Ms Tabitha Dickerson v Kagura Games Llc
[2025] FWC 2219
•1 AUGUST 2025
[2025] FWC 2219
The attached document replaces the document previously issued with the above code on 1 August 2025.
This document corrects typographical errors and administrative omissions.
Associate to Deputy President Slevin
Dated 6 August 2025
| [2025] FWC 2219 |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Tabitha Dickerson
v
Kagura Games Llc
(U2025/2317)
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 1 AUGUST 2025 |
Application for an unfair dismissal remedy – jurisdictional objections – foreign corporation national system employer – Respondent a national system employer
Contractor relationship - s15AA - real substance, practical reality and true nature of the relationship – Applicant an employee
Dismissal unfair – no valid reason - reinstatement ordered.
Ms Tabitha Dickerson has made application under s. 394 of the Fair Work Act 2009 (Cth) (Act) alleging that she was unfairly dismissed from employment with Kagura Games LLC (Kagura). Kagura opposes the application contending that Ms Dickerson was not an employee as she was engaged as an independent contractor. Kagura also contends that as it is a company registered in the United States of America it is not a national system employer.
The matter was dealt with in conference. Ms Dickerson was represented by Ms Franco-Castello, and the Respondent was represented by Mr Dela Cruz, the company’s Chief Financial Officer. The conference dealt with the jurisdictional objections as well as the merits of the claim.
Background
Ms Dickerson commenced working for Kagura on 18 May 2022. Kagura is a company based in the State of California in the United States of America. It develops computer games. The games are distributed and sold internationally by electronic means.
Ms Dickerson was engaged under a contract entitled ‘Kagura Games LLC Contract Agreement’. The Agreement described Ms Dickerson as an independent contractor. The contract included terms to the following effect:
(a)The services to be performed were game testing, assisting the Testing Team Manager, and submitting detailed reports.
(b)Payment was based on hours worked, with agreed rates set as follows:
· $ 18,900 a year salary ($1,575 a month before taxes) for Full Time Work
(at least 40 hours a week), or· $ 7,560 a year salary ($630 a month before taxes) for Part Time Work
(At least 20 hours a week), or· $ 3,780 a year salary ($ 315 a month before taxes) for Part Time Work
· (at least 10 hours a week), or
· Compensation shall be based on hours worked within a given month and will be worked out between the Client and Independent Contractor.
· Compensation shall be provided in the form of direct deposit or through PayPal web services.
(c)Ms Dickerson was responsible for all expenses incurred while performing the services, including travel, meals, and other costs including expenses associated with any personnel that Ms Dickerson hired to complete the work under the Agreement.
(d)The services were further described as game testing involving identifying bugs, typos, and grammatical errors, and reporting them to staff of Kagura via Google Docs or similar services as directed by a Team Manager.
(e)Ms Dickerson was required to comply with all applicable laws.
(f)Kagura was not to withhold taxes or make contributions on behalf of Ms Dickerson. Various taxes applicable to work performed in the United States of America were referenced. Ms Dickerson was responsible for her own taxes.
(g)Ms Dickerson was not eligible for employee benefits like pensions, health insurance, or vacation pay, unemployment benefits, workers' compensation insurance, or any other kind of insurance.
(h)Ms Dickerson indemnified Kagura against any loss or liability arising from the services.
The agreement was effective for 30 days after signing and automatically renewed unless terminated with 30 days' written notice.
(j)Either party could terminate the agreement immediately for reasonable cause or with 14 days' written notice.
(k)Modifications must be in writing and signed by both parties.
(l)Disputes were to be first mediated, and if unresolved, submitted to arbitration in Santa Clara County, California.
(m) Ms Dickerson could not disclose or misuse Kagura proprietary or confidential information.
(n)All work products created by Ms Dickerson were the sole property of Kagura including intellectual property rights.
(o)The agreement did not create a partnership or authorise Ms Dickerson to enter contracts on behalf of Kagura.
(p)Ms Dickerson could not assign or subcontract rights or delegate duties without Kagura’s written approval.
(q)The contract was governed by California law.
Ms Dickerson also signed a non-disclosure agreement. The agreement described Ms Dickerson as ‘the contractor’ and Kagura as ‘the client’. It protected confidential and proprietary information shared between them. Confidential information was defined to include trade secrets, marketing plans, customer details, and technical data. It required the recipient of the information to safeguard it with reasonable care, use it only for the agreed project, and return or destroy it upon request. Exclusions applied to information that was public, independently developed, or legally required to be disclosed, with the recipient obliged to notify the discloser in such cases. The agreement prohibited Ms Dickerson from soliciting Kagura’s employees or customers for two years post-termination and restricted the export of confidential information to restricted countries. Intellectual property rights remained despite disclosure, and breaches gave rise to legal and equitable remedies. The agreement is governed by California law, effective for two years after contract termination, and could not be transferred without consent.
Ms Dickerson signed a further document on 21 May 2022. That document was a form issued by the US Department of the Treasury Internal Revenue Service described as ‘W-8BEN Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (Individuals)’. It appears the form is used by individuals to certify their status as non-U.S. persons for tax purposes. By signing the form Ms Dickerson declared that she was an Australian citizen and resident, with no income effectively connected to U.S. trade or business. She claimed tax treaty benefits under Article 14, Paragraph 1 of the U.S.-Australia tax treaty, which allows a 0% withholding rate on income from independent personal services performed outside the U.S.. Ms Dickerson also acknowledged in the form that Kagura was not liable for her tax obligations.
Kagura develops and sells computer games. It has approximately 50 employees. Those employees work ostensibly online and remotely. At the time Ms Dickerson was dismissed the company had employees in Africa, Argentina, Belgium, Canada, Finland, France, Greece, Italy, Malaysia, Philippines, United Kingdom, Uruguay, and the United States of America. The work performed was described as falling within four classifications, Translator, Editor, Tester, and Technician/Software support. A Translator is Responsible for translating content in a game, an Editor performed editing tasks, which could include text or image editing. A Tester was responsible for testing video games, proofreading, editing, correcting errors, and reporting bugs. Technician/Software Developer was responsible for technical aspects of game development, such as programming and software-related tasks. Mr Dela Cruz described the contract with Ms Dickerson as a standard contract used for all of those performing work for the company.
Ms Dickerson was a tester. Ms Dickerson described her work as project based. She typically handled 2 to 3 projects a month, with 3 being unusual. She was given a set deadline for each project and was required to complete the work by that date. She worked in her home on her computer, using the company’s software platform. She chose her hours. She worked weekdays from 2 to 3 hours in the morning, 2 to 3 hours in the afternoon, and sometimes 2 hours in the evening. She sometimes worked on weekends, depending on deadlines. She was not allowed to subcontract her work to other workers without written permission. She submitted weekly reports detailing her progress, including in the report were files showing the editing, correcting, punctuation, spelling, and rewriting. The report included other tasks performed. These reports were submitted via a spreadsheet. She reported to a supervisor and she communicated with her supervisor online at least weekly to receive updates on upcoming work. She was asked to assist others if needed.
Ms Dickerson's wages were paid on a monthly basis. Initially, she was paid the part-time rate set out in the contract ($630 USD per month). After 18 months she was paid the full-time rate ($1,575 USD). This was the amount for working at least 40 hours per week. She did not record her hours or submit timesheets, and her payment did not vary based on the exact number of hours worked, or the number of projects completed. She received the same amount each month, even during slower periods when there was less work. Occasionally, during busy periods, she was paid double for her work, though this was not stipulated in the contract. Her wages were deposited directly into her personal PayPal account. She did not issue invoices.
Mr Dela Cruz acknowledged the company exercised control over data security and work processes. He stated that workers were not permitted to delegate, or subcontract work due to the security concerns held by Kagura.
In late January 2025 Ms Dickerson was concerned when she was not allocated any work. On 31 January 2025 Ms Dickerson was sent a letter as an attachment to a message sent using the Discord messaging application. It was sent by her supervisor. The letter read as follows:
RE: Termination of Independent Contractor Agreement
Dear Tabitha,
I am writing to inform you of the termination of our Independent Contractor Agreement. This
decision has been in accordance with the Independent Contractor Agreement. As an independent contractor, you have provided valuable services to our organization, and we appreciate your efforts and contributions during your tenure. Effective February 14, 2025, this termination notice will serve as the official end of our Independent Contractor Agreement.Please be advised that you are no longer authorized to represent our organization, undertake any projects on our behalf, or access or disclose our confidential information. In accordance with the terms outlined in the Independent Contractor Agreement, we will settle any outstanding invoices or payments due to you for services rendered up to the termination date. We will process the payment on February 1, 2025.
We understand that the termination of our working relationship may raise questions or concerns. If you would like to discuss any aspects of the termination, or require additional information, please do not hesitate to contact Ivan Dela Cruz via email at [email protected]. We are committed to addressing any concerns you may have and facilitating a smooth transition.
We appreciate your cooperation throughout this process.
Ms Dickerson responded to her supervisor asking why the contract was terminated. Ms Dickerson’s supervisor replied that she should contact Mr Dela Cruz whose email address was in the letter for any explanation. Ms Dickerson contacted Mr Dela Cruz but received no reply or reason.
Mr Dela Cruz described a process carried out in January 2025 by which senior managers went through the list of 50 person who were performing work from the company and decided to terminate the contracts of 2 or 3 based on feedback received. Mr Dela Cruz said that the company considered it was merely exercising its right under the contract to terminate with 14 days’ notice.
Mr Dela Cruz stated that he did not directly deal with the testing team and the reason for terminating Ms Dickerson’s contract was that there had been feedback that her work was poor. That feedback did not come from Ms Dickerson’s supervisor but others who worked in the team. No specifics of the feedback were provided. Ms Dickerson had not received any counselling, warnings or any other complaint about her work for Kagura.
Kagura has engaged two new testers since Ms Dickerson’s contract was terminated.
Consideration
Was the Applicant an employee?
Ms Dickerson makes application for an unfair dismissal remedy under Part 3-2 of the Act. Section 380 provides that Part 3-2 applies to national system employees. National system employees are defined in s. 13 of the Act as an individual so far as he or she is employed.
The test of what constitutes employment is set out in ss. 15 and 15AA of the Act. Section 15 and 15AA relevantly provide as follows:
15 Ordinary meanings of employee and employer
(1) A reference in this Act to an employee with its ordinary meaning:
(a) includes a reference to a person who is usually such an employee; and
(b) does not include a person on a vocational placement.
Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State.
(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer.
Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State.
15AA Determining the ordinary meanings of employee and employer
(1) For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.
(2) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:
(a) the totality of the relationship between the individual and the person must be considered; and
(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.
Note: This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.
The note in s. 15AA refers to High Court decisions in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek) where the High Court applied the principles of contract interpretation as the approach to determine the nature of the relationship between parties. The Court explained that earlier approaches taken in decisions in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Stevens v Brodribb) and Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (Hollis) did not depart from the long-standing approach to contract interpretation that predated those decisions, where one person had done work for another pursuant to a written contract[1]. Section 15AA sets a statutory test that requires that the real substance, practical reality and true nature of the relationship between the parties be taken into account by considering the totality of the relationship having regard to not only to the terms of the contract governing the relationship, but also to other factors relating to the relationship including, but not limited to, how the contract is performed in practice.
[1] Personnel Contracting at [45] –[57])
Consequently, for the purpose of the Act, in determining the issue of whether a person is an employee or independent contractor, the Commission is required to ascertain the real substance, practical reality and true nature of the relationship between the parties. This is consistent with the approach described in Hollis:
It should be added that the relationship between the parties, for the purposes of this litigation, is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to establishing “the totality of the relationship” between the parties; it is this which is to be considered.[2]
[2] At [24] quoted in Hollis at [24]
The approach to be taken under s. 15AA draws on the approach taken in Stevensv Brodribb and Hollis that has been described the multi-factorial test[3]. That approach was summarised by a Full Bench of the Commission in Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFB 8307 (Jiang Shen). There the Full Bench described the focus of the enquiry in Hollis as whether the person carries on a trade or business of his or her own or is working in the business of another; the nature of the work performed and the manner of its performance; and the terms of the contract between the parties.
[3] See Stevens v Brodribb at [35]; ACE Insurance Ltd v Trifunovski and Others [2013] FCAFC 3l at [9] and [102]; Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 52 at [32]. Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; 228 FCR 346 at [176]; Eastern Van Services Pty Ltd v Victorian WorkCover Authority [2020] VSCA 154 [36]; Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118 at [29].
In Personnel Contracting and Jamsek the High Court’s focus was solely on the contract between the parties. Reference to one of the factors mentioned in Jiang Shen, a consideration of one of the whether the person could be said to be working in their own business, was affirmed in Personnel Contracting where the Court said at [35]:
In this Court, the appellants submitted that the question whether a labourer is conducting his or her own independent business, as distinct from serving in the business of the employer, provides a more meaningful framework to guide the characterisation of the parties' relationship. There is force in that submission.
Another factor mentioned in Jiang Shen, is the right to control the work of a person is another indicator of an employment relationship.[4] The substance of the right to control was described by Wilson and Dawson JJ in Stevens v. Brodribb at p 35 as whether the contractual arrangement “subjects the person engaged to the command of the person engaging” not just as to what shall be done, but how it shall be done.[5]
[4] Ibid at [34].
[5] See also JMC Pty Ltd v. Commissioner of Taxation [2023] FCAFC 76 at [91].
Returning to Jiang Shen the Full Bench referred to various indicia that may be considered in assessing the nature of the relationship between parties. They include the actual exercise, or the right to exercise, control over the putative employee, whether the worker performs work for others, whether they provide tools and equipment, whether the work can be delegated, whether the worker is remunerated by periodic wages or salary or by reference to completion of tasks, and whether the worker is presented to the world at large as an emanation of the putative employer’s business. The Bench also cautioned that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Which is to say that in each case there will be some factors which weigh in favour of a conclusion that an employment relationship existed between the parties and others which point to work being performed under an independent contractor arrangement. There is no single exhaustive list of factors to be considered and the considerations and the weight to be attached to them are likely to vary depending on the facts and circumstances of each case. The exercise involves an evaluative judgment beyond the mere mechanical ticking off of indicia on a checklist and adding up the results.
Applying the test outlined in sections 15 and 15AA of the Act to the facts set out earlier requires a consideration of the totality of the relationship, including the terms of the contract and how it was performed in practice. The contract described Ms Dickerson as an independent contractor and stated that she was responsible for her own expenses, taxes, and compliance with laws. She was not eligible for employee benefits and indemnified Kagura against liability. These factors indicate a relationship of independent contractor. The description used by the parties or the manner in which they meet obligations such as taxation and workers’ compensation while indicative may not be determinative.
The practical reality is that Kagura exercised control over the work processes used by Ms Dickerson in performing the work. It was motivated by its concern for data security in requiring Ms Dickerson to use its software platform. Ms Dickerson was required to submit weekly reports, communicate with a supervisor, and assist others when needed. She was not allowed to subcontract her work without written permission, and Kagura took the view, also for data security reasons, that it would not permit such delegation. These factors indicate a level of control over how the work was performed and align with an employment relationship than an independent contractor arrangement.
Ms Dickerson worked from home using her own computer and internet connection. Kagura provided the software platform for her work, but she bore the cost of all other expenses, including travel, meals, and personnel costs, indicating an independent contractor relationship. In reality there were limited costs and expenses, Ms Dickerson worked from home, on a computer and communicated with the company using those means. There was no cause to travel to the company’s premises to incur travel or related costs.
Payment was described in the contract as being based on hours worked, with specific rates for part-time and full-time work. Ms Dickerson was paid a fixed monthly amount, US $630 initially, later US$1,575 regardless of the exact hours worked or number of projects completed. At the time she was dismissed she was a full-time rate which assumed 40 hours work per week. She did not submit timesheets, nor did she submit invoices, and her payment did not vary except during busy periods when she was occasionally paid double. She set her own hours of work. This is unsurprising given the work was performed remotely and the practical reality that the nature of the work permitted it being done in this way. The work was task based, the company and her colleagues were in different time zones and communications were electronic. These are factors that are becoming familiar with the performance of work online in an increasingly connected global economy. The payment and hours regime reflected in both the contract and the way the work was performed was not tied to specified or rostered hours but were based on an assumption that work would be done on a full time basis and 40 hours of work per week was expected. These matters point to the relationship being one of employment.
Ms Dickerson worked as one of a number of testers in Kagura's business of developing computer games. Her tasks of proofreading, editing, and reporting bugs were important to the company's operations. She reported to a supervisor and worked within a team environment, assisting others when requested. These factors indicate an employment relationship in which Ms Dickerson was integrated into Kagura's business.
While there is no evidence that Ms Dickerson was presented to the world as an emanation of Kagura's business, her work was closely tied to Kagura's operations, and she was required to safeguard proprietary information and intellectual property.
In weighing these factors and considering the relationship as a whole I consider that Kagura did exercise control over the work in a manner consistent with an employment relationship. I do not consider that Ms Dickerson can be said to have been conducting her own independent business, as distinct from serving in the business of Kagura.
I find that while the contract described Ms Dickerson as an independent contractor the totality of the relationship including an assessment of the contract and how the contract was performed in practice the evaluative judgment required under section 15AA leads to the conclusion that the relationship was one of employment. I find that Ms Dickerson was an employee.
Was the Respondent a National System Employer
Ms Dickerson’s application is made under Part 3-2 of the Act. Section 380 of the Act provides that Part 3-2 applies to national system employers and national system employees. It is not enough that Ms Dickerson is an employee she must also be a national system employee.
Section 13 of the Act defines a national system employee as follows:
A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.
Whether Ms Dickerson was a national system employee turns on whether her employer, Kagura, was a national system employer.
Relevantly, s. 14(1) defines a national system employer as follows:
(1) A national system employer is:
(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or …”
Section 12 defines constitutional corporation as follows:
"constitutional corporation" means a corporation to which paragraph 51(xx) of the Constitution applies.
Paragraph 51(xx) of the Constitution reads:
(xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
The High Court of Australia considered the meaning of foreign corporation in New South Wales v The Commonwealth (1990) 169 CLR 482 (the Incorporation Case). The Court said:
7. The power conferred by s.51(xx) is not expressed as a power with respect to a function of government, a field of activity or a class of relationships but as a power with respect to persons, namely, corporations of the classes therein specified: Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR 169 at pp 181, 216, and The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at pp 157, 202, 240, 269, 314. The Commonwealth contention is that the words "formed within the limits of the Commonwealth" serve merely to distinguish local trading or financial corporations from foreign corporations. No doubt the words do serve that function but their plain meaning goes beyond the mere drawing of that distinction. The expressions "trading or financial" and "formed within the limits of the Commonwealth" serve to restrict the classes of domestic corporation which can be the subject of Commonwealth power. To fall within one limb of the power, a corporation must satisfy two conditions: it must be formed within the limits of the Commonwealth and it must be a trading or financial corporation. To fall within the other limb, a corporation must be a foreign corporation, that is, a corporation formed outside the limits of the Commonwealth. The distinction based on the place of formation is obvious, but the basis of the distinction is formation.
In an earlier case before the High Court in Bank of N.S.W. v. The Commonwealth (1948) 76 CLR 1, at p 202, Latham C.J. said of s.51(xx):
The one thing that is clear about it is that the provision assumes the existence of corporations either under foreign law or under some law which is in force in the Commonwealth.
Kagura submitted that it is not a national system employer, Mr Dela Cruz described Kagura Games LLC as an American limited liability company governed by the law of the State of Nevada. Kagura Games LLC is domiciled in the United States of America. Kagura Games LLC does not have any assets within Australia, nor does it have any physical presence in Australia. Kagura submitted that it does not do business directly in Australia. Its product is a digital asset, video games, and is available for sale on the video game platform Steam. Steam sells video games worldwide, which includes to consumers in Australia. Mr Dela Cruz confirmed that Steam does sell its computer games in Australia and said that those sales amounted to $90,000.00 in 2024. I find that contrary to Kagura’s submission whether directly or not it does business in Australia.
The question of whether Kagura is a foreign corporation is straightforward. Kagura having been formed in the United States is a corporation formed outside the limits of the Commonwealth. Placitum 51(xx) of the Constitution applies to it for the purpose of meeting the definition of constitutional corporation in s. 12 of the Act. I have found that Ms Dickerson was an employee of Kagura. Consequently, and for the purpose of meeting the definition of national system employer in s. 14(1), it is a constitutional corporation which employed or an individual, Ms Dickerson. As Kagura is a national system employer Part 3-2 of the Act applies to Kagura pursuant to s. 380 of the Act. Ms Dickerson having been employed by Kagura meets the description of a national system employee.
Was the dismissal harsh, unjust or unreasonable?
Ms Dickerson claims that her dismissal was unfair. To bring her claim she needs to have been protected from unfair dismissal. Whether someone is protected from unfair dismissal is governed by s. 382 of the Act. For the purposes of s. 382(a) there was no contest, and I find, that Ms Dickerson served the minimum employment period. The minimum employment period is 6 months. Ms Dickerson commenced employment in May 2022. She was dismissed in January 2025. The second factor in s. 382 is whether the employment was covered by an award agreement or was below the minimum income threshold. The threshold in January 2025 was $175,000. Ms Dickerson earned below the threshold and so the requirement in s. 382(b) is met.
The next question is whether Ms Dickerson was unfairly dismissed within the meaning of s. 385. For the purposes of s. 385(a) Ms Dickerson was dismissed. This was not disputed and so much is clear from the letter from Kagura dated 31 January 2025. There was no suggestion that Kagura was a small business nor that the dismissal was a genuine redundancy so the exclusions in s. 385 (c) and (d) do not arise. The question left to be determined is the question posed by s. 385(b), whether the dismissal was harsh, unjust or unreasonable. In considering that question I must take into account the matters set out in s. 387 of the Act
Ms Dickerson was dismissed following a meeting of senior managers which conducted a review of the list of all of Kagura’s workers. The managers based their decision to dismiss Ms Dickerson on feedback from others that her work was poor. No details were given in the proceedings of poor performance. It was uncontested that Ms Dickerson had never been warned or counselled concerning her conduct. The letter of termination recorded that she had provided valuable services to the organisation, and her efforts and contributions during her tenure were appreciated. In the absence of any evidence of poor performance or misconduct I find, for the purpose of s 387(a), that there was no valid reason for the dismissal. As there was no valid reason s 387(b), which goes to whether the employee was notified of the valid reason related to capacity or conduct, is not relevant.
Ms Dickerson was given no reason for the dismissal. Having regard to subsection 387(c) and (d), Ms Dickerson was not given an opportunity to respond to any reason and was not permitted to have a support person when discussing the dismissal. There was no discussion.
Subsection 387(e) goes to warnings about unsatisfactory performance. The brief account of the meeting that selected Ms Dickerson for dismissal suggested that the managers considered Ms Dickerson’s work to be poor suggesting that the dismissal was performance related. Ms Dickerson was not given an opportunity to address any assertion that her performance was poor.
Section 387(f) goes to the size of the enterprise. Given the manner in which the dismissal arose I do not find this to be a relevant factor.
Section 387(g) goes to whether dedicated human resource management specialists or expertise would likely impact on the procedures followed in effecting the dismissal. I was not told whether Kagura has dedicated human resource specialists. If it did, I expect it would have taken the course that it did in any event, as it was under the understanding that Ms Dickerson only had the rights described in her contract. So much is evident from the observation made during the proceedings by Mr Dela Cruz about the approach taken to dismissals in Australia compared to the United States:
I guess for me it's a little, maybe it's a bit different. In terms of culture between Australia and the United States, so. You know, I, to be honest with you, I wish the United States was as diligent as you guys were are on these unfair dismissals.
Section 387(h) requires the Commission to consider any other matter it considers relevant. Relevant here is the fact that Kagura did not understand that it had any obligations to act fairly in its dismissal of Ms Dickerson. Mr Dela Cruz accepted the proposition that the company’s case depended entirely on the legal arguments as to whether Ms Dickerson was an employee and Kagura was a national system employer and that if those arguments failed it was likely that a finding would be made that she was unfairly dismissed.
After considering all of the matters in s. 387, I find that Ms Dickerson’s dismissal was harsh, unjust and unreasonable. Kagura did not have a valid reason for dismissing her. It failed to provide her with an opportunity to respond to any suggestion that her work was poor, and it dismissed her without having any discussions about its intention to do so. It proceeded on the basis that its decision could not be challenged.
Remedy
Section 390 provides that where the Commission is satisfied that a person was protected from unfair dismissal at the time of being dismissed and the person has been unfairly dismissed it may order the person’s reinstatement. The Commission must not order reinstatement if it considers it inappropriate to do so.
In considering whether reinstatement is an appropriate remedy regard must be had to the legislative object set out in s. 381 of the Act. This includes an emphasis on the remedy of reinstatement and on ensuring that a “fair go all round” is accorded to both the employer and employee concerned.
Ms Dickerson asks for compensation for the way she was mistreated. She would also like an apology. She also seeks that Kagura recommend her to other companies in the industry to enable her to gain further employment. She has had no earnings since she was dismissed. She does not seek reinstatement because she believes she might be treated poorly by the company or given no work. Mr Dela Cruz said that there were currently no positions available for a tester in the business making reinstatement difficult. Mr Dela Cruz also stated that the company employs two testers per year. He also said a number of testers were engaged by Kagura and I find that the relative inconvenience of accommodating Ms Dickerson’s reinstatement to be minimal in those circumstances.
I find it appropriate to award the primary remedy of reinstatement and will order Kagura to reinstate Ms Dickerson. I do not believe that Ms Dickerson’s concern that she will be mistreated is a valid concern. The company has engaged in these proceedings in a professional manner and has been frank that the decision to dismiss was based on the belief that it was entitled to terminate Ms Dickerson’s contract for cause. Mr Dela Cruz was frank in explaining the basis for the dismissal and in stating that the company applied US practices which do not provide for a means to scrutinise dismissals in the manner provided for by the Fair Work Act. I did not detect any malice in the actions of the company. I do not anticipate that the company will mistreat Ms Dickerson on her reinstatement. She is to be reinstated to the position she held before her dismissal. That position involved her performing a full-time workload with no capacity for her to be given no work as anticipated by Ms Dickerson.
Section 390 also provides for orders of continuity of service and restoration of lost pay. I consider it is appropriate in this case to also make an order for continuity of service and for lost pay. Ms Dickerson has had no earnings since the dismissal and so I will make an order for payment of 6 months’ pay at US$1,575.00 per month or US$9,450.00.
Conclusion
I find that Ms Dickerson was an employee. I also find that Kagura was a national system employer. I find that Kagura unfairly dismissed Ms Dickerson and that it is appropriate that she be reinstated with continuity of service and backpay.
Orders giving effect to this decision will be published separately.
DEPUTY PRESIDENT
Appearances:
Ms B Franco-Castello the Applicant
Mr I Dela Cruz for the Respondent
Hearing details:
12 June 2025
Via Microsoft Teams Video
Printed by authority of the Commonwealth Government Printer
<PR790175>
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