Legal graduate work status akin to volunteer rather than employee

Legal graduate work status akin to volunteer rather than employee

A recent law graduate has failed to convince the Fair Work Commission that he was employed by a legal firm and should have legal recourse to challenge the ending of the work relationship.

The graduate Applicant had been engaged by D Lawyers, a small legal practice operating in Southwest Sydney, with a Principal and a solicitor. The Applicant had completed his Graduate Diploma of Legal Practice on 7 July 2020 and was admitted to legal practice in New South Wales on 14 August 2020.

The following day, he was approached by Mr B, a social acquaintance from his university studies. Following a series of meetings between the two, one of which included the Principal, he commenced a role with D Lawyers, along with another graduate, on 24 August 2020.

During the initial hearing before Deputy President Melanie Binet, the Applicant acknowledged that he understood the role offered to him afforded him an opportunity to prove himself and demonstrate that he could work as a lawyer. He also acknowledged that there was no agreement for him to be paid for the work he was initially performing; however, he had an expectation of being paid a small retainer over time.

On 25 November 2020, the Principal sent him a text advising him that the business was being restructured and that they could not offer him any further volunteer work. During the period from August 2020 until November 2020, he never received payment from the firm, nor was he required to provide bank account details, a tax file number or nominate a superannuation fund.

The fundamental issue for the Deputy President to determine was whether the employee had actually been dismissed, based upon whether an employment relationship actually existed between the parties. She noted the testimony of the fellow graduate who was engaged under similar arrangements and stated that both he and the Applicant were volunteers and not employees and were both free to attend the firm’s office for whatever hours suited them.

The Deputy President ultimately determined that, “The evidence before me suggests that to date the relationship between (the Applicant) and D Lawyers was one of work experience, not employment”.

The key factors underpinning the Deputy President’s determination include:

  • The Applicant did not refer any client and was not paid any commission;

  • No fixed times or days of the week were agreed between the parties;

  • No clients were billed for the tasks he undertook, nor did it result in commercial gain for the firm;

  • The Applicant was offered the opportunity to do productive work but was not expected or required to do productive work; and

  • D Lawyers did not advertise for employees or volunteers or otherwise proactively recruit the Applicant.

In dismissing his claim, the Deputy President referred to section 386 of the Fair Work Act 2009, which deems that a dismissal can only occur if a person’s employment is terminated. She stated that as she was not satisfied that the Applicant was an employee, he could not have been dismissed and was therefore ineligible to make the application.

A B v D Lawyers (C2020/9025) 30 June 2021

For questions about volunteers, work experience students, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au.

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