Kagura Games LLC v Tabitha Dickerson - [2025] FWCFB 225

[2025] FWCFB 225

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Kagura Games LLC
v

Tabitha Dickerson

(C2025/8169)

VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT BELL
DEPUTY PRESIDENT FAROUQUE

SYDNEY, 1 OCTOBER 2025

Permission to be represented – Appeal against decision [2025] FWC 2219 of Deputy President Slevin on 1 August 2025 in matter number U2025/2317 – Respondent opposes grant of permission to be represented – s 596 of the Fair Work Act 2009 (Cth) – Permission granted.

Kagura Games LLC seeks permission to appeal and to appeal from the decision of Deputy President Slevin in Dickerson v Kagura Games LLC[2025] FWC 2219. The decision concerned an unfair dismissal application made by Tabitha Dickerson under s 394 of the Fair Work Act 2009 (Cth) (the Act). During these proceedings, Kagura submitted that Ms Dickerson was not an employee and, accordingly, that Ms Dickerson could not make an unfair dismissal application. The Deputy President found that Ms Dickerson was an employee and that her dismissal had been harsh, unjust and unreasonable. The Deputy President ordered that she be reinstated with continuity of service and backpay.

The appeal is listed for hearing on Wednesday, 15 October 2025. Kagura seeks permission under s 596 of the Act to be represented by Peter Healey of counsel instructed by Cameron Rogers of Cam Rogers Legal in relation to the appeal. Ms Dickerson opposes permission being granted. Both parties filed written submissions in support of their respective positions as to whether Kagura should be permitted to be legally represented.

The Legislative Framework

The circumstances in which the Commission may grant permission for a party to be represented by a lawyer or paid agent in a matter before the Commission are set out at s 596 of the Act. The section provides the following:

596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

The Full Bench in Roberts v TasTAFE[2024] FWCFB 449, summarised the principles to be applied in the exercise of the discretion to grant permission for representation and the effect of this provision as follows (at [4]-[5]):

As will…

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 225
Decision Date: 1 OCTOBER 2025

CaseChat Overview and Summary

Kagura Games LLC has sought permission to appeal a decision made by Deputy President Slevin in an unfair dismissal application brought by Tabitha Dickerson under section 394 of the Fair Work Act 2009 (Cth). The original decision held that Ms Dickerson was an employee and that her dismissal was harsh, unjust, and unreasonable, ordering her reinstatement with continuity of service and backpay. The appeal hinges on the question of whether Ms Dickerson was indeed an employee and the implications of this determination. Ms Dickerson opposes the granting of permission for Kagura Games LLC to be represented by legal counsel, Peter Healey, who is instructed by Cameron Rogers of Cam Rogers Legal.

The legal issues before the court involve the interpretation and application of section 596 of the Fair Work Act 2009, which governs the circumstances under which the Fair Work Commission may grant permission for a party to be represented by a lawyer or paid agent. Specifically, the court must determine whether granting permission for Kagura Games LLC to be represented aligns with the statutory criteria, including whether it would enable the matter to be dealt with more efficiently due to the complexity of the issues, or if it would be unfair not to allow representation given the potential imbalance in legal resources between the parties.

The Full Bench, comprising Vice President Gibian, Deputy President Bell, and Deputy President Farouque, decided to grant permission for Kagura Games LLC to be represented by counsel. The court found that the appeal involves significant questions of law, particularly concerning the application of transitional provisions and the interpretation of section 15AA of the Fair Work Act in relation to the minimum employment period required for an unfair dismissal application. Given the complexity and importance of these issues, the court concluded that allowing legal representation would facilitate a more efficient and fair determination of the appeal. The Full Bench also considered the need to ensure fairness to both parties, emphasizing that the presence of responsible counsel could assist in a fair hearing, even if only one party is represented.

Orders