Law firm urges employers to review offshore contracts after FWC jurisdiction ruling
The Fair Work Act 2009 can apply to employees who have never set foot in Australia and whose work is carried out entirely overseas, according to law firm Hall & Wilcox, which warned employers against assuming that local laws in an employee's country will operate to the exclusion of Australian legislation.
The warning follows a recent Fair Work Commission decision, Sanderson v Brightest Australia Pty Ltd [2026] FWC 1633, in which a New Zealand-based employee was found to have access to the FW Act's unfair dismissal jurisdiction.
David Sanderson, who lived and worked in New Zealand selling a subscription-based app product to New Zealand customers, lodged an unfair dismissal application against Brightest Australia after his employment was terminated for alleged underperformance.
Deputy President Farouque held that Sanderson was an Australian-based employee under the FW Act because he was employed by an Australian employer and his contract of employment was formed in Victoria.
Despite Brightest's status as a small business employer, the FWC ruled that the company breached the Small Business Fair Dismissal Code. Sanderson was never clearly warned that he could lose his job if his performance did not improve, nor was he given a genuine chance to respond before the company moved to terminate him, leading the FWC to conclude the dismissal was harsh, unjust, or unreasonable.
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