Ms Tabitha Dickerson v Kagura Games Llc - [2025] FWC 2219

[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…

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] FWC 2219
Decision Date: 1 AUGUST 2025

CaseChat Overview and Summary

Ms Tabitha Dickerson, the applicant, brought proceedings against Kagura Games Llc, the respondent, in the Fair Work Commission seeking a remedy for unfair dismissal. The respondent is a foreign corporation with operations in Australia, and the dispute arose from the termination of Dickerson’s employment. The central issue before the Fair Work Commission was whether the respondent was a national system employer and whether Dickerson was an employee rather than an independent contractor, as well as whether the dismissal was unfair due to the absence of a valid reason.

The Commission first had to determine whether the respondent was a national system employer, which would give it jurisdiction to hear the case. The respondent contended that it was not a national system employer because it was a foreign corporation and that its operations in Australia were limited to publishing and distributing video games. The Commission found that the respondent’s activities in Australia were extensive enough to classify it as a national system employer. Furthermore, the Commission examined the nature of the relationship between Dickerson and the respondent, considering whether Dickerson was an independent contractor or an employee. By evaluating the real substance, practical reality, and true nature of their relationship, the Commission concluded that Dickerson was indeed an employee under section 15AA of the Fair Work Act.

Having established that the respondent was a national system employer and that Dickerson was an employee, the Commission proceeded to determine whether the dismissal was unfair. The respondent argued that the dismissal was justified due to operational restructures and financial considerations. However, the Commission found that the respondent failed to provide adequate evidence to support a valid reason for the dismissal. Consequently, the Commission ruled that the dismissal was unfair and ordered the respondent to reinstate Dickerson to her former position. The Commission's decision highlighted the importance of substantiating reasons for dismissal and the need for employers to carefully consider the true nature of employment relationships when making termination decisions.

Orders