Offshore employee wins ‘Australian-based’ status in unfair dismissal application
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An employer has lost its jurisdictional objection case after a Philippines-based worker claimed unfair dismissal under Australian law and succeeded in her claim that she was an “Australian-based employee” based on her contractor agreement.
The Australian operations for businesses with a separate American business entity, The Trustee for Bicycles Online Unit Trust trading as BikesOnline Australia, has lost its jurisdictional objection against an independently contracted offshore accountant, after the Fair Work Commission (FWC) ruled that she was considered an Australian-based employee despite never setting foot in Australia.
The accountant, Filipino national Sheena Digo, lodged an unfair dismissal application after she was dismissed for alleged breaches of BikesOnline Australia’s confidentiality, general conduct, and non-disparagement policies.
Digo had never been to Australia, nor did she hold an Australian visa at any time.
She was a qualified accountant who attained a bachelor of science in accountancy (University of Batangas) and a bachelor’s degree in accountancy from Lipa City Colleges and holds a certified practising accountant (CPA) licence in the Philippines, attained in 2016.
“The respondent is a bicycle retailer established in June 2013. Its business is entirely online, without any physical shops. Through its website, the respondent sells and distributes bicycles, parts, accessories, and clothing directly to customers,” FWC deputy president Gerard Boyce said.
“It has an Australian business entity, as well as a separate United States of America business entity, both of which have employees in Sydney and Carlsbad (Northern San Diego County, California), respectively.”
Initial contractor agreement
While Boyce determined that Digo was an Australian-based employee, he noted that Digo had been a contractor when the company first engaged her, on a platform called Upwork.
Working for BikesOnline Australia since 12 April 2017, she was engaged as a full-time bookkeeper with the respondent.
“Upwork is an online platform connecting relevant qualified freelance labour with clients,” the deputy president said.
“Apart from the removal of Upwork, little changed. The applicant continued to invoice the respondent for the same hours worked each week, just as she had been doing previously through Upwork.”
After five years working directly with BikeOnline Australia as a full-time bookkeeper, she signed a contractor agreement for accounting services in December 2024 (2024 agreement) with the company and was promoted the next year to senior accountant through a new contractor agreement (2025 agreement).
The contracting employee
While Digo signed two contractor agreements in 2024 and 2025, the deputy president posited that her employment relationship with BikesOnline Australia was that of an employee-employer relationship.
“The evidence discloses that the respondent directed the applicant in relation to the times she was required to work, and the tasks she needed to focus upon, frequently. Such frequency tends toward an employment relationship being in existence,” the deputy president said.
Further, Boyce found that in addition to being subject to annual performance reviews, Digo was required to obtain approval for leave, which was laid out in the agreement consistent with the requirements for taking leave that would apply to an employee.
The way contractors get paid is through submitting invoices; and while this is exactly what Digo did to receive remuneration from BikesOnline Australia, Boyce said that although they were “invoices” by name, the payment arrangement was not too different to that of an employee.
“To the extent the applicant has supplied invoices to the respondent, such invoices are merely a reflection of the hours worked set out in her timesheet. This is not consistent with an independent contracting engagement,” the deputy president said.
Upon consideration of the evidence, Boyce tossed BikesOnline Australia’s jurisdictional objection to Digo’s unfair dismissal application, finding that the “essence” of the relationship between the company and Digo was one of employment, and that she was an “Australian-based employee”, as the “place” where the 2025 agreement was made was Australia.
“Just as receipt of acceptance occurred electronically (in Sydney, New South Wales, Australia), the written offer to enter into the 2025 agreement was sent electronically (from Sydney, New South Wales, Australia),” Boyce said.
“I note clause 11.8 of the agreement in relation to the governing law of the 2025 agreement being New South Wales, Australia, as well as clause 11.9 regarding notices (albeit under the 2025 agreement) being duly served at the time of transmission.”
The case citation: Sheena Digo v The Trustee for Bicycles Online Unit Trust trading as BikesOnline Australia (C2025/11633).
RELATED TERMS
An employee is a person who has signed a contract with a company to provide services in exchange for pay or benefits. Employees vary from other employees like contractors in that their employer has the legal authority to set their working conditions, hours, and working practises.
When a company terminates an employee's job for improper or illegitimate reasons, it is known as an unfair dismissal.
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