Mr Ryan Upton v Geraldton Resource Centre

[2013] FWC 7827

[2013] FWC 7827

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Ryan Upton
v
Geraldton Resource Centre
(U2013/12752)

COMMISSIONER CLOGHAN PERTH, 11 OCTOBER 2013

Unfair dismissal.

[1] This is an application by Mr Ryan Upton seeking a remedy for alleged unfair dismissal from the Geraldton Resource Centre.

[2] Mr Upton is seeking the period of time he spent between 4 and 24 February 2013 as a graduate lawyer on unpaid practical legal training, to be included in the minimum employment period to be protected from unfair dismissal. Should the period of time be included, Mr Upton is protected from unfair dismissal. Should the period of time be excluded, his dismissal is not protected from unfair dismissal.

PROCEDURAL BACKGROUND

[3] On 21 August 2013, Mr Ryan Upton (Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from the Geraldton Resource Centre (Employer).

[4] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[5] The Applicant states in his application that he commenced employment on 25 February 2013 and was dismissed on 15 August 2013.

[6] On 21 August 2013, the application was the subject of a telephone conversation and correspondence from the WA Registry (WA Registry) to the Applicant concerning whether the Applicant had completed the minimum period of employment pursuant to sections 382 and 383 of the FW Act for a person to be protected from unfair dismissal.

[7] The Applicant was informed by the WA Registry on 21 August 2013:

“...based on the information you have provided, you do not appear to have satisfied the minimum employment period. In these circumstances the [Commission] has no jurisdiction to deal with your application.”

[8] The Applicant provided further information and the application was referred to me on 28 August 2013.

[9] On 3 September 2013, I provided to the Employer, for the first time, a copy of the application and further documentation provided by the Applicant. I requested a response to the application from the Employer by 10 September 2013.

[10] The Employer provided a response to the application, which was copied to the Applicant, on 9 September 2013.

[11] The Employer denies that Mr Upton was unfairly dismissed and further, he had not completed the minimum period of employment to be protected from unfair dismissal. The Employer submits that the application should be dismissed.

[12] In procedural directions issued on 13 September 2013, I advised the parties that I intended to determine whether Mr Upton had completed the minimum period of employment to be protected from unfair dismissal on the written material the Commission had already received and any further written submissions. This is my decision and reasons for decision.

RELEVANT STATUTORY FRAMEWORK

[13] The provisions relating to whether an employee has completed the minimum period of time in employment to be protected from unfair dismissal are found in s.382, s.383 and s.384 of the FW Act.

“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) ...

(ii) ...

(iii) ....”

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee (my emphasis).

(2) ...”

RELEVANT BACKGROUND

[14] For reasons which will become apparent, the relevant background as to whether the Applicant has completed the minimum period of employment, in accordance with subsection 382(a) of the FW Act, will begin with the date of Mr Upton’s dismissal.

[15] By correspondence dated 15 August 2013, Mr Upton was dismissed with immediate effect. The Applicant received one week’s pay in lieu of notice and other accrued entitlements.

[16] With regard to the commencement of the Applicant’s employment, the Commission has three (3) documents:

● Mr Upton’s application which states he commenced on 25 February 2013:

● an Employment Separation Certificate dated 16 August 2013 which states that Mr Upton commenced employment on 25 February 2013; and

● correspondence from the Applicant dated 18 February 2013 to the Employer which has the heading “Upton - Tenancy Advocacy Position” and commences, “I am writing to you because I would like to apply for the Tenancy Advocacy Position”. The application encloses Mr Upton’s resume. The resume commences with a “Summary” and begins “I am working as a Volunteer Law Graduate at the Geraldton Resource Centre...I recently finished a law degree and expect to finish practical legal training (PLT) early 2013 ready for my admission”.

[17] At some point after 18 February 2013 and presumably before 24 February 2013, Mr Upton was offered and accepted employment for the Tenancy Advocacy Position. I state presumably because neither party provided a written offer or acceptance of employment. Notwithstanding this lack of written documentation, both parties agree that from 25 February 2013, Mr Upton was employed by the Employer in a paid full-time position as a Tenant Advocate.

[18] Also relevant to this application is the relationship between the Applicant and the Employer from 4 to 24 February 2013.

WHAT WAS THE RELATIONSHIP BETWEEN THE APPLICANT AND THE EMPLOYER BETWEEN 4 FEBRUARY AND 24 FEBRUARY 2013?

[19] The Practical Legal Training in Regional Rural and Remote Australia Project (PLT RRR Project) is funded by the Commonwealth Attorney General’s Department. The PLT RRR Project is administered by the National Association of Community Legal Centres.

[20] The PLT RRR Project is to facilitate graduate lawyers completing their practical legal training placement in one of 55 legal assistance services throughout regional, rural and remote Australia.

[21] Completion of PLT is necessary for a graduate lawyer to practise as a lawyer.

[22] Should a graduate lawyer meet the PLT RRR Project eligibility criteria, a placement is found. One of the four criteria is:

“You are able to self fund the placement. The placements are voluntary and unpaid. You will need to provide your own travel and accommodation.” (my emphasis)

[23] When applying for a placement, the Applicant is required to affirm to the eligibility criteria including the criterion set out immediately above in paragraph [22]. In accordance with what follows, it can be reasonably concluded that the Applicant affirmed as meeting the criterion above to obtain a placement.

[24] The PLT RRR Project has a Frequently Asked Questions segment which includes the following:

“Q. Will I be paid for my placement?

A. No. The placements are unpaid. They are accepted on a voluntary basis and there is no remuneration.”

[25] On 6 October 2012, Mr Upton made application to PLT RRR Project. The Applicant’s expression of interest begins with the following:

“I am seeking work experience starting in February 2013, to become qualified as a lawyer.”

[26] On 8 October 2012, representatives of the PLT RRR Project acknowledged the Applicant’s expression of interest.

[27] On 30 October 2012, Mr Upton made enquiries of the PLT RRR Project as follows:

“If I am offered a legal job in the future that conflicts with these placements, am I allowed to back out.”

[28] On 3 December 2012, Mr Upton corresponded with the Employer stating:

“I would like to confirm my acceptance of your offer of PLT work experience with the Geraldton Resource Centre starting on 4th February 2013. I understand this commitment is for 75-80 days.”

[29] Mr Upton’s submission of 20 September 2013 includes the following:

“[15] The original work experience contract started on 4 February 2013...

[17] That contract ran for 22 days before GRC asked for a offer of employment on 18 February and accepted on 25 February 2013.”

[30] Accordingly, from the material provided to the Commission, I am satisfied that the relationship between Mr Upton and the Geraldton Resource Centre between 4 February and 24 February 2013 was that of a graduate lawyer on placement as part of the PLT RRR Project.

APPLICANT’S SUBMISSION

[31] The Applicant relevantly submits:

“ a person is either an employee or they are not. There is no middle ground;

• there were two contracts: an original unpaid work experience contract and a later paid employment contract;



• the original work experience contract started 4 February 2013;



• a term of the original work experience contract was that it should run for “75-80 days”;



• that contract ran for 22 days before GRC [the Employer] asked for an offer of employment on 18 February 2013 and accepted on 25 February 2013. 22 days is a very long time for work experience. The courts have stated that employers cannot use work experience as a smoke screen for genuine employment;



• the acceptance of the employment contract by GRC on 25 February breached the terms, namely “75-80 days”, of the original work experience contract;



• that breach of the original work experience contract was destroyed void ab initio, or from the very beginning as if it had never existed;



• the question of whether a person is or is not an employee is a complex one that mainly turns on the degree of control that one party has over the other. I was paid and I performed work for that pay. I was under their control.



• the 22 days contribution is not destroyed and is required to be compensated for. The 22 days therefore falls under the employment contract, as there is no other contract for it to fall under. I read the employment contract to have started from 4 February 2013 to account for the 22 days; and



• that means that the total time of employment from the 4 February is 6 months and 12 days. I submit that the facts meet the minimum employment period.”

EMPLOYER’S SUBMISSION

[32] Briefly put, the Employer submits that:

● Mr Upton was employed as a Tenant Advocate from 25 February to 15 August 2013;

● Mr Upton’s period of employment is less than the minimum period of employment required for a person to be protected from unfair dismissal. Accordingly, the application should be dismissed;

● notwithstanding its submission that the Applicant did not meet the minimum period of employment required pursuant to the FW Act, it did not unfairly dismiss Mr Upton; and

● from 4 February to 24 February 2013, Mr Upton was a graduate lawyer on a practical legal training placement to facilitate his admission to the Legal Practice Board. During this period, no employment relationship existed, and consequently, it cannot be “bolted onto” the employment relationship to meet the minimum period of employment required for a person to be protected by the unfair dismissal provisions of the FW Act.

CONSIDERATION

[33] Employee is defined in each Part of the FW Act in which the term appears. In the case of Part 3-2 Unfair Dismissal of the FW Act, an employee is defined as a national system employee or having its ordinary meaning.

[34] A national system employee is defined in s.13 of the FW Act as:

“an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on vocational placement” (my emphasis).

[35] Paragraph 15(1)(b) of the FW Act provides that a reference in the FW Act to an employee with its ordinary meaning “does not include a person on a vocational placement”.

[36] The Dictionary to the FW Act defines a vocational placement as having the following elements:

“(a) undertaken with a 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 law or an administrative arrangement of the Commonwealth, a State or a Territory.”

[37] I now turn to each element in paragraph [36] in seriatim.

(a) Was Mr Upton entitled to be paid as part of his placement with the Employer?

[38] There is no dispute between the parties that Mr Upton’s placement was undertaken with the Employer. Further, between 4 February and 24 February 2013, Mr Upton was unpaid during the placement. However, was Mr Upton entitled to be paid?

[39] Mr Upton has not, and does not, directly claim that he was entitled to be paid when on placement with the Employer except to make a generalised rebuttal submission as follows:

“The Respondent agrees that the entire relationship is either one of total unpaid work experience or total unpaid employment. In other words, 6 months and 12 days unpaid work experience or 6 months and 12 days paid employment. There is no middle ground.”

[40] While the preceding assertion is the Applicant’s interpretation of the Employer’s submission, it is inconsistent with the Employer’s often stated assertion that Mr Upton was not paid or entitled to be paid for the period 4-24 February 2013. Further, as a matter of fact, participation on the PLT RRR Project clearly sets out that the participants will be unpaid.

[41] I note also for the purposes of these reasons for decision, Mr Upton: actively expressed an interest in participating in the PLT RRR Project; affirmed, as part of his participation, that the placement would be unpaid; confirmed acceptance of the Employer’s PLT work experience and when seeking the Tenancy Advocacy position described himself as a “Volunteer Law Graduate”.

(b) Did Mr Upton undertake the placement as a requirement of an education or training course?

[42] In Western Australia, the process for admission to practice as a lawyer is for the person to have completed an approved training course and obtaining a Bachelor of Laws in the first instance. Having done so, the law graduate is required to complete a Practice Legal Training (PLT) programme.

[43] There are different ways in which Mr Upton could have completed his PLT. Mr Upton chose to complete his PLT through the PLT RRR Project.

(c) Was the placement authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory?

[44] Eligibility for admission to the legal profession in Western Australia is contained in Part 4-Admission of local lawyers in the Legal Profession Act 2008 (WA).

[45] Subsection 21(2) of the Legal Profession Act 2008 (WA) provides that a person is eligible for admission to the legal profession if they have satisfactorily completed the approved practical legal training requirements.

[46] Accordingly, I am satisfied that Mr Upton’s placement with the Employer to undertake PLT was a necessary and inherent requirement for him to be admitted to the legal profession. Further, I am satisfied that the PLT RRR Project is an administrative arrangement of the Commonwealth to facilitate graduate lawyers to complete their PLT.

[47] The Applicant cites Cossich v G Rossetto and Co Pty Ltd (t/a Skye Cellars) [2001] SAIRC 37 (Cossich) and asserts:

“On the law above, the courts may interpret employment to run from the start of the placement which is 4 February 2013.”

[48] The Applicant refers also to paragraph [36] of Cossich where His Worship states:

“Work experience cannot be permitted to be used as a smoke screen for genuine employment.”

[49] While I agree with the sentiments expressed by Industrial Magistrate Hardy in paragraph [48] above, the FW Act expressly provides that “vocational placements” are permitted exclusions from the employment relationship. Accordingly, the normal rights and entitlements which accompany being an employee are not available to persons who undertake a vocational placement.

[50] It would appear that the Commonwealth Parliament legislators have attempted to balance the difficulties in not classifying some persons as employees and the desirability of providing those persons the opportunity to complete education and training courses with the possibility of moving onto the normal employment relationship.

[51] Notwithstanding my comments above, Cossich is significantly different on the facts to this application. In Cossich, the claimant finished matriculation and commenced an Associate Diploma in Wine Making. As part of her course, the claimant was required to perform 240 hours of work experience. On 30 May 1994, Ms Cossich received the required certification to say that she had completed the required work experience, however, continued to undertake the same duties for a further eight (8) or nine (9) months. The last 13 weeks of her time with the employer were full-time. All of this time at the respondent’s premises was unpaid. The claimant sought to be paid in accordance with the relevant award.

[52] I am not of the view that this case is of assistance to the Applicant or is “law” for the proposition that his “employment” should commence from the start of his placement on 4 February 2013. His Honour in Cossich came to the view “...the engagement was undeniably for the purpose of work experience but for reasons to be given later it was also employment for most, if not all of the engagement” 1. However, His Worship further states, “the applicant did not seek to claim beyond the completion of the work experience requirements and has limited her claim to that time in which she was correctly classified”2.

[53] In my view, Ms Cossich wanted the Court “to call a spade a spade” and not to tolerate the employer “calling a spade a shovel”. In this application, I am being required to make the same distinction.

[54] In contrast, the Employer relied upon paragraph [78] of Vice President Lawler’s Decision in University of New South Wales (Professional Staff) Enterprise Agreement 2010 [2010] FWAA 9588 as follows:

“As a matter of general law, mere “work experience” does not involve a contract of employment. That is, as a matter of general law, a full-time student who performs a period of “work experience” will not be an employee of the host employer unless there is there an agreement between the host employer and the student that constitutes a contract of employment. There can be no contract of employment unless there is the “mutuality of obligation” that is essential to existence of a contract of employment, including, relevantly, an obligation on the student to perform work during the period of work experience. The approach of the High Court in Deitrich v Dare would suggest that, absent an express agreement to contrary, there is no contract of employment involved in period of “work experience”, even where some (modest) payment is agreed. Obviously, that position is subject to legislation regulating periods of “work experience” by full-time students. I can find no Federal or NSW legislation that would render a full-time student at UNSW performing “work experience” during the long semester break an employee.”

[55] I respectfully adopt the statement of His Honour and agree with the Employer that Dietrich v Dare referred to in Vice President Lawler’s Decision is the primary case law which distinguishes between work experience and a contract of employment.

[56] For completeness, the Applicant has provided correspondence dated 13 June 2013 from The College of Law confirming that he had satisfactorily completed the Work Experience Component of the Professional Program.

CONCLUSION

[57] Having considered the circumstances of Mr Upton’s arrangement with the Employer both prior to and during the period 4 February to 24 February 2013, I am satisfied that it was a voluntary placement in accordance with the meaning in the FW Act and undertaken to complete his practical legal training for admission to practice as a lawyer.

[58] Notwithstanding the various indices referred to by both parties as to the ordinary meaning of “employee”, the FW Act excludes a person who is undertaking a vocational placement. As I have found that Mr Upton was undertaking a vocational placement, he is excluded, by the statute, from the definition of “employee”.

[59] As Mr Upton was not an employee during the period 4-24 February 2013, that period cannot be included for the purposes of meeting the minimum period of employment. The only period which can be considered for the purposes of meeting the minimum period of employment is from 25 February to 15 August 2013. This period is less than six (6) months.

[60] Mr Upton has not met the minimum period of employment required to be protected from unfair dismissal. Accordingly, this application must be dismissed. An order to this effect will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 4 October 2013.

Respondent: 1 October 2013.

 1   Paragraph [33] of Cossich

 2   Paragraph [43] of Cossich

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