Can An Overseas Worker Make a Fair Work Unfair Dismissal Claim?

The Fair Work Commission has handed an unfair dismissal victory to an employee of a Melbourne company who lived and worked in New Zealand. The employee was dismissed via text after failing to meet sales targets. The Commission found he was entitled to make a Fair Work claim because his signed employment contract was received by email at the company’s Victorian office. This meant that the contract was legally formed in Australia. The worker’s termination was ruled unfair as he was denied procedural fairness.

In this article, we look at the events of this unfair dismissal VIC case: David Sanderson v Brightest Australia Pty. Ltd. [2026] . Later, we examine why Fair Work ruled that a US national who had never set foot in Australia was allowed to pursue a general protections claim.

Case summary: David Sanderson v Brightest Australia Pty Ltd [2026]

• Jurisdiction: Fair Work Commission Victoria.
  
  
• Key employee argument: As a New Zealand-based employee of an Australian company, he was entitled to Fair Work unfair dismissal protections. He was denied procedural fairness and his failure to meet sales targets was driven by poor marketing leads.
  
  
• Key employer argument: The worker was not entitled to make a Fair Work unfair dismissal claim as he lived and worked entirely in New Zealand. He was fairly terminated for failing to meet sales targets.
  
  
• Fair Work outcome: Worker was found to be an Australian-based employee because his signed employment contract was received by email at the company’s Victorian office. The dismissal was ruled unfair due to procedural deficiencies.

NZ employee wins Fair Work unfair dismissal despite never working in Australia

David Sanderson, who lived and worked in New Zealand, started working for Melbourne-based app development company Brightest Australia on 16 September 2024. The company engaged Mr. Sanderson to sell its subscription service Flexi Plan to New Zealand customers. His employment contract contained two clauses outlining the disciplinary process for underperformance.

Clause 13 required a verbal warning for a first offence and a written warning for a second. Termination of employment could only happen once those warnings had been dispensed. Clause 24, however, created a parallel pathway. It provided that if the worker failed to meet monthly sales targets, the company could terminate his employment on one week’s written notice.

‘Performance warning’ emails sent — but no mention of dismissal

Over his 15-month employment, Mr. Sanderson’s contract required him to generate 75 Flexi Plan sales. He said he achieved 32, though some did not result in customers payments. Mr. Sanderson argued he could not meet targets due to the quality of leads generated by Brightest Australia’s advertising.

In July 2025, Mr. Sanderson’s boss sent him two emails with the subject line “Performance Warning.” The first highlighted that only one Flexi Plan had been signed in each of the previous two months. Mr. Sanderson replied, saying that he had been unwell and that the quality of leads was “quite low.” He told his boss “we can’t produce wine from water.”

On 8 December 2025, Mr. Sanderson was summarily dismissed via text. He then received an email confirming his termination of employment. Brightest Australia cited his inability to meet the expectations of his role. He received one week’s pay in lieu of notice. Mr. Sanderson was not called to a meeting before the decision was made. He was given no opportunity to respond, and was not taken through any step of the clause 13 disciplinary procedure.

Why did the worker argue he had faced unjustified dismissal?

Mr. Sanderson argued the following in his Fair Work unfair dismissal claim:

• He was never warned that his employment was at risk of termination if his performance did not improve.
  
  
• The two “Performance Warning” emails made no mention of the possibility of dismissal.
  
  
• He was given no opportunity to respond to the prospect of dismissal.
  
  
• He was not taken through the disciplinary procedure set out in his contract.
  
  
• His failure to meet sales targets was not due to poor performance but to the low quality of marketing leads.
  
  
• Some sales had failed after customers were handed to a colleague.
  
  
• The two other Australian-based sales employees were also not meeting their targets.

Company argued NZ-based worker could not lodge Fair Work unfair dismissal claim

In response to Mr. Sanderson’s Fair Work unfair dismissal claim, Brightest Australia filed a jurisdictional objection. It argued the Fair Work Commission had no power to hear it. This was because Mr. Sanderson lived and worked entirely in New Zealand and performed no meaningful work in Australia. Brightest Australia therefore contended that Mr. Sanderson fell outside the reach of the Fair Work Act 2009.

On the merits of his claim, the company maintained that it had warned him about his performance in the July 2025 emails, in addition to verbal warnings. The company contended that Mr. Sanderson’s sales figures were too low to justify his continued employment.

Why did Fair Work rule that an overseas worker could make an unfair dismissal claim?

The Fair Work Commission heard Mr. Sanderson’s Fair Work unfair dismissal claim in May 2026. It ruled that he did have the right to make the claim based on the following findings:

• Brightest Australia was an “Australian employer” under section 35(1) of the Fair Work Act 2009.
   
• Mr. Sanderson met the definition of an “Australian-based employee” under section 35(2)(b) because he was employed by an Australian employer.
  
  
• The section 35(3) exclusion — which removes employees engaged outside Australia to perform duties outside Australia — required both limbs to be satisfied. While Mr. Sanderson satisfied the first limb (he performed his duties in New Zealand), the second limb required examination of where the contract was formed.
  
  
• Applying the Electronic Transactions Act 1999 (Cth) and the Electronic Transactions Act 2000 (Vic), the place where a contract is formed by email is the place where the acceptance is received.
  
  
• Mr. Sanderson signed and emailed his employment contract to Brightest Australia by email in September 2024. The company received that email in Victoria, Australia.
  
  
• Because the second limb of the section 35(3) exclusion was not satisfied, Mr. Sanderson was an “Australian-based employee.”

Why did the Fair Work Commission rule that the dismissal was unfair?

Having confirmed jurisdiction, the Fair Work Commission found that Brightest Australia had not complied with the Small Business Fair Dismissal Code. It ruled that the dismissal was harsh, unjust and unreasonable for the following reasons:

• The two “Performance Warning” emails were not valid warnings under the Code. They were “more in the nature of an exhortation to improve” rather than a warning that dismissal could result.
  
  
• The CEO could not give specific dates or occasions on which he had given Mr. Sanderson verbal warnings.
  
  
• Mr. Sanderson was not invited to a meeting before the decision to terminate was made. He was also not given any opportunity to respond to the prospect of dismissal.
  
  
• While Fair Work accepted that the low sales figures were a valid reason for dismissal existed, the manner of dismissal was procedurally deficient.
  
  
• The significant cause of the sales shortfall was the quality of leads generated by the company’s marketing, rather than Mr. Sanderson’s performance.
  
  
• Fair Work accepted that there was “probably not much more” Mr. Sanderson could do to make more sales.

The Fair Work Commission concluded that Mr. Sanderson’s employment would not have continued for more than two further weeks. Brightest Australia was therefore ordered to pay him the equivalent of two weeks’ gross pay.

US national’s Fair Work claim survives despite never setting foot in Australia

Another case of an overseas-based worker who filed a Fair Work claim is Gautam Parimoo v Lake Resources N.L. [2023]. It involved an American executive who was hired by an Australian mining company to work at a lithium mine in Argentina. The employer argued that his Fair Work general protections claim should be thrown out as he had never set foot in Australia. However, the Fair Work Commission found that his employment contract was accepted by email and received at the employer’s Sydney office. He was therefore legally “engaged” in Australia and his claim was allowed to proceed.

Case summary: Gautam Parimoo v Lake Resources N.L. [2023]

• Jurisdiction: Fair Work Commission NSW.
  
  
• Key employer argument: The employee was a US citizen engaged in Chile to perform duties in Argentina. He therefore was not an Australian-based employee entitled Fair Work Act 2009 protections.
  
  
• Key employee argument: Because his signed employment contract was received by email at the employer’s Sydney office, he was legally engaged in Australia and entitled to Fair Work general protections.
  
  
• Fair Work outcome: Jurisdictional objection dismissed. The Commission found the contract was formed in Sydney and the applicant was an Australian-based employee.

Employer fails to block US worker’s Fair Work general protections claim

US citizen Gautam Parimoo began working for Sydney-headquartered mining company Lake Resources NL as chief operating officer in October 2021. The company manages several international lithium mining operations, primarily in Argentina. Mr. Parimoo was first approached about the Lake Resources role by a recruiter based in Chile. Three rounds of job interviews followed. Mr. Parimoo attended via video conferencing from overseas, while Lake Resources representatives joined from Sydney and Perth.

As part of the hiring process, Lake Resources’ technical director emailed Mr. Parimoo a final copy of an executive services agreement. Mr. Parimoo signed the agreement the next day without making changes and emailed it back to the director. The director then countersigned the document and sent a copy back to Mr. Parimoo on 24 October 2021 for “your files.”

Mr. Parimoo’s role centred on the development of the Kachi Lithium Brine Project in Argentina. He performed all duties in Argentina throughout his entire period of employment. He never travelled to Australia for work. On 9 January 2023, Lake Resources dismissed Mr. Parimoo effective immediately, with payment made in lieu of notice. Mr. Parimoo later lodged a Fair Work general protections claim alleging that his dismissal contravened Part 3-1 of the Fair Work Act 2009.

Why did the employer argue the worker could not lodge a Fair Work claim?

Lake Resources lodged a jurisdictional objection in response to Mr. Parimoo’s Fair Work general protections claim. It argued that Mr. Parimoo fell within the exclusion in section 35(3) of the Fair Work Act 2009. This provides that an employee employed by an Australian employer is not an “Australian-based employee” if they were engaged outside Australia to perform duties outside Australia. Lake Resources argued to the Fair Work Commission:

• It was not disputed that Mr. Parimoo had performed all of his duties in Argentina.
  
  
• The words “engaged outside Australia” should be read as “engaged [while] outside Australia.” Therefore the relevant factor was the physical location of Mr. Parimoo when he signed the contract, which was overseas.
  
  
• Contract law concepts such as where a contract is “accepted” or “made” were not relevant to the meaning of “engaged” in the Fair Work Act 2009.
  
  
• In the alternative, because the contract sent to Mr. Parimoo was already signed and unconditional on the company’s part, the agreement was not complete until Mr. Parimoo received Lake Resources’ countersigned copy back. This was an event that also occurred overseas.

Why did the overseas worker believe he could lodge a Fair Work claim?

In response to the jurisdictional objection, Mr. Parimoo argued to the Fair Work Commission:

• The word “engaged” in section 35(3) refers to the formation of the employment contract. Specifically, where it is accepted by the employee.
  
  
• Lake Resources received Mr. Parimoo’s signed acceptance by email at its Sydney office. He was therefore engaged in Australia.
  
  
• Relying on the Electronic Transactions Act 2000 (NSW), he cited Australian Competition and Consumer Commission v Valve Corporation (2016). In this case the court found that the place of formation of a contract accepted by email is where the offeror receives the email.
  
  
• He also cited Winter v GHD Services Pty Ltd [2019], where the court found that a contract concluded by email “is finalised at the place of business of the recipient of the email.”

Why was the overseas worker entitled to lodge a Fair Work claim?

A judgement on the jurisdictional objection to Mr. Parimoo’s Fair Work general protections took place in October 2023. The Fair Work Commission ruled that he was entitled to make the claim based on the following findings:

• Lake Resources’ claim about the meaning of “engaged” was dismissed.
  
  
• Mr. Lindsay’s email in October 2021 was a contractual offer to Mr. Parimoo, who had accepted that offer on 23 October 2021 by returning the agreement signed by email.
  
  
• Under the Electronic Transactions Act 2000 (NSW), an electronic communication is taken to have been received at the place where the addressee has its place of business.
  
  
• The “place” where the contract was formed, and where Mr Parimoo was therefore “engaged,” was Sydney, Australia.

Unfair dismissal FAQs

1. Can an overseas employee make a Fair Work unfair dismissal claim?

Yes, but only in certain circumstances. An overseas employee can bring a Fair Work unfair dismissal or general protections claim if they qualify as an Australian-based employee under the Fair Work Act 2009. This turns on whether the employee is employed by an Australian employer and was not engaged outside Australia to also perform duties outside Australia.

David Sanderson v Brightest Australia Pty Ltd [2026] is a prime example. Mr. Sanderson was a New Zealand-based worker employed by an Australian company. He lived and worked entirely in New Zealand and performed no work in Australia. Despite this, the Fair Work Commission found he was an Australian-based employee because his signed employment contract was received by email at the company’s Victorian office. This meant that his contract was formed in Australia, entitling him to Fair Work protections.

2. What is an Australian-based employee?

An “Australian-based employee” is defined in section 35(2) of the Fair Work Act 2009. A person qualifies if their primary place of work is in Australia, if they are employed by an Australian employer, or if they are prescribed by the regulations. However, under section 35(3), employees who are employed by an Australian employer are excluded if they were engaged outside Australia to perform duties outside Australia.

In Gautam Parimoo v Lake Resources N.L. [2023], Mr. Parimoo was employed by an Australian company but did not perform any work in Australia. The Fair Work Commission found that his employer had received his signed contract by email at its Sydney office. This meant that his contract was formed in Sydney. He was therefore not excluded under section 35(3) and qualified as an Australian-based employee.

Read more: ‘Poor English’ Worker Reinstated After Fair Work Ruling Translated Into Rohingya

Have you faced unlawful termination?

If so, it is important to seek advice quickly. Strict time limits apply to Fair Work claims, and missing a deadline can cost you the right to pursue your case entirely. We at Australian Workplace Discrimination Representatives assist employees across Australia with unfair dismissal, Fair Work general protections claims, forced resignation and sexual harassment matters.

Your first consultation with us is free and confidential. Contact us today on 1800 333 666.