In a recent decision the Fair Work Commission found that a New Zealand resident who was employed by an Australian company as a salesperson in New Zealand was eligible to apply in Australia for unfair dismissal.
The Facts
The employer was a company formed in Australia that built applications for mobile phones which were sold by monthly subscription plans.
The employee, who resided in New Zealand, was employed on 16 September 2024 to sell the employer’s services in New Zealand.
On 8 December 2025 the employer sent an email to the employee that notified immediate dismissal for underperformance.
The employee applied for unfair dismissal under the Fair Work Act 2009 (Act).
Jurisdictional issue
The first issue for the Fair Work Commission to determine was whether the unfair dismissal jurisdiction of the Act applied.
The Fair Work Regulations (Regulations) provides that the Act’s unfair jurisdiction extends outside Australian territorial limits for “an Australian-based employee in relation to the employee’s Australian employer”.
The Act defines an “Australian employer” as including “a trading corporation formed within the limits of the Commonwealth”.
The Act defines an “Australian-based employee” as including an employee who is employed by an Australian employer, but excludes “an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories”.
The Hearing
The Deputy President found that the employee was employed by an “Australian employer”, to perform work outside Australia and its external territories.
The remaining question was whether he was “engaged outside Australia”, which required determining where the employment contract was formed.
The evidence was that the employment agreement was made by a chain of emails in which:
- The employer emailed the employment agreement to the employee, who signed most of the pages on 8th December 2024 and emailed it back to the employer,
- The employer signed the copy on 10th December 2024 but noticed the unsigned page and emailed it back to the employee, who signed the page on 12th September 2024.
The Decision
The Deputy President noted that under the applicable electronic transactions legislation, the place of “receipt” of a document is where the “contract is made”.
The Deputy President found that:
- The employee accepted the employer’s offer of the employment agreement by sending his email on the 10 September 2024.
- The act of acceptance occurred upon the employer, which was located in Victoria, receiving that email, so that the contract was formed in Victoria on the 10 September 2024.
- Therefore he was an “Australian-based employee”, and was eligible to apply for unfair dismissal.
Implications
An employee who lives and works overseas may still be eligible to apply for unfair dismissal, if engaged by an Australian-based employer and the employment contract is formed in Australia.
Employers with overseas-based employees should ensure they understand when Australian employment laws may apply.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.