1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Patrick Hendryx Montaner Benitez v Axis Corporate Health Pty Ltd (ABN 39 123 976 116) (U2025/20121) DEPUTY PRESIDENT SLEVIN SYDNEY, 4 JUNE 2026 Application for an unfair dismissal remedy [1] Mr Patrick Hendryx Montaner Benitez lives and works in the Philippines. From June 2022 to December 2025 he performed work for an Australian company Axis Corporate Health Pty Ltd (Axis). Axis brought the work to an end on 5 December 2025. Mr Benitez has made an application for an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (Act). [2] Axis contends that the Act does not apply to Mr Benitez. It also contends that in any event Mr Benetiz was not an employee, he was an independent contractor and so was not dismissed. [3] The matter was heard by Determinative Conference on 3 June 2026. The applicant represented himself and gave evidence on his own behalf. Mr Blomeley, Director of Axis, appeared for the respondent. At the conclusion of the conference I indicated to the parties that I had decided that the Commission did not have jurisdiction to hear his application. These are my reasons for decision. [4] The issue is whether Part 3-2 (Unfair Dismissal) of the Act applies to the applicant in relation to the purported dismissal. As noted above, the applicant was resident in the Philippines and performed the work for Axis in the Philippines. [5] In Doessel Group Pty Ltd v Joanna Pascua [2025] FWCFB 43 (Pascua), a Full Bench of the Commission considered the provisions of the Act relating to the territorial operation of Part 3-2 (Unfair Dismissal). The Full Bench observed at [39] those provisions operate such that Part 3-2 is extended to operate with respect to any Australian-based employee in relation to the employee’s Australian employer without territorial limitation. [6] The meaning of the terms “Australian-based employee” is set out in s 35 of the Act as follows: 35 Meanings of Australian Employer and Australian-based employee (1) An Australian employer is an employer that: [2026] FWC 2074 DECISION 2 (a) is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or (b) is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or (c) is the Commonwealth; or (d) is a Commonwealth authority; or (e) is a body corporate incorporated in a Territory; or (f) carries on in Australia, in the exclusive economic zone or in the waters above the continental shelf an activity (whether of a commercial, governmental or other nature), and whose central management and control is in Australia; or (g) is prescribed by the regulations. (2) An Australian - based employee is an employee: (a) whose primary place of work is in Australia; or (b) who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or (c) who is prescribed by the regulations. (3) However, paragraph (2)(b) does not apply to an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories. [7] Applying the definitions here, Axis is an “Australian employer” within the meaning of s 35(1)(a) of the Act and the applicant meets the description of an “Australian-based employee” in s 35(2)(b) of the Act as he is employed by an Australian employer. That however is not enough. Section 35(3) provides that s 35(2)(b) does not apply to an employee engaged outside Australia or the external Territories to perform duties outside Australia and the external Territories. [8] It is accepted that the exclusion in s 35(3), applies if an employee has been “engaged outside Australia” and was engaged to perform work outside Australia and its external Territories. (See Munjoma v Salvation Army (NSW) Property Trust as Trustee for the Social Work [2013] FWC 3337 (Munjoma). In Winter v GHD Services Pty Ltd, Heffernan J in the Federal Circuit Court of Australia said, by reference to early cases that the ‘engagement outside’ limb requires identification of the location of formation of the contract. [9] Therefore, it is necessary for me to decide whether the applicant was “engaged outside of Australia”. During the conference the applicant explained that he attended two interviews for the position of Appointment Setter with Axis electronically through Online Jobs Ph. On 13 June 2023 he received an email reply from Axis which invited him to an online group interview on 14 June 2023. The email included the following: We will be holding a group interview on Wednesday 14th June at 8.00 am PH time there are multiple positions available so we’re looking to speak to you as a group and then briefly individually before we offer you a trial as an appointment setter with us. [10] Mr Benitez attended the first interview on 14 June 2023. He then had an individual interview with Mr Michael Miranda who is a team leader with Axis based in the Philippines. While the second interview, which Mr Benitez described as the final interview, was conducted by video conference, both Mr Benitez and Mr Miranda were in the Philippines. Mr Benitez stated that during the video conference he was offered the position. Mr Benitez said that he accepted the position during the video conference. There was no written offer and no written contract to sign. Mr Benitez says that he later requested a written contract but was never provided with one. On 16 June 2023, consistent with the offer and acceptance, in the earlier conference Mr Benetiz received an email from Axis welcoming him to the company. The email included a number of onboarding documents giving Mr Benitez access to software and other material necessary for him commencing work. 3 [11] I consider in these circumstances that the verbal offer and acceptance for work during the second interview amounted to Axis engaging Mr Benitez. That engagement occurred in a discussion between Mr Benitez and Mr Miranda when both of them were in the Philippines. As the contract was formed outside of Australia Mr Benitez was engaged outside Australia or the external Territories and section 35(3) operates to exclude Mr Benitez from the definition of Australian-based employee. [12] As I find that Mr Benitez was not an Australian-based employee the Commission does not have jurisdiction to determine his unfair dismissal application. An Order1 to this effect is issued with this Decision. DEPUTY PRESIDENT Appearances: Mr P Benitez, the Applicant on his own behalf. Mr M Blomley for the Respondent Hearing details: Via Microsoft Teams Video 3 June 2026 Printed by authority of the Commonwealth Government Printer <PR810710> 4 1 PR810711