Mr Mitchell Klievens v Cappello Rowe Lawyers

[2017] FWC 5126

[2017] FWC 5126

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Mitchell Klievens
v
Cappello Rowe Lawyers
(U2017/3532)

COMMISSIONER JOHNS SYDNEY, 3 OCTOBER 2017

Application for an unfair dismissal remedy.

Introduction

[1] On 31 March 2017 Mitchell Klievens (Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work FW Act 2009 (FW Act) for a remedy in respect of his dismissal by Cappello Rowe Pty Ltd (Cappello Rowe/Employer/Respondent).

[2] On 12 April 2017 the Employer filed a response to the unfair dismissal application in which it objected to the Commission exercising jurisdiction in relation to the matter on the basis that, it submitted, the Applicant’s employment did not meet the minimum employment period (MEP). In the present matter Cappello Rowe is not a small business. Consequently, the MEP is 6 months.

[3] Attempts at conciliation were attempted, but the matter remained unresolved. Consequently the matter was listed for hearing.

[4] At the hearing on 3 July 2017:

a) The Applicant represented himself. Mr Klievens gave evidence on his own behalf and was cross-examined. He also called:

i. Mr Enis John Goktepe; and

ii. Ms Carolyn Ledinh.

b) The Respondent was represented by Ms Sarah Cappello, a partner in the firm, after I refused to grant permission for the Respondent to be represented by Counsel. 1 Ms Cappello gave evidence on behalf of the Respondent and was cross-examined.

[5] In advance of the hearing the parties had filed submissions, witness statements and documents. At the conclusion of the hearing the matter was further programmed for the filing of closing submissions. In coming to this decision the Commission, as presently constituted, has had regard to the following materials in addition to the evidence received during the hearing:

a) Respondent’s Submissions (Exhibit R1),

b) Witness Statement of Sarah Cappello (Exhibit R2),

c) Email from S Cappello to A Rowe dated 10 October 2016 (Exhibit R3),

d) Email from S Cappello to the Applicant dated 19 October 2016 (Exhibit R4),

e) Email from the Applicant to S Cappello dated 20 October 2016 (Exhibit R5),

f) Email from S Cappello to group dated 20 October 2016 (Exhibit R6),

g) Email dated 15 September 2016 (Exhibit R7),

h) Email from C Ledinh to the Applicant and others (Exhibit A1),

i) Tax Invoice dated 30 November 2016 (Exhibit A2),

j) Email from A Rowe to the Commission dated 29 May 2017 (Exhibit A3),

k) Applicant’s jurisdictional statement (Exhibit A4),

l) Applicant’s response to Respondents submissions (Exhibit A5),

m) Respondent’s Closing Submissions filed on 21 July 2017.

n) Applicant’s Closing Submissions filed on 23 July 2017.

o) Respondent’s Written Submissions in Reply filed on 25 July 2017.

[6] Further, both the Applicant and the Respondent referred me to various decisions to which I have had regard in coming to this decision.

Background

[7] The following matters were either agreed between the parties or not otherwise substantially contested:

a) On 23 May 2016 the Applicant commenced employment with the Healthcare Complaints Commission (HCC). 2

b) On 26 June 2016 the Applicant wrote to Ms Cappello to enquire about undertaking Practical Legal Training (PLT) with the Respondent. 3

c) On 29 June 2016 Ms Cappello wrote to the Applicant and suggested they meet. 4

d) On 4 July 2016 the Applicant and Ms Cappello met. 5 Ms Cappello agreed to allow the Applicant to do his PLT with the Respondent.

e) At some point after the meeting on 4 July 2016 the Applicant commenced unpaid work for the Respondent. He worked on his “flex-days” from the HCC.

f) In July 2016 the Respondent’s professional staff (including Ms Cappello) recorded time (to be charged to a client) for reviewing work undertaken by the Applicant or for instructing the Applicant. However, the client was not charged for the work undertaken by the Applicant. 6

g) On 5 August 2016 the Applicant formally commenced unpaid Practical Legal Training (PLT) with the Respondent. He continued to work on his “flex-days” from the HCC.

h) In the week beginning 8 August 2016 the Applicant worked 0 day.

i) In the week beginning 15 August 2016 the Applicant worked 1 day.

j) In the week beginning 22 August 2016 the Applicant worked 1 day.

k) In the week beginning 29 August 2016 the Applicant worked 2 days.

l) On 31 August 2016 the Applicant ceased employment with the HCC.

m) In the week beginning 5 September 2016 the Applicant worked 3 days.

n) In the week beginning 12 September 2016 the Applicant worked 5 days.

o) From 15 September 2016 the Applicant was established in the Respondent’s Microsoft Office system “@cappellorowe.com.au”. 7

p) In the week beginning 19 September 2016 the Applicant worked 5 day.

q) In the week beginning 26 September 2016 the Applicant worked 5 days.

r) In the week beginning 3 October 2016 the Applicant worked 3 days.

s) On 7 October 2016 one of the Respondent’s solicitors recorded time (to be charged to a client) for reviewing work undertaken by the Applicant. However, the client was not charged for the work undertaken by the Applicant. 8

t) In the week beginning 10 October 2016 the Applicant worked 5 days.

u) On 10 October 2016 Ms Cappello and Mr Rowe met to discuss employing the Applicant. 9

v) From 14 October 2016 10 the Applicant commenced formal employment with the Respondent.

w) On 17 October 2016 the Applicant signed a “Graduate Diploma of Legal Practice Work Experience Declaration” to The College of Law (NSW). 11 In the Declaration the Applicant:

i. Indicated that is “Work placement dates” were “5/8/16 to 14/10/16”.

ii. Claimed his work placement dates were as follows:

Date from	Date to	Total (cumulative days)
5 August 2016	5 August 2016	1
19 August 2016	19 August 2016	2
26 August 2016	26 August 2016	3
1 September 2016	2 September 2016	5
7 September 2016	9 September 2016	8
12 September 2016	30 September 2016	23
4 October 2016	4 October 2016	24
6 October 2016	14 October 2016	31

iii. Signed the Declaration as “Law Clerk”.

x) On 18 October 2016 Ms Cappello signed and submitted The College of Law “Work Experience Component” of the Application. 12

y) On 19 October 2016 the Respondent sent the Applicant a formal Letter of Offer containing the following terms,

“Title/Role	Law Clerk
Reporting to	Andrew Rowe & Sarah Cappello
Commencement date	1 January 2016 (sic)
Total remuneration	$50,000
Probation period	6 months
Hoursof employment	8.30 am to 5.00 pm Monday to Friday unless otherwise agreed” 13

z) On 20 October 2016 the Applicant accepted the offer of employment. 14 His appointment was announced to all staff.15

aa) On Monday. 27 March 2017 the Applicant wrote to Ms Cappello to complain about a number of issues in the workplace. He informed her about the impact of those matters on his health. He advised her that he would be approaching his GP and seeking a referral to a psychiatrist.

bb) On Wednesday, 29 March 2017 the Applicant was diagnosed with “anxiety, insomnia, depression.”

cc) Also on Wednesday, 29 March 2017 the Applicant’s employment was terminated. The termination letter stated the following:

“The purpose of his letter is to confirm the outcome of a recent review by Cappello Rowe Pty Ltd of its operational requirements and what this means for you.

As a result of the settling of a number of large matters and a decline in new business, the position of Junior Lawyer at our Sydney office is no longer needed. Regrettably, this means your employment will be terminated.

Your employment will end immediately.”

dd) The Applicant received a payment in lieu of notice. He also received an ex gratia payment of 1 week’s severance pay and his statutory entitlements.

ee) The Applicant submits he was unfairly dismissed.

Protection from Unfair Dismissal

[8] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[9] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[10] In the present matter there is a question about whether the Applicant has completed the MEP of 6 months. That issue needs to be determined as a preliminary jurisdictional matter.

[11] It is agreed that the Applicant commenced formal employment on 14 October 2016 and that the employment was terminated on 29 March 2017. There are 23 weeks and 5 days between 14 October 2017 – 29 March 2017. That period of time does not meet the MEP.

[12] Only if the period between 28 September 2016 – 14 October 2016 (Relevant Period) is counted does the Applicant satisfy the MEP. Or if there has not been a break in continuity of service some other period of employment exists that equates to a further 2 weeks and 2 days.

[13] The Respondent says the Relevant Period does not count because the Applicant was not employed during that period. It says that during the Relevant Period the Applicant was engaged in unpaid work experience. In correspondence to the Commission the Respondent wrote,

“… the Respondent does not dispute that during the period of the Applicant’s unpaid work experience that the Applicant performed work for the Respondent and that that work was of some benefit to the Respondent…” 16

[14] The Applicant says the Relevant Period does count. He says that by that stage of his work with the Respondent he was employed, but not being paid. He says that the nature of his effort was such that his work could not, during the Relevant Period, be characterised as work experience. He says the time he spent working for the Respondent exceed the time required to complete his PLT.

Ms Cappello’s evidence

[15] Ms Cappello’s evidence was that, during the Relevant Period,

a) “the Applicant’s time was not recorded nor billed to clients and accordingly he did not have any [financial] targets.” 17

b) “I would often give the Applicant files to read or set research tasks which had little to no benefit to the Respondent, but were intended principally for his edification.” 18

c) “Throughout the period of the Applicant’s work experience [the Applicant] was never directed to attend on any particular days or times. He simply came and went as he pleased.” 19

d) “The Applicant was not paid by the Respondent during his period of work experience. On occasion when staff were working late the Respondent would pay for some take-away food for the staff working and if the Applicant was in the office at the time he would be invited to join in.” 20

e) Further, on a few occasions when staff worked late the Respondent would pay for a shared taxi to take them home and if the Applicant was present he would be invited to ride home in the taxi.” 21

Mr Klievans’ evidence

[16] Mr Klievan’s evidence was that,

a) His work for the Respondent was outside the scope of a vocational placement.

b) In August 2016 he was invited on and attended a work related trip. 22

c) “As the unpaid employment phase progressed, [he] eventually was attending the workplace on a full time basis,” 23, undertaking work of value and had access to the Respondent’s LEAP accounting system.

d) From 15 September 2016 he was doing the same work as a paid employee of the Respondent (Joey Tass) and was included in group team emails about matters. 24

e) Paid staff of the Respondent recorded time (for billing purposes) when they reviewed his work or gave him instructions. 25

f) He was “subject to a high degree of control regarding workplace attendance during the unpaid phase of employment and routinely requested permission to attend and advised when he was sick or unable to attend…” 26

g) The Respondent “profited from [his] work in providing general assistance in the office after the loss of the following staff:

i. Law Clerk, Mr Stafford Whittfield,

ii. Legal Secretary, Ms Sonia Jastrzebski,

iii. Junior Solicitor, Mr Joey Tass.” 27

h) He found himself “completing tasks a Law Clerk would complete”, leading to a requirement for “full-time attendance with the work load currently ongoing.” “This became progressively worse … resulting in a routine work days amounting to 8 am till 12 pm.” 28

Mr Goktepe’s evidence

[17] Mr Goktepe’s evidence was that,

a) Mr Klievens worked on key matters for the Respondent, 29

b) Mr Klievens,

“was assisting administratively: filing, answering phones, et cetera; he was also, I would say, tagging along with different solicitors to help with matters, so be that going to directions hearings, be that going to counsel conferences with solicitors; he also was involved in [a social] event…. He also assisted with legal research when he was asked to.” 30

c) In terms of the difference between his work and that of Mr Klievens,

“Mr Klievens, at the start of his employment, he was more – like I said, he was more on the sort of tag along basis, so especially at the start of – when he started his PLT he was free to choose wherever he wanted to do sort of tag along, like I said, whichever job seemed more favourable to him; whereas the main difference between what he done and what I done was I was actually assigned. So, for example, the Smith matter, that is your matter that you’re to take care of; make sure it is ticking along; make sure the matters – you know, we don’t miss any deadlines; make sure the affidavit – you know, I had a [lot] more responsibility on me than [Mr Klievens].” 31

Ms Ledinh’s evidence

[18] Ms Ledinh’s evidence was that Mr Klievens was a part of a team working on a large Supreme Court matter and she delegated tasks to him.

Consideration

[19] The issue of unpaid work arrangements has had some national prominence. In late 2011, the Fair Work Ombudsman (FWO) identified unpaid work in Australia as a growing issue that needed attention. Consequently, the FWO decided that further research was needed. To this end the FWO commissioned Adelaide University Law School Professor Andrew Stewart and Rosemary Owens to conduct research and deliver a report on unpaid work in Australia. That report was delivered in January 2013: Stewart and Owens “The Nature, Prevalence and Regulation of Unpaid Work Experience, Internships and Trial Periods in Australia: Experience or Exploitation” (January 2013).

[20] The Stewart/Owens report dealt with unpaid work in legal services as follows,

“3.61 Prior to commencing our research for this project, we had heard occasional stories about certain lawyers (and perhaps more particularly barristers) in our home town of Adelaide using keen young law students to undertake unpaid legal research for them. With law schools producing many more graduates than could possibly find work in the legal profession, we were aware that students desperate to break into the profession might well want to offer their services for free to an established lawyer, in order to gain experience and make (or cement) a valuable contact. But as against that, we also knew that the larger commercial law firms each had a tradition of ‘summer clerkship’ programs, offering paid work to later year law students. Combined with the opportunities to volunteer at a range of community or not-for- profit legal services (including for instance the YWLS), we believed that unpaid work for legal businesses would be relatively unusual, at least prior to the work placement that is a typical requirement of the practical legal training course that must be completed in order to gain a practising certificate.

3.62 In order to test out that assumption, we conducted surveys of final year law students at our own institution, the University of Adelaide, and also at two interstate law schools with what we considered might have rather different student cohorts, QUT and the University of Western Sydney (UWS). The same survey was administered at each of the three law schools at a face-to-face lecture, without prior notice, so that in each case we could reach a random sample of final year law students. The results, which are presented in combined form in Appendix E, surprised us more than a little. Around half of those surveyed (the percentages were similar at the three institutions, though very slightly lower at UWS) indicated that they had performed unpaid work (other than as a volunteer or as part of their own or a family member’s business) since leaving high school; and for the most part they had not done so for credit towards a degree or qualification. A significant minority had performed extracurricular unpaid work more than once, often for months at a time. While some of these arrangements involved work in non-law occupations, a substantial number reported working for law firms or (to a lesser extent) barristers. This struck us as highly notable. It has caused us either to question what we thought we knew about the paid work opportunities at the bigger firms, or (more likely) to infer that smaller firms may be willing to accept work from students on an unpaid basis.

3.63 The stated reasons for law students undertaking unpaid work experience varied somewhat; two particular but contrasting favourites of ours were ‘kindness’ and ‘cold ambition’. But they most commonly involved improving employability, practising skills and gaining a better understanding of the work environment. Only around a third of those surveyed reported getting an offer of paid employment. Once again, the comments made for very interesting reading. Some noted the benefits or even necessity of working unpaid:

I believe it demonstrates the student’s commitment and drive to securing employment in that organisation. To work unpaid shows a level of interest & determination to obtain paid employment in that area. ... Almost necessary without the right contacts in the legal industry,

Others questioned what was involved:

I don’t understand how people can afford to do it. Studying at Uni is a big enough expense. I also don’t understand ethically how businesses can ask for that. ... I don’t get paid to work, yet the firm still charges me out at $150/hour. The firm is gaining a considerable financial advantage from me being there. For me, giving up my own time is a big deal as I work 20+ hours at another job & study full time. I will be disappointed if this placement doesn’t increase my employability

3.64 While again we must be careful not to generalise from a small survey, it seems to us that the results reveal a fairly clear picture of unpaid and extracurricular work experience being common for those law students not fortunate enough to secure paid work opportunities at the larger commercial firms or in government departments.

[21] Unpaid work can occur in the workforce in different forms - from vocational placements to unpaid job placements, internships, work experience and trials. They are entered into for a number of reasons. These include:

a) to give a person experience in a job or industry,

b) to provide training and skills and/or work experience as part of formal programs to assist people to obtain work,

c) to test a person’s job skills, or

d) to volunteer time and effort to a not-for-profit organisation.

[22] Not paying the person doing the work in some of these arrangements can be lawful. For example, for defined vocational placements, or where a job seeker is not an employee, but rather is receiving benefits from the government and undertaking a work placement as part of a Commonwealth employment program.

[23] In cases where the person is actually an employee, they are entitled to pay and conditions under the FW Act. That period of work also counts for the purposes of determining if the employee has met the MEP before they can make an application for an unfair dismissal remedy.

[24] If a person is an employee, they may also need to complete formal or informal training to make sure they have the right skills and knowledge to perform their job. This can include on-the-job training, online or formal training courses or team training. If an employee has to do training as part of their job, they have to be paid the right pay for those hours worked. 

[25] Unpaid work experience, job placements and internships that are not vocational placements will be unlawful if the person is in an employment relationship with the business or organisation they are doing the work for. Section 13 of the FW Act expressly excludes from the definition of “national system employee” a person “on a vocational placement.”

[26] “Vocational placement” is defined as,

“…a placement that is:

a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and

b) undertaken as a requirement of an education or training course; and

c) authorised under a law or an administrative arrangement of the Commonwealth, a State or Territory.” 32

[27] To work out whether or not a person is an employee each case must be considered on its own facts. It is a matter of working out whether the arrangement involves the creation of an employment contract. That contract does not have to be in writing; it can be a purely verbal agreement. An employment contract can arise even where the parties call the arrangement something else, say it is not employment, or if a person agrees not to be paid wages for work they do. 

[28] The workplace dates submitted by the Applicant to The College of Law are instructive:

Week beginning	Date from	Date to	Number of days	Number of days that week	Total (cumulative days)
1 August	5 August	5 August	1	1	1
8 August	0	0
15 August	19 August	19 August	1	1	2
22 August	26 August	26 August	1	1	3
29 August	1 September	2 September	2	2	5
5 September	7 September	9 September	3	3	8
12 September	12 September	16 September	5	5	13
19 September	19 September	23 September	5	5	18
26 September	26 September	30 September	5	5	23
3 October (PH)	4 October	4 October	1	3	24
3 October	6 October	7 October	2	26
10 October	10 October	14 October	5	5	31

[29] What is evident from the above is that, after the Applicant ceased employment with the HCC in late August 2016, at least from the week commencing 12 September 2016 the Applicant was (but for the week beginning 3 October) working 5 days per week unpaid.
[30] That means that during the Relevant Period (i.e. 28 September 2016 – 14 October 2016):

a) there was 1 Public Holiday,

b) there were 12 business days, and

c) the Applicant worked 11 of them.

[31] However, that is not conclusive of the matter. Unpaid work experience is often conducted on a full-time basis. That is part of the exercise. That is to say, to give the work experience student a taste of working full-time.
[32] There are a range of indicators that an employment relationship exists, and it needs to be assessed on a case by case basis.  Key indicators are:

a) an intention to enter into an agreed arrangement to do work for the employer

b) a commitment by the person to perform work for the benefit of the business or organisation and not as part of a running a business of their own, and

c) an expectation that the person receive payment for their work.

[33] The indicators below are useful in determining whether an employment relationship exists and an unpaid work experience, job placement or internship is likely to be unlawful.

Reason for the arrangement

[34] If the purpose of the work experience, placement or internship to give the person work experience it is less likely to be an employment relationship. But if the person is doing work to help with the ordinary operation of the business or organisation it may be an employment relationship arises.  The more productive work that is involved (rather than just observation, learning, training or skill development), the more likely it is that the person is an employee.

[35] In the present matter the work arrangement from 5 August 2016 was entered into for the purpose of providing the Applicant with PLT. PLT is a mandatory for admission to practice as a lawyer.

[36] Admission of lawyers in New South Wales is governed by the Legal Profession Uniform Admission Rules 2015 (NSW) and Part 2.2 of the Legal Profession Uniform Law (NSW). For admission an applicant must:

a) meet the academic requirements,

b) meeting the PLT requirements,

c) meet the character test,

d) submit an application and pay the admission fees; and

e) attend the admission ceremony.

[37] PLT is a structured training program that assists would be lawyers develop their practical skills and proficiency in the day-to-day practice of law. It is usually undertaken at the completion of a law degree. Successful completion of a PLT program leads to the award of a Graduate Diploma of Legal Practice.

[38] In New South Wales the PLT requirements include both structured and supervised training and workplace experience.

[39] The work experience component is designed to give the would be lawyer insight into what it is like to work in a legal environment. It is their first opportunity to apply their knowledge and skills to real, everyday legal problems.

[40] There are many work experience possibilities available. However, the placement must be considered ‘eligible’ in order to be approved. This means that it must:

a) occur in the delivery of legal services, and

b) be supervised by a legal practitioner who meets the ‘Work Experience Rules’ criteria.

[41] The Legal Profession Uniform Admission Rules 2015 (NSW) make it clear that

“workplace experience means supervised employment in a legal office, or supervised paid or unpaid placement in a law or law-related work environment.” 33

(my emphasis)

[42] That is to say it is permissible for PLT to be unpaid. It can also be paid 34 and undertaken concurrently with an employment relationship. But it need not be.

[43] There are two formats (one short, one long) for PLT work experience. The Short Format allows a candidate to to undertake fewer days of work experience (25 days only), balanced by additional coursework in the form of the Clinical Experience Module (CEM) (at an additional cost). Once the 25 days are completed the candidate can can commence the CEM which comprises:

a) four written reflections about their work experience, and

b) an advanced skills session.

[44] What is apparent from this description of PLT is that it is intended to comprise “real work” and not just observational work. It is permissible that the PLT candidate be engaged in productive activities. However, there should be no expectation or requirement that the PLT candidate be obliged to assist the firm generate revenue.

[45] Further, PLT clearly meets the definition of a vocational placement because it,

a) undertaken with an employer for which a person is not entitled to be paid any remuneration; and

b) undertaken as a requirement of an education or training course; and

c) authorised under a law or an administrative arrangement of the Commonwealth, a State or Territory.

[46] Having reviewed in detail the PLT scheme I am satisfied that the engagement from 5 August 2016 – 14 October 2016 was for the purposes of a vocational placement.

Length of time

[47] Generally, the longer the period of the arrangement, the more likely the person is an employee.
[48] In the present matter the PLT placement was for a relatively short period, comprising 31 days over 10 weeks.

Significance to the business
[49] Questions usually asked include:

a) Is the work normally done by paid employees?

b) Does the business or organisation need this work to be done?

[50] If the person is doing work that would otherwise be done by an employee, or it is work that the business or organisation has to do, it is more likely the person is an employee.

[51] In the present matter the work being undertaken by the Applicant was, on the Respondent’s own admission, was,

“work for the Respondent and … was of some benefit to the Respondent.”

[52] However, that is entirely consistent with the PLT regime.

[53] I accept that in the last 4 weeks before 14 October 2016 the Applicant was performing significant work for the benefit of the Respondent. However, none of what he did was inconsistent with PLT. I reject the submission that the work undertaken was outside the scope of a vocational placement. To the extent that the Applicant undertook some ancillary tasks (like I.T/ Admin), the limited scope of those duties did not change the true character of the engagement (as a P.L.T placement)

What the person is doing

[54] Although the person may do some productive activities as part of a learning experience, training or skill development, they are less likely to be an employee if they are not expected or required by the business or organisation to come to work or do productive activities.

[55] In the present matter there is no evidence that the Applicant was obliged to assist the Respondent generate revenue. He did useful work. He worked long hours, but nothing he did was suggestive of an employment relationship. Objectively viewed, in the Relevant Period,

a) there was no an intention to enter into an employment contractual arrangement, and

b) there was no expectation that the Applicant receive payment for his work.

Who's getting the benefit?

[56] The person who is doing the work should get the main benefit from the arrangement. If a business or organisation is getting the main benefit from engaging the person and their work, it is more likely the person is an employee.

[57] In the present matter the Applicant had finished a law degree. He was eager to obtain a practising certificate. He could not do so without undertaking PLT. In the Relevant Period the Respondent did not charge clients for the work he performed. In all the circumstances of this matter the main benefit of the arrangement from 5 August 2016 to 14 October 2014 flowed to the Applicant. There was a benefit to the Respondent too, but the PLT benefited the Applicant more in his desire to be admitted to practice.

[58] There were also additional benefits such as meals, taxis and a work related trip. However, none of these benefits constituted consideration for the work performed.

Conclusion

[59] For the reasons above I am not satisfied that the Relevant Period or any part of the PLT should be counted as an employment relationship between the Applicant and the Respondent.

[60] Consequently, the Commission, as presently constituted, is not satisfied that the Applicant was protected from unfair dismissal because he did not complete the MEP. Consequently, his application for an unfair dismissal remedy must be dismissed.

[61] An order will be issued with this decision.

COMMISSIONER

Appearances:

Mr M Klievens for himself

Ms S Cappello for the Respondent

Hearing Details:

Sydney

3 July

2017

Final Submissions:

Respondent’s Closing Submissions filed on 21 July 2017.

Applicant’s Closing Submissions filed on 23 July 2017.

Respondent’s Written Submissions in Reply filed on 25 July 2017.

 1   Transcript PN17 – 35.

 2   Exhibit “R9”.

 3   Annexure “A” to Exhibit “R2”.

 4   Annexure “B” to Exhibit “R2”.

 5   Annexure “C” to Exhibit “R2”.

 6   Exhibit “A2”.

 7   Exhibit “R7”.

 8   Exhibit “A2”.

 9   Annexure “E” to Exhibit “R2”. Exhibit “R3”.

 10   Annexure “F” to Exhibit “R2”. The verbal offer was made on 14 October 2016. The written offer was sent to the Applicant on 19 October 2016 (albeit dated 14 October 2016).

 11   Attachment to Exhibit ‘R1”.

 12   Annexure “I” to Exhibit “R2”.

 13   Attachment to Exhibit “A4”. Exhibit “R4”.

 14   Annexure “F” to Exhibit “R2”. Exhibit “R5”.

 15   Exhibit “R6”.

 16   Exhibit “A3”.

 17   Exhibit “R2”, para 18.

 18   Ibid, para 19.

 19   Ibid, para 22.

 20   Ibid, para 23.

 21   Ibid, para 24.

 22   Ms Cappello says the Applicant was offered this opportunity because otherwise a pre-paid ticket would have gone to waste.

 23   Exhibit “A5”, para 12.

 24   Exhibit “A1”.

 25   Exhibit “A2”.

 26   Exhibit “A5”, para 10.

 27   Exhibit “A5”, para 21.

 28   Exhibit “A5”, para 22.

 29   Transcript PN824.

 30   Transcript PN838.

 31   Transcript PN852.

 32 Section 12, FW Act.

 33   Schedule 2, Part 1, section 2.

 34   Both Mr Goktepe and Ms Ledinh gave evidence that they were paid for their PLT.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR596533>