In a recent case, the Fair Work Commission (FWC) considered the difference between volunteer work, unpaid work experience, and employment to find whether a recent law graduate was able to take an unfair dismissal claim. The FWC found that there was no contract of employment in place and the graduate was not eligible to bring an unfair dismissal claim.
In August 2020, the law school graduate commenced a role with a legal practice in Sydney. Although the graduate asserted that he had been “actively recruited” by a solicitor at the firm, the FWC found that the initial meeting had occurred at his own request.
In November 2020, the law firm advised the graduate that they were “restructuring the firm to meet the current economic crisis” and was unable to offer him any further volunteer work. He subsequently filed an unfair dismissal claim, asserting that he was an employee of the legal firm.
The FWC commented on the difficulty of differentiating between internships, unpaid work experience, and employment. The FWC considered several factors surrounding the graduate’s service to determine whether or not a contract of employment existed.
Based on the evidence, the FWC determined that the graduate was not an employee of the law firm, and therefore was not eligible to bring an unfair dismissal claim.
Lessons for Employers
- ensure that prospective workers are aware of their title and the terms of their service;
- do not lead volunteers and other unpaid workers to believe that they are employed by the company;
- the terms of any working relationship should be documented in writing.
If you would like assistance in determining the terms and conditions for unpaid workers and volunteers, please do not hesitate to contact us at Effective Workplace Solutions.
Greg Arnold – Director & Principal Consultant
Disclaimer: This article provides a summary only of the subject matter without the assumption of a duty of care by Effective Workplace Solutions. No person should rely on the contents as a substitute for legal of other professional advice.