

3. Always check the context before acting.

If an employee has flagged unavailability or previously communicated travel or leave, verify this before progressing to termination.

4. Procedural fairness is critical, even for casuals.

Employees must be:

• told the reason for possible termination
• given a chance to respond
• assessed fairly on the facts

This applies irrespective of employment type.

5. No evidence of refusal means no valid reason for dismissal.

A failure to complete a task due to uncontrollable circumstances (like natural disasters, technology issues, or being out of range) is not wilful misconduct.

6. Records matter.

If you rely on email evidence, you must show:

• it was actually sent
• and reasonably likely received
• and the employee had the opportunity to read it

Simply proving an email was issued is not enough.

7. Reinstatement is likely when relationship trust is intact.

The Commission noted no breakdown of trust, making reinstatement the appropriate remedy.