Fair Work grants overseas worker’s unfair dismissal claim

The Fair Work Commission has given the green light for a Philippines-based worker to pursue an unfair dismissal rights claim. The employer tried to argue that the worker was not entitled to their workplace rights. But the commission’s decision shows that employers can’t simply deny the rights of employees – even if they’re based overseas.

In this article, we look at the events of this case – Ms Joanna Pascua v MyCRA Lawyers [2024]. We also share the story of a migrant cleaner in the UK who was dismissed for eating a leftover tuna sandwich. 

Employer attempts to deny overseas paralegal’s unfair dismissal rights

Joanna Pascua commenced work for MyCRA Lawyers in July 2022 as a paralegal. The firm specialises in credit repair and is owned by Queensland law firm The Doessel Group. 

Ms Pascua performed her role remotely from her home in the Philippines. Her job involved performing legal research and drafting legal documents. She also carried out case preparation and administrative duties, among other tasks.

In March 2023, she was dismissed by MyCRA Lawyers. In her unfair dismissal rights claim, Ms Pascua claimed she was sacked for breach of contract. She argued that it came after seven months of her employer “being overly critical of her work, overworking her, setting unreasonable expectations and refusing to approve overtime.”

Law firm claims foreign worker wasn’t an employee

The Doessel Group, however, contended that it had not sacked Ms Pascua. The firm argued it had merely ended her independent contractor agreement due to an alleged breach of contract. 

According to the firm, Ms Pascua had unlawfully transferred confidential company and client information to her personal storage, a claim she refuted. The Doessel Group also argued that as an overseas-based contractor, the paralegal was outside the jurisdiction of the Fair Work Commission. The firm therefore argued that her contract termination could not be contested under Australian unfair dismissal rights laws.

Was she an employee or independent contractor?

A central issue in the case was whether Ms Pascua was an employee of MyCRA Lawyers or an independent contractor, as the law firm claimed. The distinction is significant, as only employees are covered by the protections against unfair dismissal rights under the Fair Work Act. Independent contractors, who typically operate their own businesses and have greater control over how they work, are generally not afforded these protections.

The Fair Work Commission noted that the paralegal’s contract was inconsistent in its terminology. It found that the contract referred to her at various points as both an employee and an independent contractor. 

However, the title of the agreement alone was not considered “determinative”. The Fair Work Commission stated that what mattered was the actual nature of the working relationship, not the labels used in the contract.

Fair Work finds indicators of employment

Critical to this unfair dismissal rights case was the Fair Work Commission’s assessment of the practical aspects of Ms Pascua’s contract. It outlined a range of tasks that she was expected to perform, including legal research, case preparation, admin tasks and following up with clients. She was also required to meet specific key performance indicators each day and complete ad hoc duties as directed by the firm.

These obligations, the Fair Work Commission found, pointed more toward an employment relationship than a contractor one.

“Administration, following up clients and performing ad hoc duties as required suggest work being done within another’s business rather than within an independent business being conducted by the paralegal,” the commission observed.

Other factors also suggested Ms Pascua was an employee. The firm required her to use a MyCRA Lawyers email signature and provided her with a phone account that identified her as calling from its office.

The Fair Work Commission noted that these requirements indicated that she was performing work on behalf of the law firm, rather than operating independently.

Contract terms and contractor-like provisions

Despite these indicators of employment, certain terms in the contract did suggest an independent contractor arrangement.

For example, the contract included clauses that indemnified the law firm from any liability for injury or death occurring during the performance of work. Also, from any damages or claims that might arise in connection with the contract. These provisions are more typically found in contracts with independent contractors.

However, the Fair Work Commission concluded that these clauses alone did not negate the overall picture of an employment relationship. He emphasised that the key consideration was the extent of control the employer exercised over Ms Pascua’s work. And, whether she was operating as part of the business, rather than independently.

Worker was paid below award standards

Another key factor influencing the Fair Work Commission’s ruling was the rate of pay Ms Pascua received. She was paid $18 per hour for a 40-hour week, invoicing the law firm weekly for her time.

The law firm argued that this payment arrangement was typical of a contractor relationship. However, the Fair Work Commission found that the low rate of pay was more indicative of employment, particularly when compared to the relevant award rate.

Under the Legal Services Award, Ms Pascua would have been entitled to $24.76 per hour, with casual employees earning $30.95 per hour. The commission noted that contractors are typically paid higher rates than employees, to compensate for the lack of employment entitlements.

 The Fair Work Commission concluded that Ms Pascua “was not engaged…on a contract basis but rather…to perform work as directed, consistent with employment.”

Fair Work rules unfair dismissal rights claim can proceed

The Fair Work Commission therefore found that Ms Pascua fell under the protection of the Fair Work Act and therefore is entitled to pursue her claim of unfair dismissal rights claim.

“This was an employment arrangement, not one of principal and independent contractor,” the commission said.

As the case moves forward, the Fair Work Commission will next consider whether the paralegal’s sackingwas unfair. This will potentially set further precedents for how overseas workers are treated under Australian employment law.

Cleaner dismissed for eating leftover sandwich sparks legal action and protests

Another unfair dismissal case that highlights the challenges faced by foreign workers made global news headlines in February 2024. A single mother from Ecuador, Gabriela Rodriguez was fired in 2023 from her cleaning job in the UK for eating a leftover tuna sandwich. For over two years she had been employed by Total Clean, which had a contract to clean the offices of a law firm.

Mr Rodriguez had found the sandwich, worth about AU$3, in a meeting room. The United Voices of the World union, which has taken up her unfair dismissal rights cause, said the sandwich was due to be thrown away. The union argues that her sacking was unfair and discriminatory, led to protests outside the law firm’s London offices.

Ms Rodriguez has contested the decision, arguing that the sandwich was left to be discarded and that she had no intention of committing theft.

“I couldn’t believe it. They told me it was because I had taken a sandwich without permission, and I spent the rest of the day in a state of total shock,” Ms Rodriguez told media.

Clearner dismissed for ‘theft of client property’

Total Clean claimed that the leftover sandwich was in fact property of the law firm. Accusing Ms Rodriguez of theft, company subsequently launched an investigation, which led to her dismissal. Speaking to media, a spokesperson for Total Clean defended the company’s actions, stating, “All steps taken have been in accordance with UK employment law following the proper investigative and disciplinary process.”

Union left cans of tuna in law firm’s reception

The United Voices of the World union represents a large number of migrant workers in the UK’s cleaning sector. Following Ms Rodriguez’ sacking, it staged protests outside the law firm’s London offices. The union organised a demonstration that included leaving 300 tuna sandwiches and 100 cans of tuna at the law firm’s reception.

The union’s general secretary Petros Elia voiced its concerns over the treatment of cleaners in the UK. He stated, “Cleaners are routinely dismissed on trivial and, we argue, discriminatory grounds like this every day around the country. Many describe feeling treated ‘like the dirt they clean,’ and Gabriela is one of them.”

Law firm denies requesting dismissal

While the law firm faced protests, it told media that it never made a “formal complaint” against Ms Rodriguez. The firm emphasised that it did not “ask for any action to be taken against her.”

The firm clarified that Total Clean conducted its own investigation independently and that it had no input into the decision.

“We have made clear to Total Clean that we would not object – as we never have done – to Gabriela attending and working on our premises if Total Clean changes its position,” the firm’s spokesperson said.

Despite this, the United Voices of the World union criticised the firm for not showing greater support for Ms Rodriguez. The union claims that the firm “refused to support Gabriela’s case” despite being approached directly. In response, the law firm has maintained that the matter is a private one between Total Clean and Ms Rodriguez.

Union argues dismissal motivated by discrimination

The United Voices of the World union has also alleged that Ms Rodriguez was targeted due to her background and limited English skills. The union suggested that if she were not from Latin America, the situation may have been handled differently. 

Union to contest sacking in court

The United Voices of the World union has vowed to continue fighting for Ms Rodriguez. It has initiated legal proceedings on behalf of Ms Rodriguez. It is seeking to have her reinstated and compensated for what it describes as “unfair and inhumane treatment.”

Total Clean has defended its actions throughout the process, with the company’s management emphasising that the dismissal was handled according to legal protocols. The company told media that it “is important to us to maintain the integrity of our workforce and service by ensuring we deal appropriately with any actions that undermine the hard work and reputation of our incredible team.” 

The sacking has raised broader questions about the treatment of low-paid workers, particularly those in the cleaning industry. Many of these workers are often employed by third-party contractors. 

In the meantime, Ms Rodriguez remains out of work. The outcome of her case could have significant implications for similar disputes involving outsourced workers in the UK.

Have you been unfairly dismissed?

If you have faced unfair dismissal, disclination, adverse action or another workplace rights violation, call us today. Our team at A Whole New Approach are feared by employer across Australia for our work helping employees take action through the Fair Work Commission.

With a private and free initial consultation, we can help you understand your unfair dismissal rights and how to take action. We can also represent you at the Fair Work Commission to ensure you get what you deserve – whether it’s reinstatement or compensation.

We offer a no win, no fee service, and our expertise is backed by over three decades of experience helping over 16,000 Australian workers. We understand the ins and outs of the Fair Work Commission and know how to get the best result.

Don’t hesitate to call us today on 1300 766 700. Act fast as you only have 21 days from the date of your dismissal to make a Fair Work Commission claim.