Unfair Dismissal for “No Response”? Why Employers Must Verify Absences First

 

A recent Fair Work Commission (FWC) ruling has made clear that employers cannot rely solely on automated HR systems when making termination decisions. In Fang Zheng v Guardian Community Early Learning Centres Pty Ltd [2025] FWC 3202, the FWC found that a casual educator’s dismissal was unfair after her employer failed to verify the reasons for her silence during an overseas trip.

Ms Zheng began working for Guardian Community Early Learning Centres as a casual educator in late 2022. Although part of Guardian’s broader casual “pool,” she had been regularly rostered at the same centre for around a year.

In May 2025, she advised her local manager that she would be travelling overseas for nearly two months and marked herself as unavailable in Guardian’s rostering app. The app’s green indicator led her to believe that her unavailability was correctly recorded.

Shortly before her departure, Guardian announced that all educators would soon be required to complete a new “Suitability Declaration”, a compliance step introduced after a sector-wide child safety review. Ms Zheng left for China on 3 July 2025. A severe typhoon cut power and communications across the region, leaving her without internet or phone access until 5 August.

Meanwhile, Guardian sent a series of automated emails requesting completion of the declaration, culminating in a “final warning” that her employment would end if she did not respond by 30 July. When she remained uncontactable, Guardian removed her from its HR system on 4 August 2025, triggering an automated exit process.

On regaining reception the following day, Ms Zheng immediately explained her absence and offered to complete the form. Guardian declined, confirming her employment had already been terminated. She filed an unfair dismissal claim shortly after.

 

The FWC’s Findings

 

The FWC acknowledged that Guardian had legitimate reasons to require compliance with its new child safety obligations. However, it found that the company’s handling of Ms Zheng’s non-response was unreasonable and failed to meet the standard expected of a fair and informed employer.

 

Failure to Make Reasonable Enquiries

The FWC held that when a normally reliable employee suddenly becomes unresponsive, a prudent employer must take basic steps to verify what’s happened. In this case, a simple call or email to the local centre where Ms Zheng regularly worked would have revealed that she was overseas.

 

Over-Reliance on Automation

While Guardian’s “Human Force” system indicated that Ms Zheng was unavailable, it did not record her absence as approved leave. Nonetheless, that information should have prompted further checking. The FWC emphasised that automated systems cannot replace human judgment, particularly where the consequences are serious.

 

Timing & Communication of Dismissal

Guardian argued that termination took effect on 30 July 2025, when the final warning expired. The FWC disagreed, confirming that a dismissal only takes effect once it has been communicated. Because Ms Zheng was offline at the time, no valid notice occurred until Guardian directly told her on 5 August 2025, after she had already provided a reasonable explanation and expressed willingness to comply.

At that point, Guardian no longer had a sound or defensible reason to end her employment.

 

The Outcome

 

The FWC ruled that Ms Zheng’s dismissal was unreasonable and unfair. She was reinstated to her role and awarded compensation for lost earnings, totalling $11,940.29 plus superannuation.

 

Lessons for Employers

 

This case highlights the importance of maintaining human oversight and procedural fairness, even when technology handles a significant portion of the administrative process.

 

Always Verify Before Acting

A lack of response from an employee, particularly one with a strong work record, should trigger follow-up enquiries with direct managers or local sites before concluding that the employee has disengaged.

 

Automation Isn’t a Substitute for Fairness

HR platforms and centralised rostering tools can assist in managing staff, but employers remain responsible for ensuring accuracy and fairness in every step of the process.

 

Communication Must Be Clear & Direct

A termination cannot take effect through system settings or automated emails alone. Employees must be clearly and personally notified of dismissal decisions.

 

Reconsider When New Facts Arise

If an employee provides a reasonable explanation for earlier non-compliance, employers must reassess their decision. Persisting with termination in the face of new information can render an otherwise defensible decision unfair.

 

Casual Status Offers No Shield Against Claims

Regular and systematic casual employees are still protected under the unfair dismissal provisions.

 

Contact Us

 

Employers should not treat silence as misconduct. Before dismissing an employee for failing to respond, it is crucial to confirm the facts, ensure communication channels have been effective, and exercise a measure of human judgment.

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Related Blog – Historic Misconduct Leads to Unfair Dismissal Finding by Fair Work Commission