Ms Joanna Pascua v - [2024] FWC 2669

[2024] FWC 2669

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Joanna Pascua
v

Doessel Group Pty Ltd

(U2024/3881)

DEPUTY PRESIDENT SLEVIN

SYDNEY, 26 SEPTEMBER 2024

Application for an unfair dismissal remedy – Jurisdictional Objection - objection that Applicant not dismissed – whether Applicant an employee or independent contractor

Ms Joanna Pascua alleges that she was unfairly dismissed by Doessel Group Pty Ltd (Doessel). She seeks an unfair dismissal remedy pursuant to s 394 of the Fair Work Act2009 (Cth). Doessel objects to the application on the basis that Ms Pascua was not dismissed because she was not an employee. Doessel contends that Ms Pascua was engaged as an independent contractor.

An application for an unfair dismissal remedy under s 394 can only be made by a person who has been dismissed. Subsection 386(1) of the Act sets out the circumstances in which a person is taken to have been “dismissed” for the purposes of s 394. A person can only be dismissed when their employment comes to an end in one of the circumstances described in s 386(1). In the absence of a relationship of employer and employee, there is no employment, and a person is not dismissed for the purposes of s 394. This decision deals with the issue of whether an employer and employee relationship existed between the Ms Pascua and Doessel.

Background

Ms Pascua performed work as a legal assistant for MyCRA Lawyers which is the trading name of Legal Practice Holdings Group Pty Ltd. MyCRA Lawyers represents itself as the only specialist credit repair lawyers in Australia. It operates from Queensland. Ms Pascua lives in the Philippines. She performed work remotely from her home. The work for MyCRA Lawyers was performed under a contract Ms Pascua had with the Doessel Group.

Ms Pascua commenced these proceedings against Legal Practice Holdings Group Pty Ltd. Doessel and Legal Practice Holdings Group Pty Ltd are related entities. At the hearing of the matter Ms Pascua sought to amend the application to identify Doessel Group Pty as the employer. I granted the application on the basis that Doessel Group Pty Ltd was the correct respondent and there was no prejudice in doing so. The respondent had prepared responded to the claim and prepared its material for the hearing on the jurisdictional objection on the basis that there was a legal relationship between Ms Pascua and Doessel Group Pty Ltd but it was not an employment relationship as the work was performed under a contract for services. It relied upon the contract between those parties and accepted that there was no need for further material to be provided as a consequence of the amendment.

The issue was also raised that Ms Pascua worked in the Philippines. The issue being that she may not be a national system employee. Section 380 provides that the protection from unfair dismissal in Part 3-2 of the Act apply to national system employees. Submissions were invited…

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.

Keep reading for free

Create a free CaseChat account to read Ms Joanna Pascua v and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] FWC 2669
Decision Date: 26 SEPTEMBER 2024

CaseChat Overview and Summary

Ms Joanna Pascua brought an application under s 394 of the Fair Work Act 2009 (Cth) for a remedy for unfair dismissal against Doessel Group Pty Ltd (Doessel). Doessel objected to the application on the basis that Ms Pascua was not dismissed because she was not an employee. The objection was based on the argument that Ms Pascua was engaged as an independent contractor. The Fair Work Commission was required to decide whether Ms Pascua was an employee or an independent contractor.

The Commission considered the terms of the contract between Ms Pascua and Doessel and determined that Ms Pascua was an employee. The Commission found that the work Ms Pascua performed was paralegal work. It was not work involving a profession, trade or distinct calling. The work was performed within the business of MyCRA Lawyers, a business conducted by Doessel. Ms Pascua was paid an hourly rate of pay that was described as a salary as a full time employee. The contract required that Ms Pascua perform the work and not that she achieve particular results. She took daily instruction as to the work to be performed and was to be supervised in performing the work. The contract was ongoing unless terminated in accordance with the terms of the contract. The contract referred to the arrangement as employment in a number of places and contained provisions consistent with employment. The Commission found that the description of the arrangement as one of independent contractor belied the actual nature of the contract. The Full Bench of the Commission found that the contract created an employment relationship. The Respondent's objection was dismissed and the matter was listed for hearing on the merits of the unfair dismissal claim.

Orders