| [2021] FWC 1718 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Adam Barbour
v
Memtaz Derbas T/A Derbas Lawyers
(C2020/9025)
DEPUTY PRESIDENT BINET |
PERTH, 30 JUNE 2021 |
Application to deal with contraventions involving dismissal.
[1] On 15 December 2020 Mr Adam Barbour (Mr Barbour) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging Memtaz Derbas T/A Derbas Lawyers (Derbas Lawyers) contravened the general protection provisions of the FW Act in dismissing him from his employment.
[2] On 30 December 2020, Derbas Lawyers filed a Form F8A alleging Mr Barbour was not employed by Derbas Lawyers and therefore had not been dismissed by Derbas Lawyers (Jurisdictional Objection).
[3] In Coles Supply Chain Pty Ltd v Milford 1 the Full Court of the Federal Court held that where an employer submits that the applicant to a section 365 application was not dismissed, as is the case here, the FWC must first determine whether the person was dismissed.
[4] In light of this, the Application was listed for a Hearing of the Jurisdictional Objection in Perth at 10:00am on Thursday 1 April 2021 (Hearing).
[5] Directions for the filing of materials in advance of the Hearing were issued to the parties on 2 February 2021 (Directions).
[6] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which the Hearing is conducted is fair and just.
[7] Section 596(1) of the FW Act provides that a party may be represented in a matter before the FWC by a lawyer or paid agent, only with the permission of the FWC.
[8] Section 596(2) provides that the FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
a. it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
b. it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
c. it would be unfair not to allow the person to be represented, taking into account fairness between the person and other persons in the same matter.
[9] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with section 596 of the FW Act. The decision to grant permission is a two-step process. First, it must be determined if one of the requirements in section 596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.2
[10] Derbas Lawyers is a small legal practice operating in South West Sydney. Mr Derbas is the principal of Derbas Lawyers.
[11] Mr Derbas submitted that permission should be granted for Derbas Lawyers to be represented because the volume of materials filed by Mr Barbour of itself creates complexity in the preparation and hearing of the Application and when combined with his personal circumstances prevent him effectively preparing for, and representing Derbas Lawyers at, the Hearing. Mr Derbas says that his personal circumstances include:
a. he had recently suffered two bereavements in his family;
b. he is the principle of a small firm which is very busy;
c. his wife had recently given birth to their seventh child and she was still recovering from the birth; and
d. he is mentally and physically exhausted.
[12] Mr Barbour opposed the granting of leave on the grounds that:
a. granting leave may delay the matter;
b. there was a power imbalance between himself as a newly admitted lawyer and Mr Derbas who was a more experienced lawyer;
c. Mr Derbas personal circumstances were irrelevant; and
d. the granting of leave could form the basis for a costs application.
[13] The Hearing requires the determination of a jurisdictional objection.
[14] As observed by Senior Deputy President Richards in CEPU v UGL Resources Pty Ltd3:
“[23] It appears to me that where the Respondent (in this case) seeks to agitate a jurisdictional issue then it would follow that representation by a lawyer would be a reasonable course. Jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities.
[24] In the situation currently before me, permission to appear for purposes of any jurisdictional considerations appears to me to be justified. That is, by granting permission for Mr Copeland to appear the efficiency with which the jurisdictional issue is dealt with would be assisted.
[25] It also appears to me that permission to appear in the substantive considerations should be granted to Mr Copeland for other reasons. Where jurisdiction is in question, it is important in any subsequent considerations to give close regard to the boundaries of the matters subject to the dispute and any proposed remedy. In such circumstances, a lawyer familiar with jurisdictional argument would ensure the matter would be dealt with more efficiently than would otherwise be the case.”
[15] I am satisfied that the nature of the jurisdictional objection creates complexity in the hearing of this Application. It appears from the correspondence received by Chambers and materials filed by Mr Derbas that he is not familiar with or experienced in employment law. I accept that the extensive materials filed by Mr Barbour, in excess of 500 pages, add to the complexity of the matter and that when combined with Mr Derbas’s personal circumstances are likely to limit his ability to effectively and efficiently present the case of Derbas Lawyers.
[16] I am satisfied that the application for leave to be represented is not simply a mechanism to increase costs for the purposes of a subsequent costs application.
[17] Mr Barbour is admitted as a lawyer and has demonstrated that he is able to identify and clearly articulate the legal principles he believes are relevant to the Application, to coherently express his evidence and to comprehend and respond to evidence and legal principles posed by the respondent. There is nothing to suggest that the granting of leave to Derbas Lawyers will hamper Mr Barbour’s capacity to properly present his own case.
[18] The granting of leave will not delay the determination of the Application. Rather I am satisfied that it will make the Hearing proceed more efficiently.
[19] Having considered the submissions of the parties and being satisfied that the requirements in sub section 596(2) of the FW Act have been met I consider it appropriate in all the circumstances to exercise my discretion to grant leave to Derbas to be represented by a lawyer.
[20] At the Hearing Mr Barbour represented himself and Derbas were represented by Mr George Minas of Counsel.
[21] The Directions required the parties to file their witness and documentary evidence in advance of the Hearing. In accordance with the Directions Mr Barbour filed a witness statement on his own behalf, gave oral evidence at the Hearing and was cross examined by Mr Minas.
[22] In advance of the Hearing Derbas Lawyers filed witness statements by Mr Anthony Byrne (Mr Byrne) and Mr Muhammad Maarij Farooqi (Mr Farooqi). Mr Byrne was employed by Derbas Lawyers as a solicitor. Mr Farooqi is an international student who volunteered at Derbas Lawyers during the time that Mr Barbour asserts that he was employed by Derbas Lawyers.
[23] Mr Byrne was not present at the time the Hearing was listed to commence and proceedings were delayed by half an hour to accommodate his late arrival. Mr Byrne gave oral evidence at the Hearing and was cross examined by Mr Barbour. Mr Farooqi did not attend the Hearing and therefore was not available for cross examination. This has impacted on the weight to which I given his evidence where it is contested by Mr Barbour.
[24] The submissions of the Derbas Lawyers contain extensive content of an evidentiary nature. It appears that this content is the evidence of Mr Derbas. However, this content was not captured in any sworn witness statement or in the oral evidence of Mr Derbas, Mr Farooqi or Mr Bryne. This has impacted on the weight to which I have attached to this evidence.
[25] I note that Mr Barbour’s submissions also contained a substantial amount of content of an evidentiary nature not contained in his witness statement. I do note that Mr Barbour make himself available for cross examination and this has impacted on the weight to which I have attached to his evidence.
[26] A Digital Court Book containing the submissions, evidence and authorities relied upon by the parties was jointly tendered by the parties and marked as the only exhibit at the Hearing.
[27] In reaching my decision, I have considered all the submissions made, and the evidence tendered by the parties even if not expressly referred to in these reasons for decision.
[28] Derbas Lawyers is a legal practice, registered with the Law Society of New South Wales, operating in South West Sydney. Mr Derbas is the principle of the firm. Mr Byrne is a social acquaintance of Mr Barbour and was employed by Derbas Lawyers as a solicitor.
[29] Mr Barbour completed his graduate diploma of legal practice on 7 July 2020. He was admitted to the legal practice on 14 August 2020. 4
[30] In his witness statement Mr Barbour says that on 15 August 2020 he was approached by Mr Byrne who organised a meeting with him and Mr Derbas. Mr Barbour alleges that Mr Byrne organised the meeting for Mr Barbour to meet with Mr Derbas in the context of the Derbas Lawyers experiencing a shortage of staff. 5 The implication from Mr Barbour’s evidence is that he was actively recruited by Mr Byrne. However, the evidence reveals that Mr Byrne’s contact and the subsequent meeting was purely of a social nature.
[31] Text messages exchanged between Mr Byrne and Mr Barbour reveals that Mr Byrne and Mr Barbour were social acquaintances from university and that on 15 August 2020 Mr Byrne replied to a comment on social media by Mr Barbour that he had recently been admitted. Mr Barbour and Mr Byrne then began discussing their career aspirations and agree to catch up socially. Mr Byrne suggested that Mr Barbour meet him in Bankstown where Mr Byrne was working. Mr Barbour indicated that would be convenient for him because he lived in the area and suggested that they meet at 3pm. Mr Byrne said that the time suited him because his principal, Mr Derbas, usually left the office at 2.30pm to collect his children from school.
[32] The evidence is that at that time Derbas Lawyers were not recruiting lawyers and that firm consisted of only Mr Byrne and Mr Derbas. 6
[33] In his witness statement Mr Barbour says that he met with Mr Derbas on 17 August 2020 and that during that meeting Mr Derbas and he discussed and agreed terms and conditions for Mr Barbour’s employment by Derbas Lawyers. 7
[34] At the Hearing Mr Barbour gave evidence that his conditions of employment were discussed and agreed between him and Mr Derbas over a series of two or three meetings. 8
[35] However, the evidence reveals that while Mr Barbour met with Mr Byrne on 17 August 2020 he did not meet Mr Derbas until 19 August 2020 when he sent the following text message: 9
“Hey man it was good catching up with you and meeting Memtaz….”
[36] There is no evidence to suggest that Mr Barbour met with Mr Derbas on any other occasion before Mr Barbour alleges he commenced employment with Derbas Lawyers.
[37] According to Mr Byrne the meeting between Mr Derbas and Mr Barbour occurred on 19 August at the request of Mr Barbour who indicated that he was looking for an opportunity for unpaid work experience.
[38] In his Form F8 – General Protections application involving dismissal (Form F8) Mr Barbour says at Question 3.1: 10
“I was initially engaged on a part-time basis, where it was discussed that I would work a period of 3 days and will be unpaid until I could demonstrate that I am able to work and handle cases on my own. If I were to bring my own cases to the firm, I would receive 25% commission of the case fee.”
[39] In his witness statement Mr Barbour says that when he met with Mr Derbas he was offered and he accepted employment on the following conditions: 11
“… an unpaid position with the firm until I can work on matters on my own and I will then be paid a base salary of $250 per week. In addition, if I refer any clients, I will receive 25% commission on any cases I refer.”
[40] In his submissions Mr Barbour asserts that he was also offered a commission of 30% in addition to a base salary of $250 per week once he had demonstrated his competency. I note that the commission of 30% is not mentioned in Mr Barbour’s witness statement or in his Form F8.
[41] At the Hearing Mr Barbour asserted that the terms of employment were agreed with Mr Derbas over the course of two or three meetings at his meeting with Mr Derbas were as follows: 12
a. Derbas Lawyers would provide Mr Barbour with 1000 business cards. 13
b. He would work between 9am and 5pm on Monday, Wednesday and Friday. 14
c. He would be required to meet certain dress standards. 15
d. He would be unpaid until he had proved his competence. 16
[42] Mr Barbour says that he understood the role to be an opportunity to prove himself and demonstrate that he could work as a lawyer and he acknowledges that there was no agreement for him to be paid for the work he was initially performing. 17
[43] Following the meeting on 19 August 2020 Mr Barbour provided copies of statements of service, his academic transcript, his admission certificate, and his passport to Mr Byrne. 18 Mr Derbas says that he was unaware that this information was provided by Mr Barbour. Mr Byrne confirms that he did not forward this information to Mr Barbour.19
[44] Mr Barbour did not provide and was not asked at that time or subsequently to provide his taxation number or superannuation fund details.
[45] Mr Barbour informed Mr Byrne that he did not yet have his practising certificate but had applied for it. 20 It is unclear when Mr Barbour obtained his practising certificate and when he became able to legally practise as a solicitor. Mr Derbas asserts that this was not before late October 2020.
[46] On 20 August 2020 Mr Byrne told Mr Barbour that he would organise business cards for him and get photos and a biography organised for the firm’s website. 21 Mr Derbas says that these cards were not produced until October 2020 and not provided to Mr Barbour until November 2020.
[47] Mr Barbour commenced his role at Derbas Lawyers on 24 August 2020. 22
[48] On 7 September 2020 the firm made a social media post with a photo of Mr Byrne, Mr Derbas, Mr Farooqi stating that: “Derbas Lawyers welcome Adam Barbour and Maarij Farooqi to our legal team in Bankstown.” 23
[49] Mr Barbour says that he consistently worked Monday, Wednesday and Friday averaging 20 hours per week and that this increased to four days per week after some time.
[50] Mr Derbas says that Mr Barbour had no fixed days and attended the office at times that suited Mr Barbour. 24 He says that Mr Barbour also took breaks at his own choosing. Mr Derbas says consistent with this Mr Barbour was never given or asked to complete a timesheet.
[51] Mr Barbour concedes that during the period he attended at the offices of Derbas Lawyers he was self-employed as an Uber Driver and that he was in receipt of Job Keeper payments. He says that he did not perform Uber work if he was required to work by Derbas Lawyers. 25
[52] Based on Mr Barbour’s own records his hours of work per day at Derbas Lawyers ranged from 4.5 hours to 9.5 hours per day and his days of work varied from week to week. 26
[53] Mr Farooqi’s evidence is that it was made clear to both he and Mr Barbour that they were volunteers and not employees and that they were both free to attend the office whenever it suited them. 27
[54] On 24 November 2020 Mr Barbour called Mr Derbas and queried when he would be paid. He says that Mr Derbas told him that he would start being paid at the beginning of January 2021. 28
[55] On 25 November 2020 Mr Barbour entered an appearance at the Magistrates Court on behalf of a client of the firm. The appearance was a simple plea. He was given a script for the appearance which set out precisely what he was required to say. 29 Mr Derbas said he allowed Mr Barbour to do the mention at Mr Barbour’s request, that the mention was not successfully completed by Mr Barbour and the client was not charged for this work.30
[56] Mr Barbour says that the same day Mr Derbas asked him to transfer $4000 into an account in his name to purchase a property overseas and that he declined to do so. 31 Mr Derbas denies ever making such request and points out that the alleged amount is so small that it could not have credibly been the subject of a property purchase.32 I note that Mr Barbour has not submitted any evidence in support of his assertion that the request was made.
[57] Later that same morning Mr Derbas sent Mr Barbour a text stating: 33
“Adam I am restructuring the firm to meet the current economic crisis as such I[SIC] am no longer able to offer you volunteer work.
Thanks for all the assistance you have provided but i[SIC] have very limited choices whilst I need to make a commercial decision.”
[58] Mr Barbour tended a text exchange between himself and Mr Maarij which he says occurred the day after his dismissal in which Mr Barbour describes the circumstances of his departure from the firm as follows: 34
“Yeah .. I don’t work with you anymore.
Memtaz told me he doesn’t need volunteers anymore
So he sacked me yesterday.
I was shocked tbh dud.”
[59] Mr Barbour tended a further text exchange between himself and Mr Maarij on 27 November 2021 in which Mr Barbour asks Mr Maarij what Mr Barbour had said to him about Mr Barbour’s departure. Mr Maarij says: 35
“He just said he sacked you
And nothing
No reason.
I tried asking why and what happened cuz I don’t know anything.”
[60] Mr Barbour submits that he was an employee of Derbas Lawyers and that he was dismissed by Derbas Lawyers and therefore eligible to make the Application.
[61] The Application was made pursuant to section 365 of the FW Act. Section 365 of the FW Act provides that:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
[62] The term ‘dismissed’ is defined in section 12 of the FW Act by reference to section 386. The term ‘dismissed’ is defined at section 386 of the FW Act as follows:
“Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[63] While section 386 is found in Part 3-2 Unfair Dismissal of the FW Act the definition of ‘dismissed’ contained in section 386 of the FW Act has been applied by the Courts to section 365 general protections matters and I have adopted that approach in this Application.
[64] It is not contested, and I am satisfied that sub section 386(2) of the FW Act has no application in this case.
[65] For the purposes of section 386 of the FW Act a dismissal only occurs if a person’s employment with his or her employer is terminated. It is therefore necessary to determine whether Mr Barbour was an employee of Derbas Lawyers.
[66] There is no comprehensive definition of the terms ‘employer’ and ‘employee’ in the FW Act. The FWC and its predecessors have determined the meanings of these terms by reference to their established meaning at common law. 36
[67] For the purposes of common law an employment relationship can only be said to exist where a person agrees to perform work pursuant to a ‘contract of service’ or contract of employment. If there is no contract of employment identified between the parties then Mr Barbour can not be an employee. 37
[68] In Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club [2011] FWA 1143 Commissioner Steel set out the principles for determining whether a contract of employment exists between parties as follows:
“The law requires that there are certain basic essential requirements or elements for an agreement to be legally enforceable as a contract. These are described in Professor Andrew Stewart’s book, Stewart’s Guide to Employment Law and in various other forms in texts such as Macken, McCarry & Sappideen’s The Law of Employment as being the following essential elements:
• The parties must have reached agreement as to the terms of the contract.
• The agreement must involve the provision of “consideration” by each party.
• The agreement must be intended by the parties to be legally enforceable.
• The terms of the agreement must be certain and complete and there must be no element of illegality or any other vitiating factor that would deprive the agreement of legal effect.” [FOOTNOTES OMITTED]
[69] It can be particularly difficult to distinguish between internships, unpaid work experience, or clerkships (as they are more commonly known in the legal industry) and employment. However, it is important to do so to ensure the integrity of the standards and protections established by the FW Act.
[70] Factors which are relevant in distinguishing work experience from employment include the following: 38
a. The placement is mainly for the benefit of the person rather than the business.
b. The periods of placement are relatively short.
c. The person is not required to or expected to do productive work.
d. There is no significant commercial gain or value for the business derived out of the work performed by the person.
[71] Where a contract is not evidenced in writing, the court must infer from the parties whether they have reached an agreement.
[72] In his witness statement Mr Barbour asserts that he met with Mr Derbas on 17 August 2020 and that during that meeting he was offered, and he accepted, employment. 39 The implication from Mr Barbour’s evidence is that he was actively recruited by Derbas Lawyers. However, the evidence reveals that Mr Byrne’s initial contact with Mr Barbour and his meeting with Mr Barbour on 17 August 2020 was purely of a social nature.
[73] In his witness statement Mr Barbour says that he met with Mr Derbas on 17 August 2020 and that it was during that meeting that Mr Derbas and he discussed and agreed terms and conditions for Mr Barbour’s employment by Derbas Lawyers. 40
[74] At the Hearing Mr Barbour gave evidence that the terms of his employment with Derbas Lawyers were agreed by him and Mr Derbas at a series of two or three meetings rather than on 17 August 2021. Mr Barbour conceded that at the first of the two or three meetings no terms of employment were agreed. 41
[75] The evidence reveals that Mr Barbour did not met with Mr Derbas until 19 August 2020. 42 There is no evidence to suggest that Mr Barbour met with Mr Derbas on any other occasion before Mr Barbour alleges he commenced employment with Derbas Lawyers.
[76] I accept Mr Byrne’s evidence that the meeting between Mr Derbas and Mr Barbour occurred on 19 August at the request of Mr Barbour who indicated that he was looking for an opportunity for unpaid work experience. This is consistent with Mr Barbour’s own admissions that the role was initially unpaid, 43 the evidence that Mr Barbour was in receipt of an alternative income stream in the form of Job Keeper payments and the evidence of Mr Farooqi that he and Mr Barbour worked as volunteers at Derbas Lawyers. It is also consistent with the lack of evidence that Derbas Lawyers were recruiting for additional employees at that time.44
[77] In his witness statement Mr Barbour says that when he met with Mr Derbas he was offered, and he accepted, employment on the following conditions:
“… an unpaid position with the firm until I can work on matters on my own and I will then be paid a base salary of $250 per week. In addition, if I refer any clients, I will receive 25% commission on any cases I refer.”
[78] At the Hearing Mr Barbour asserted that at the same meeting the following other terms of employment agreed with Mr Derbas: 45
a. Derbas Lawyers would provide Mr Barbour with 1000 business cards. 46
b. He would work between 9am and 5pm on Monday, Wednesday and Friday. 47
c. He would be required to meet certain dress standards. 48
d. He would be unpaid until he had proved his competence. 49
[79] Mr Derbas denies discussing or agreeing any terms of employment with Mr Barbour either at the August meeting or subsequently.
[80] Mr Derbas specifically denies discussing any rates of pay. The evidence in relation to what Mr Barbour says he was offered and agreed to be paid is discussed in further detail below. However, I note here that Mr Barbour’s evidence with respect to the alleged rate of pay is both inconsistent and implausible. I note that evidence indicates that Mr Barbour did not provide and was not asked to provide his taxation number or superannuation fund details which would normally be provided by an employee expecting payment. I also note that Mr Barbour conceded at the Hearing that Mr Derbas never stated when he would start paying him. 50
[81] Mr Derbas asserts that no fixed times or days of work were agreed between the parties and that Mr Barbour came and left the office as he pleased and took breaks whenever he chose. 51 This is consistent with the evidence of Mr Farooqi. It is also consistent with Mr Barbour’s records of his hours of work per day (which ranged from 4.5 hours to 9.5 hours per day) and his records of his days of work (which varied from two to four days per week).
[82] I also note that Mr Barbour concedes that he understood the role to be an opportunity to prove himself and demonstrate that he could work as a lawyer and he acknowledges that there was no agreement for him to be paid for the work he was initially performing. 52
[83] Information about appropriate dress standards in a legal office would be consistent for volunteers, some contractors and for employees and therefore is not of itself of assistance in assessing the nature of Mr Barbour’s relationship with Derbas Lawyers.
[84] On the evidence before me I believe it is unlikely that Mr Barbour and Mr Derbas discussed the issue of the provision of business cards at the meetings at which Mr Barbour says he and Mr Derbas agreed terms of employment.
[85] I note that at the Hearing Mr Barbour conceded he himself was confused as to what the terms of his engagement were. 53
[86] Based on the evidence before me I am not satisfied that the parties had reached an agreement as to the terms of a contract. In the absence of this element necessary for the existence of a contract of employment between the parties I am not satisfied that Mr Barbour was an employee of Derbas Lawyers.
[87] For an agreement to be legally enforceable there must be some element of bargained exchange that involves each party doing or promising to do something of value in return for what the other is doing or promising to do. What each party provides to the other must have some value in the eyes of the law. 54
[88] In his witness statement Mr Barbour says that when he met with Mr Derbas he was offered, and he accepted, employment on the following conditions:
“… an unpaid position with the firm until I can work on matters on my own and I will then be paid a base salary of $250 per week. In addition, if I refer any clients, I will receive 25% commission on any cases I refer.”
[89] Mr Barbour did not refer any clients and was not paid any commission.
[90] Mr Barbour conceded at the Hearing that Mr Derbas never stated when he would start paying him and never did pay him. 55
[91] Mr Derbas denies that he ever offered or agreed to provide Mr Barbour with any consideration, in particular he is adamant no rate of pay was proposed, discussed or agreed.
[92] The amount Mr Barbour asserts was agreed he would be paid seems implausible unless he was confident of securing high value, or high volume, clients. A base salary of $250 for full time work would amount to a payment of $50 per day when then national minimum wage was $19.84 per hour. Even if the amount of $250 was to be paid for three days work it only equates to payment of $83 per day.
[93] Mr Barbour’s evidence as to what it was agreed he would be paid is inconsistent. In his submissions at page 5 of the Digital Court Book Mr Barbour asserts that he was also offered and accepted that he would be paid a 30% commission in addition to his base rate of pay. 56 This purported commission is inexplicably not mentioned in his evidence at the Hearing,57 in his witness statement, his Form F8 or elsewhere in his submissions when he asserts what it is he says that the parties agreed he would be paid. 58 The reference to “base pay” in his witness statement, in his Form 8A and elsewhere in his submission appears in the context of an additional payment in the form of a 25% commission for the referral of clients. Given the other inconsistencies in his evidence it seems likely that the 30% commission over and above the $250 base rate is an embellishment to his witness statement.
[94] There is no evidence that Mr Barbour at any time provided his taxation number, bank account details or preferred superannuation fund consistent with an expectation of payment.
[95] Even if the parties did agree that Mr Barbour would be paid a fee for any new client he referred to the firm the referral of clients is not necessarily ‘work’ indicative of employment. Referral bonuses might be offered to clients, family and friends or other third parties.
[96] The evidence is that Mr Barbour did not receive any payment from Derbas Lawyers whether it be by way of wage, honorarium, reimbursement, or some other form of payment. Nor is there evidence of any other form of ‘payment in kind’ for example the provision of free accommodation, 59 a slab of beer,60 or meat from a slaughtered bullock,61 which have in other cases been found to constitute consideration founding an employment relationship.
[97] I am not satisfied that the training or supervision Mr Barbour received from Derbas Lawyers was in law 62 or in fact sufficient to constitute consideration to support a finding of employment.
[98] Based on the evidence before me I am not satisfied that the parties agreement involved the provision of a ‘consideration’ by each party. In the absence of this element necessary for the existence of a contract of employment between the parties I am not satisfied that Mr Barbour was an employee of Derbas Lawyers.
[99] Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club provides the following guidance in determining whether an agreement is intended by the parties to be legally enforceable:
“[40] An agreement to do something is only regarded as a contract if the parties intended the agreement to be legally binding and carry legal consequences. That is, if something goes wrong, if one party failed to act in accordance with the agreement, the other party would be entitled to take legal action to seek performance. In employment situations where work is intended to be performed for payment, the necessary legal relations are generally present.
[41] There are exceptions such as Teen Ranch Pty Ltd v Brown and Redeemer Baptist School v Glossop & Ors and counter-exceptions of Ermogenous v Greek Orthodox Community of SA Inc.
[42] Volunteer work by its definition does not, in general, involve this element as the usual motivation for the arrangement is altruism rather than private gain or material advantage. That is, the commitments between parties in such arrangements are moral rather than a legal and formal one. In this matter the applicant provided work in a capacity which is argued to be employment and have a contract of employment. The respondent asserts that she was a volunteer or other than an employee. In determining further whether a contract existed the question must be asked, can it reasonably be inferred that the parties intended to create legal relations?” [FOOTNOTES OMITTED]
[100] Mr Barbour says that an intention on the part of Derbas to create legal relations is evidenced by the following:
a. His practising certificate described him as an “Employee of a Law Practice” and identified his place of practise as “Derbas Lawyers. 63
b. He held an account with Legal Aid NSW as a solicitor under the name of Derbas Lawyers on Legal Aid’s panel of law firms. 64
c. Derbas Lawyers printed 1000 business cards with his name and the title ‘Lawyer’. 65
d. Derbas Lawyers made a social media post welcoming him to the firm. 66
e. He performed fee paying work for Derbas Lawyers such as preparing a draft: family law contravention application, affidavit, a liquidated claim for two motor vehicle accidents and letters of offer for the recovery of debts. 67
f. He incurred expenses such as parking fees and tolls while performing tasks for Derbas Lawyers for which he was not reimbursed. 68
[101] Mr Barbour says that an intention on the part of Derbas to create legal relations is evidenced by promotional/relationship materials prepared by Derbas which suggested that he was employed by the firm as a lawyer. The materials Mr Barbour relies upon are the business cards which bore the contact details of the firm and described Mr Barbour as a lawyer and a photo circulated to clients welcoming him to the firm which was circulated on social media.
[102] Mr Derbas says that the social media post made on 7 September 2020 occurred to welcome Mr Farooqi and Mr Derbas ‘to the team’ so that they did not feel excluded and did not identify the capacity in which they joined the ‘team’. 69 Mr Derbas says that the business cards were not printed until October 2020 and not provided to Mr Derbas until November 2020 and that therefore could not be relied upon as evidence of an intention to create legal relations before that time. In relation to the period in which the cards were available Mr Derbas says that the business cards were provided simply to boost Mr Barbour’s self esteem and not hold him out as an employee of the firm. They state, consistent with his qualifications, that he is a lawyer but do not describe him as a solicitor employed by the firm. Mr Derbas says that the business cards did not include the word ‘volunteer’ as it was thought would embarrass Mr Barbour.70
[103] I am not satisfied that of themselves the business cards or the social media post provide proof of an intention to create a legal relationship of employment on the part of the parties. Although the appropriateness of such a practise is questionable given the potential for clients to be misled as to the skills, experience, qualifications and employment status of volunteers or work experience placements in such circumstances.
[104] Mr Barbour submits that the work that he undertook was not ‘moral’ in nature because it was fee paying work rather than pro bono. 71
[105] Mr Derbas asserts that Mr Barbour did not receive his practising certificate until mid October and therefore could not lawfully perform work as a legal practitioner before this date. 72 It is unclear whether Mr Barbour’s practise certificate identified his place of practise as Derbas Lawyers based on information provided to the Practice Board by Mr Barbour or by Derbas Lawyers.
[106] Mr Derbas insists that Mr Barbour was merely volunteering in order to gain exposure to the legal practice by observing practitioners at work and performing simple tasks routinely allocated to summer clerks. Mr Derbas says that no financial benefit was ever gained for the firm from the tasks that he performed. 73 In fact he says that Mr Barbour’s work required such substantial amendment that his performance of such work was a business cost because it took much longer for the supervising practitioner to correct his work that it would have taken them to perform the work themselves.74 For example Mr Derbas says that the contravention application that Mr Barbour points to as evidence that he was performing work for the firm took Mr Barbour three weeks to draft and was so deficient that it was destroyed and not used in any way in the application filed in court.75
[107] There is no evidence that the tasks that Mr Barbour performed were performed for commercial gain by Derbas Lawyers.
[108] The benefit to be gained by such an arrangement is largely in the nature of experience which improves Mr Barbour’s employability. The time spent reviewing and amending his work is a business cost and ought not be recoverable from the client as fee paying work. The provision of the opportunity of an internship or clerkship might be considered ‘moral’ in nature in that it permits law students or recent law graduates who haven’t secured employment an opportunity to observe the practise of law to guide their decision to become a legal practitioner and/or their choice of practise area.
[109] Mr Derbas says that Mr Barbour had no authority to incur expenses on behalf of the firm and should not have done so without direct approval from himself. Further he asserts that Mr Barbour never presented the invoices to him and that the first time he was aware that Mr Barbour had incurred the costs was when Mr Barbour filed this Application. Personally incurring costs associated with the performance of tasks for an organisation is more common in the case of a volunteer than an employee.
[110] Mr Barbour is a trained and admitted lawyer. He does not suffer from the vulnerabilities of the very young, the illiterate, the uneducated, those whose English skills are poor or who reside in Australia by virtue of a visa. There is nothing in his circumstances which would suggest that he was unaware of his legal entitlements to be paid if he was engaged as an employee. If it had been the case that he believed that he had entered into a legally enforceable arrangement of employment with Derbas Lawyers then one would expect that he would ensure that he had provided his taxation and banking details to Derbas Lawyers and ensured that he received payment within a normal pay period be it a week, a fortnight or a month from commencement.
[111] The evidence does not suggest that either party held the view that Derbas Lawyers was entitled to require Mr Barbour to perform tasks on particular days or particular times or that as a matter of fact Derbas, Lawyers attempted to. Rather it appears that Mr Barbour provided an indication of his anticipated availability. As a matter of fact, he attended at the firm’s premises on different days and at different times than he says the parties agreed he would work.
[112] While a client of the firm might not unreasonably presume that Mr Barbour was employed by Derbas Lawyers I am not satisfied that this is evidence that the parties intended to enter into a legally enforceable arrangement. Although this might have eventuated if Mr Derbas had been impressed by the tasks that Mr Barbour performed. At the highest what can be said of the evidence is that it indicates that the parties might have in future decided they wished to enter into legally enforceable arrangements. I am not satisfied that Mr Derbas had yet reached that state of mind and I think it likely that he would not have in the future.
[113] The fact that the parties contemplate the possibility of having legal relations in the future is not of itself sufficient. The parties must have intended to create enforceable legal relations in the period in question. 76
[114] Based on the evidence before me I am satisfied that Derbas Lawyers did not intend the arrangement they had with Mr Barbour to be legally enforceable. In the absence of this element necessary for the existence of a contract of employment between the parties I am not satisfied that Mr Barbour was an employee of Derbas Lawyers.
[115] For the reasons outlined above I am not satisfied that an agreement had been reached between the parties which was certain or complete.
[116] The evidence suggest that the placement mainly provided a benefit for Mr Barbour rather than the business. With the exception of the mention at the Waverly Court on 25 November 2020 the work Mr Barbour performed appears to have been supervised or reviewed by an employee of the practice. The evidence is that Mr Barbour’s work required substantial amendment. The benefit to be gained by such an arrangement is largely in the nature of experience which improves Mr Barbour’s employability. The time spent reviewing and amending his work is a business cost not a business benefit.
[117] The period of placement was fourteen weeks which would be the outer limits of what might be described as a relatively short period.
[118] I am satisfied on the evidence before me that Mr Barbour was offered the opportunity to do productive work but was not expected or required to do productive work.
[119] Mr Barbour says that Mr Derbas set tasks for him to complete such as drafting letters, affidavits, statement of claims, filing in court, attending client conferences, legal research, attending to a mention and doing other work necessary for the function of his business. Mr Barbour says that Derbas obtained commercial gain from this work. He cites as an example the Mention at Waverly Court in relation to which he says the client was charged fees of $2,000. 77
[120] Mr Derbas contends that any letters, affidavits, and other documents drafted by Mr Derbas were significantly changed and no work has been charged to firm’s clients. He says that any other tasks Mr Barbour performed were ‘observational’ in nature.
[121] Mr Barbour points out that the appearance at Waverly Court could not have been ‘observational’ because he attended the court by himself. 78 Mr Derbas says that the client was not charged for this work because it was not correctly performed by Mr Barbour notwithstanding that Mr Barbour was provided with a script for the task.
[122] Even if the Waverly Court appearance was charged to the client based on the evidence before me I am not satisfied that a significant commercial gain or value was derived by Derbas Lawyers from the work performed by Mr Barbour.
[123] It can be particularly difficult to distinguish between internships, work experience, or clerkships (as they are more commonly known in the legal industry) and employment. It is important to do so to ensure the integrity of the standards and protections established by the FW Act. It is also important to ensure that the opportunity for genuine work experience or for society to benefit from pro bono service is not lost by characterising all time spent in a workplace as employment when the necessary elements of employment do not exist.
[124] Mr Barbour submits that as was held to be the case in Emergenous v Greek Orthodox Community (2002) 209 CLR 95, Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 140 and Strachan v Moodie [2012] NZEmpC 95 he is an employee. In my view each of these cases can be differentiated from Mr Barbour’s.
[125] In Emergenous v Greek Orthodox Community (2002) 209 CLR 95 it was held that the applicant, who was an Archbishop of the Greek Orthodax Church, was an employee based on findings of fact that he had been told that he would be an employee, he was paid a stipend from which PAYG was withheld and he performed the duties in question for more than 20 years.
[126] In Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 140 the applicants initially completed periods of unpaid work experience and were then engaged for periods of between 6 months and 12 months respectively as producers for a radio program. They received a honourium/payment for each shift they worked which was characterised as reimbursement for expenses. They were held to have commenced employment after the period of unpaid work experience was completed.
[127] In Strachan v Moodie [2012] NZEmpC 95 the applicant initially commenced ‘volunteering’ for a sole practitioner observing the practise and performing para legal work while she completed post graduate studies and worked part time as a nurse. It is held that the arrangement morphed into employment after a more than a year when she began working full time in the practice, was given complete responsibility for the administration of the practice and it was agreed that she would be paid.
[128] Each of these cases can be differentiated from Mr Barbour’s because the applicants in each of those cases were in receipt of consideration (albeit not necessarily described at the time as wages) were performing the full range of duties that an employee would perform without supervision and were engaged so for extended periods of time. Critically in each of these cases there was an expectation by the employer and the applicant that the applicant would attend and perform the duties when rostered rather than at their will.
[129] Mr Barbour’s circumstances are in my view more analogous with cases where an employment relationship was held not to exist such as Pacesetter Homes Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (1994) 57 IR 449 in which unemployed school leavers were given the opportunity to gain work experience for up to six months but were under no obligation to attend on any particular day.
[130] The evidence before me suggests that to date the relationship between Mr Barbour and Derbas Lawyers was one of work experience not employment. There is no evidence that Derbas needed or wanted additional staff. Derbas Lawyers did not advertise for employees or volunteers or otherwise proactively recruit Mr Barbour to perform paid or unpaid work.
[131] Even on Mr Barbour’s own evidence there was initially no expectation on his part to receive wages for the time he spent at the office of Derbas Lawyers. Throughout the period he alleges he was employed by Derbas Lawyers he continued to be nominally employed as an Uber driver and was in receipt of Job Keeper payments. At no stage was Mr Barbour paid any form of payment by Derbas Lawyers be it by way of wage, honorarium or reimbursement.
[132] Mr Barbour had not yet received his practise certificate at the time he commenced attending the offices of Derbas Lawyers. He had only recently graduated and on the evidence before me was not yet capable of performing the duties of a solicitor even if they had been allocated to him.
[133] However, as Mr Barbour’s observations of the work performed by Mr Byrne and Mr Derbas led to a capacity for him to perform ‘work’ for Derbas Lawyers and he performed work, (albeit perhaps of limited complexity and not of a particularly high standard) for an increasingly longer period of time there would come a tipping point at which he morphed from a volunteer to an employee. The tipping point was fast approaching and quite appropriately Mr Barbour raised this with Mr Derbas. Mr Derbas would have appeared to have understood this by informing Mr Barbour that he was no longer able to offer him the opportunity to volunteer.
[134] On the balance of the evidence before me I am not satisfied that a contract of employment had been formed as at the date Mr Barbour says that he was dismissed. If there is no contract of employment identified between the parties then Mr Barbour can not be an employee. 79
[135] For the purposes of section 386 of the FW Act a dismissal only occurs if a person’s employment is terminated. As I am not satisfied that Mr Barbour is an employee he can not have been dismissed for the purposes of section 386 and is therefore ineligible to make the Application.
[136] The Application is therefore dismissed. An order to this effect will issue with this decision. 80
DEPUTY PRESIDENT
Appearances:
Mr A Barbour appeared on his own behalf
Mr G Minas appeared on behalf of the Respondent
Hearing details:
2021
Perth
4 April
Printed by authority of the Commonwealth Government Printer
<PR728207>
1 [2020] FCAFC 152.
2 Ibid.
3 [2012] FWA 2966, [23] – [26].
4 Digital Court Book 590, 595, 608.
5 Digital Court Book 564.
6 Digital Court Book 589.
7 Digital Court Book 564.
8 Transcript PN168.
9 Digital Court Book 580-581.
10 Digital Court Book 669.
11 Digital Court Book 564.
12 Transcript PN162.
13 Transcript PN164
14 Transcript PN175.
15 Transcript PN173.
16 Transcript PN177.
17 Digital Court Book 669.
18 Digital Court Book 582, 593.
19 Digital Court Book 75.
20 Digital Court Book 593.
21 Digital Court Book 584.
22 Digital Court Book 564.
23 Digital Court Book 676.
24 Digital Court Book 592.
25 Digital Court Book 564, Transcript PN177 to PN181.
26 Digital Court Book 683-689.
27 Digital Court Book 711.
28 Digital Court Book 654.
29 Digital Court Book 615.
30 Digital Court Book 700.
31 Digital Court Book 671.
32 Digital Court Book 703-704.
33 Digital Court Book 568.
34 Digital Court Book 571.
35 Ibid.
36 Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFB 8307 at [25].
37 Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club [2011] FWA 1143.
38 Ibid.
39 Digital Court Book 564.
40 Digital Court Book 564.
41 Transcript PN162.
42 Digital Court Book 580-581.
43 Digital Court Book 564.
44 Digital Court Book 696-697.
45 Transcript PN162.
46 Transcript PN164.
47 Transcript PN175.
48 Transcript PN173.
49 Transcript PN177.
50 Transcript PN198.
51 Digital Court Book 696-697.
52 Digital Court Book 669.
53 Transcript PN198 to PN199.
54 Teen Ranch Pty Ltd v Brown (1995) 87 IR 308.
55 Transcript PN198.
56 Digital Court Book 5.
57 See for example Transcript PN199.
58 See for example page 6 of the Digital Court Book.
59 Cf Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92.
60 Re McGee (1992) 41 IR 27.
61 Spackman v Morrison [2000] NSWCC 61.
62 Digital Court Book 337.
63 Digital Court Book 564.
64 Digital Court Book 566.
65 Digital Court Book 591.
66 Ibid.
67 Digital Court Book 669.
68 Digital Court Book 670.
69 Digital Court Book 691.
70 Digital Court Book 589, 691.
71 Digital Court Book 3.
72 Digital Court Book 697.
73 Digital Court Book 589.
74 Digital Court Book 696.
75 Digital Court Book 703.
76 Eldridge v Kemblawarra Child and Family Centre [1999] NSWCA 395, South Australia v Day (2000) 78 SASR 270.
77 Digital Court Book 4.
78 Ibid.
79 Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club [2011] FWA 1143.