Doessel Group Pty Ltd v Joanna Pascua - [2025] FWCFB 43

[2025] FWCFB 43

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Doessel Group Pty Ltd
v

Joanna Pascua

(C2024/7389)

VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT ROBERTS

SYDNEY, 21 FEBRUARY 2025

Appeal against decision [2024] FWC 2669 of Deputy President Slevin at Sydney on 26 September 2024 in matter number U2024/3881– Application under s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy – Jurisdictional objection – Applicant lives and performed work in the Philippines as a legal assistant – Whether the applicant was an employee or independent contractor – Whether national system employee and entitled to apply for an unfair dismissal remedy –Application of ss 35(2)(b) and 35(3) of the Act – Location of formation of contract of employment – No error in finding that applicant was an employee – Not appropriate to consider application of ss 35(2)(b) and 35(3) of the Act – Permission to appeal refused.

Introduction

Doessel Group Pty Ltd (Doessel Group or the appellant) seeks permission to appeal and to appeal from a decision of Deputy President Slevin made on 26 September 2024.[1] The decision from which Doessel Group seeks to appeal concerns Doessel Group’s jurisdictional objection to an application for an unfair dismissal remedy made by Ms Pascua. Doessel Group’s objection was based on an assertion that Ms Pascua was not dismissed as she was not an employee but rather an independent contractor.

Having noted that Ms Pascua performed work in the Philippines, the Deputy President indicated that he was satisfied that Ms Pascua was a national system employee for the purposes of the Act.[2] The Deputy President then found that Ms Pascua was an employee and was able to make an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). Accordingly, the Deputy President dismissed the jurisdictional objection.[3] The substantive application made by Ms Pasua for an unfair dismissal remedy remains to be determined by the Commission.

For the reasons that follow, permission to appeal should be refused.

Factual background

The background to the proceedings can be summarised as follows. Ms Pascua performed work as a legal assistant for a business known as MyCRA Lawyers. MyCRA Lawyers operates a business providing specialist credit repair services and operates out of premises located in Queensland. Ms Pascua lives and, at all relevant times, performed work from her home in the Philippines.

There was in evidence before the Deputy President a document entitled “Independent Contractor’s Agreement”. There was separately in evidence a document entitled “Employee Non-disclosure Agreement” which was signed by Ms Pascua on 21 July 2022. The Employee Non-disclosure Agreement was an annexure to the Independent Contractor’s Agreement and it appears to be accepted by the parties that the Independent Contractor’s Agreement contained the terms of the contract under which Ms Pascua performed work.

MyCRA Lawyers represents clients in disputes over credit arrangements with financial institutions. Ms Pascua performed paralegal work. She described…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWCFB 43
Decision Date: 21 FEBRUARY 2025

CaseChat Overview and Summary

In the Fair Work Commission Full Bench appeal, Doessel Group Pty Ltd, the appellant, sought permission to appeal and to appeal from a decision of Deputy President Slevin concerning a jurisdictional objection to an unfair dismissal remedy application made by Ms Joanna Pascua. The Deputy President had found that Ms Pascua was an employee and dismissed the jurisdictional objection. The appeal raised issues concerning whether Ms Pascua was an employee or independent contractor and whether she was a national system employee entitled to apply for an unfair dismissal remedy. The Full Bench found that there was no sufficiently arguable case of appealable error to justify permission to appeal being granted. It was concluded that the Deputy President did not err in finding that Ms Pascua was an employee rather than an independent contractor, and the characterisation of the relationship did not require a wide-ranging review of the parties' dealings. The Full Bench also found that it was not in the public interest to grant permission to appeal in relation to the jurisdictional issue, as the evidence was incomplete, and the question had not been directly argued before the Deputy President. Consequently, permission to appeal was refused.

Orders