A legal assistant in the Philippines who worked remotely for a Queensland firm will receive $10,800 in compensation for unfair dismissal, following a Fair Work Commission ruling that she was an employee under the legislation.
In the Commission in Sydney last month, Strathpine credit repair firm MyCRA Lawyers was ordered to pay Joanna Pascua the equivalent of 15 weeks’ wages following its failed appeal of the Commission’s earlier decision that she was an employee and not an independent contractor.
In the appeal, firm principal Graham Doessel had unsuccessfully argued that Ms Pascua was not a national system employee for the purposes of the Fair Work Act 2009 (Cth) and therefore was not able to apply for an unfair dismissal remedy in relation to her sacking by him in March last year.
In his September decision, Deputy President Slevin pointed to factors including Ms Pascua’s use of a company phone account and email signature block; her low rate of remuneration; her weekly payment at an hourly rate; and that her work met the description of Legal Clerical and Administrative employee under the Legal Services Award.
“Having considered the terms of the contract I am required to make an overall assessment of the nature of the relationship by reference to the rights, obligations and duties created by it,” he said at the time.
“My overall assessment of the rights and obligations created by the contract is that the arrangement entered into was an employment arrangement, not one of principal and independent contractor.
“The contract required Ms Pascua to perform work in the business of another. The work could not be assigned to someone else. The contract required that she perform it. The nature of the work was paralegal work. It was not work involving a profession, trade or distinct calling. It was paid at a rate below the minimum wage.”
From July 2022, Ms Pascua had worked from her home in the Philippines, doing hours which matched business hours in Australia. She was allocated files by MyCRA Lawyers and was required to liaise with the firm’s clients and credit providers, via phone and email.
She was paid $18 an hour, capped at eight hours a day across five days, amounting to $720 a week.
In the decision handed down in Sydney last month, Deputy President Slevin said he was satisfied that Ms Pascua was an employee within the meaning of s 385 of the Act, and that her dismissal was harsh, unjust and unreasonable.
Ms Pascua gave evidence that in the seven months leading up to her dismissal in March 2024, Mr Doessel was micromanaging her work, being overly critical of her, overworking her, setting unreasonable expectations and refusing to approve overtime.
She described how on the day of her dismissal, her supervisor remotely accessed her computer and looked through her files.
She said when she complained that her workload was excessive and leading to mistakes, Mr Doessel told her she was “talking like a crazy woman” and recommended she seek psychological help.
“Mr Doessel alleged that Ms Pascua had committed cybercrime and that if he was not permitted to look through her computer the alternative was that he contact the Australian Federal Police who would contact the Philippine police who would throw her in gaol for theft,” Deputy President Slevin said.
Ms Pascua’s notice of termination stated she was dismissed for poor performance in making repeated mistakes, failing to follow procedures, and failing to follow instructions.
“Poor performance can ground a valid reason for dismissal. Where that poor performance occurs repeatedly, against firm instruction to improve, combined with assistance to do so, then it there will undoubtedly be a valid reason for dismissal,” Deputy President Slevin said
“My assessment of the circumstances however leads to the conclusion that this was not the case here.”
He said he did not consider there was a pattern of poor performance, and that there was little evidence of help provided to Ms Pascua to improve her performance to meet the firm’s expectations.
He also considered other factors under the Act, including that no formal warning had been given to Ms Pascua about unsatisfactory performance.
“I believe that the procedure followed in effecting the dismissal was unfair. Mr Doessel rang Ms Pascua over mistakes on a particular file. He dismissed her immediately. He was unreceptive to her explanations for the error. He was also dismissive of her complaints about being overworked and undertrained. He then proceeded to inspect her computer remotely without her consent.
“These matters indicate that Mr Doessel’s decision to dismiss Ms Pascua was made in an agitated state and done without the careful consideration that should accompany a decision to dismiss someone.”
Deputy President Slevin concluded reinstatement was not an appropriate remedy and that 15 weeks’ pay was an appropriate amount in compensation having regard to all the circumstances of the case.
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