Typhoon in remote China caused worker to lose internet and email access
A casual early childhood educator challenged her dismissal arguing she was overseas in remote China affected by typhoon without email access when employer sent compliance survey and termination warnings.
The worker contended she had informed her centre manager about her overseas trip, marked herself unavailable in system, and immediately offered to complete suitability declaration upon regaining email access but employer refused.
The employer maintained the worker failed to complete critical child-safety declaration despite multiple email requests and warnings.
Employment and leave notification
The worker commenced working for the employer as an early childhood educator on 28 November 2022 on a casual basis as a member of a pool deployed based on operational needs.
For the entire year preceding the end of her employment, she had always worked at the same centre at Mentone West save for two shifts at other centres. In May 2025, she told the centre manager she would be away from 3 July 2025 to 29 August 2025 for an overseas trip.
She also used the employer's app to apply for leave. The worker thought she had done the right thing, having communicated her plans to the person to whom she had been reporting on a day-to-day basis for the past year. Evidence showed her status in the platform during the period was marked as "unavailable".
Just prior to the worker's departure on 2 July 2025, the employer sent an email announcing employees would be required to complete a suitability declaration as a result of a recent high-profile child-safety issue.
The worker travelled to a remote province of China where a typhoon caused her to lose internet, email and phone access. She did not regain access until 5 August 2025.
Email communications and doubt about receipt
The employer engaged a provider to send bulk emails requesting completion of the suitability declaration.
The employer asserted the worker was sent emails on 15 July 2025 and 21 July 2025. The worker claimed not to have received those emails and upon regaining access could find no record of having received the messages.
Doubt existed on the evidence as to whether the worker received these messages. The employer's national manager provided a report from the provider which appeared to show emails sent to the worker's address, but no data appeared under columns entitled "opens" or "clicks".
The national manager provided what she said were copies of the emails sent but these were not the emails sent to the worker - they were addressed to someone else and were copies of the email the employer asked the provider to send.
On 23 July 2025, the worker was sent an email stating if the survey was not completed by Friday her employment would be terminated.
On 29 July 2025, another email stated if she did not complete and return the declaration by 30 July 2025, her employment would "have to be ended". The employer said not having received a reply by 30 July 2025, it considered the worker's employment had ceased.
On 4 August 2025, steps were taken to delete entries relating to the worker from the system, triggering an automated email stating "we're sorry to see you go".
Worker's explanation rebuffed
Upon regaining access to her emails, the worker replied apologising for the delay, explaining she was overseas with limited mobile reception, and stating she was happy to complete any outstanding forms or requirements.
The employer's casual workforce manager responded: "Unfortunately, your employment with us was ended as the survey was not completed." Shortly afterwards, the worker sent another email clarifying she had informed the centre of her leave plans and submitted her leave request.
About ten minutes later the manager said "we will not be changing this decision", stating communication needed to come through the casual feedback team not centres, and the worker had been absent for more than four weeks.
The worker sent another email explaining the manner in which she had provided her availability and that she did not have access to email until 5 August 2025.
Another blunt response stated: "As a casual we have elected to end your casual employment with us." The worker sent yet another message repeating she had formally submitted her absence and asking for the decision to be reviewed.
A further response stated the employer did not have a need for the worker to provide casual labour and referenced again the worker's failure to complete the survey.
Dismissal requires clear communication
The Commissioner found dismissal did not ordinarily take effect unless and until it was communicated to the employee by plain or unambiguous words or conduct.
There was no evidence of any form of clear and unambiguous communication with the worker that her employment was terminated on 30 July 2025.
The Commissioner accepted the worker's evidence that she did not have access to her email until 5 August 2025 and was legitimately unable to access her email when the 4 August automated message was sent.
Even if the worker had read the 4 August email, the Commissioner did not consider it was the kind of clear and unambiguous communication of termination.
The Commissioner considered the email sent by the casual workforce manager on 5 August 2025 was unambiguous, stating "unfortunately, your employment with us was ended".
The Commissioner considered this was the point at which the worker received clear and unambiguous advice that her employment was terminated.
No valid reason at point of dismissal
The Commissioner considered whether at this point the employer had a sound, defensible and well-founded reason to terminate the employment and found it did not.
At this point, the employer was in possession of the worker's entirely reasonable explanation as to her failure to return the suitability declaration. It was also told clearly that the worker was happy to complete any outstanding forms or requirements.
Notwithstanding this explanation, the employer terminated the worker's employment. While from its perspective this was the maintenance of a decision already made, it was entirely unreasonable taking into account what it then knew: that the worker had not simply ignored the directive and was entirely prepared to comply with it.
The Commissioner was not convinced on the evidence that the worker was even sent the emails containing the declaration on 15 and 21 July 2025. It seemed odd that if the worker was indeed sent these emails, copies of them would not have been provided in evidence.
The Commissioner was struck by the employer's intractability in response to the worker's confirmation via email that she was entirely prepared to complete the declaration.
It was perplexing that this matter had not been resolved simply by the employer sending the worker the form, her completing it, and then things returning to normal. The worker had never refused to complete the suitability declaration.
Reinstatement with eleven weeks lost pay
The employer submitted reinstatement was inappropriate because there was a breakdown of trust and confidence. The Commissioner did not understand the basis of the submission. There was no evidence of any issue with the worker's employment.
Given she worked with regularity at the same centre for a year, the Commissioner inferred that her work performance and contribution to the centre was valued.
The people with whom the worker engaged at the time of her dismissal were not the people she worked with on a day-to-day basis. The worker had said repeatedly she was prepared to complete the suitability declaration.
The Commissioner ordered the employer must reinstate the worker's employment to the casual pool on or by 17 November 2025.
The worker submitted her average weekly gross pay in the six months prior to leave was $1,206.09.
The Commissioner found had the worker not been dismissed, she would not have worked until at least 28 August 2025 when she returned from overseas.
The Commissioner considered it likely the worker would have commenced work again from the week beginning 1 September 2025.
The period was eleven weeks. The Commissioner applied a discount of ten percent for the worker's failure to attempt to mitigate her loss. The amount of $11,940.29 and appropriate superannuation contribution was to be paid within 14 days.
