[2021] FWC 4167
The attached document replaces the document previously issued with the above code on 6 August 2021.
(1) To address miscellaneous typographical errors.
(2) To reorder certain text in paragraphs [56] to [58] to better reflect the timeline of events.
(3) To correct the date of receipt of the final written submissions.
Associate to Commissioner McKenna
Dated 24 August 2021
| [2021] FWC 4167 [Note: An appeal pursuant to s.604 (C2021/5106) was lodged against this decision.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Prateek Patial
v
Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants
(U2020/11942)
COMMISSIONER MCKENNA |
SYDNEY, 6 AUGUST 2021 |
Application for an unfair dismissal remedy.
[1] Prateek Patial (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy. Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants (“the respondent” or “the firm”) has objected to the application primarily based on the contention that the applicant was not its employee. If the applicant is found to have been an employee, the respondent contended, in the alternative, that if there was a dismissal of the applicant then the dismissal was compliant with the Small Business Fair Dismissal Code (the “Code”). The respondent otherwise contended that if its first two objections were rejected, the application should be dismissed because the dismissal was not harsh, unjust or unreasonable.
[2] I have concluded that the relationship between the applicant was not an employee/employer relationship and, thereby, the application should be dismissed. In the alternative, if the applicant was an employee, I would in any event otherwise dismiss the application because of considerations concerning the operation of the Code. In those circumstances, it is unnecessary to consider the application in the context of any evidence and submission advanced by the parties with respect to the criteria in s.387 of the Act.
[3] The applicant graduated from law studies in September 2018 as a mature-age student. The applicant has been admitted as a solicitor of the Supreme Court of NSW since December 2018. At all times relevant to this application, the applicant was a restricted legal practitioner as he had not completed the requisite period of legal supervision. Relevantly, the applicant wished to obtain and/or continue to obtain legal supervision in connection with practising requirements, as a precursor to becoming an unrestricted legal practitioner. The applicant obtained legal supervision for a period of time with a law firm named Gondwana Lawyers Pty Ltd (“Gondwana Lawyers”) pursuant to signed arrangements between them titled “AGREEMENT FOR GENERAL USE” (upper case in original) (“the Gondwana Terms”). It appears those arrangements between the applicant and Gondwana Lawyers commenced on 17 January 2019. For reasons that are unclear (but seemingly related to an issue around payments), just a few months later, that is, around April 2019, the applicant wished to cease those arrangements with Gondwana Lawyers even though the Gondwana Terms indicated that the applicant was going to undertake supervised legal practice with Gondwana Lawyers for a year (i.e. until January 2020). The applicant sought to obtain legal supervision elsewhere. To that end, and relevantly to this application, the applicant made an unannounced visit to the respondent’s premises in April 2019, at a time when the Gondwana Terms were still in place between the applicant and Gondwana Lawyers.
[4] What unfolded in connection with the subsequent commencement of the arrangements as between the applicant and Amit Pall, the director and principal of the respondent firm, was strongly disputed both on the facts and as to the characterisations. In any event, the applicant and the respondent, through Mr Pall, entered signed arrangements (“the Terms”) which largely paralleled those that earlier had been made between the applicant and Gondwana Lawyers in the Gondwana Terms.
[5] In late-August 2020, the arrangements between the applicant and the respondent came to an acrimonious end – involving, among other matters, a heated discussion between the applicant and Mr Pall, and the applicant refusing to leave the respondent’s premises when asked or told to do so by Mr Pall. There was ensuing police involvement as a result of Mr Pall and the applicant each separately telephoning for the NSW Police Force. No further action was taken by the police that day, or subsequently, in respect to the parties’ allegations and counter-allegations. Exchanges of correspondence ensued. As will be outlined later in the decision, the relationship between the applicant and the respondent was formally terminated by Mr Pall on 28 August 2020.
[6] Before turning to a consideration of the threshold jurisdictional point, I propose to note that the hearing (which was allocated to me concerning both jurisdiction and merits) ran to an atypical four days – atypical considering the narrow scope of matters of actual relevance, albeit some time was lost through endeavours to settle the matter during the course of the hearing itself. Regrettably, much of the evidence adduced by the applicant and/or matters arising in his unfocussed cross-examination of the respondent’s two witnesses, and in his oftentimes discursive evidence and submissions, was not only irrelevant, but manifestly irrelevant, to the matters properly before me for determination. Delays were compounded by the applicant seeking to have admitted into evidence materials he filed and served well outside the timeframes specified in the directions. Moreover, the Law Society of New South Wales (the “Law Society”), somewhat irregularly I thought, sent directly to me unsolicited correspondence about certain matters part-way through the hearing. The applicant confirmed that this correspondence from the Law Society had been sent to me at his behest.
[7] There was much in the applicant’s cross-examination of Mr Pall about matters which are properly or relevantly the domain of the Law Society and, similarly, various matters arising in the respondent’s case are also properly or relevantly matters for the Law Society or the Office of the Legal Services Commissioner; being professional-type matters which are not relevantly for determination by me. Other matters addressed in the applicant’s evidence or his cross-examination of Mr Pall included, for instance, invoices the applicant generated immediately around the time of the cessation of the relationship. These invoices concerned services said to have been provided in assembling or moving furniture; attendance at, or making arrangements concerning, a community festival where the respondent had a stall or similar; and IT services said to have been provided to both the respondent and another entity - invoiced to the respondent in the amount of $64,000. The evidence and submissions also addressed items said, respectively by the applicant and Mr Pall, to have been respectively improperly retained following the cessation of the relationship. This is not a complete catalogue of matters. I do not propose to catalogue the irrelevancies in the decision including, for example, written submissions advanced by the applicant under the sub-heading “Playing the Violin in the Ears of the Commissioner by Dictator (Respondent’s Principal Mr Pall)” (bold in original).
[8] I will, however, address six matters.
[9] First, the evidence and submissions indicated that the applicant and respondent/Mr Pall have made complaints concerning each other to the Law Society and/or the Office of the Legal Services Commissioner. The applicant has referred certain matters to, variously: the Australian Taxation Office (“ATO”), the Migration Agents Registration Authority and the former Department of Immigration and Border Protection (which has now been subsumed into the Department of Home Affairs). The applicant foreshadowed that he would be commencing proceedings in the Federal Court. Separately, the applicant made submissions that he was an employee, within the meaning of certain factors identified by the ATO as to whether a worker is an employee or contractor for taxation and superannuation purposes. The matters involving the foregoing bodies have their own processes and will take their own course; none had reached conclusion around the time of the final day of hearing and none of the matters described in connection with referrals, complaints or applications to those bodies is relevant to the determination of this application for an unfair dismissal remedy.
[10] Second, the applicant invited the Commission to conduct its own inquiries with the Law Society; to conduct its own inquiries into other matters including, but not limited to, the business operations of the respondent and other businesses in which Mr Pall is, or has been, involved; and into arrangements between the respondent or Mr Pall and certain clients. The applicant also submitted that I could/should verify certain matters to which the applicant referred in his evidence by asking certain named individuals and companies about those matters. The applicant, in his closing written submissions, further submitted that, in relation to various matters, “the Commissioner must use her discretionary powers as per ss 589 and 590 of the Act to save the Commission’s integrity and ordered [sic] the Respondent to …”, for example, provide certain materials or names. I do not propose to conduct, or make, any such inquiries; or ask questions of any individuals or companies; or make any such orders.
[11] Third, the applicant made repeated submissions about sham contracting arrangements and the Terms, and alleged breaches of provisions of the Act. The applicant submitted that I should make certain specific findings, including the following specific finding (as written):
“120. THESE SHAM AGREEMENTS ALLOW THE MONKEY TRICKS OF THE PERPETRATORS LIKE RESPONDENT’S TO FOOL THE VICTIMS LIKE APPLICANT’S, THE AUSTRALIAN COMMUNITY AND THE AUSTRALIAN REGULATORY AUTHORITIES.”
(Bold and upper case in original)
[12] I have before me an application for an unfair dismissal remedy. I do not propose to make any findings about sham contracting arrangements (other to the extent that I have concluded, for example, that it was the applicant who had proposed the Gondwana Terms to Mr Pall – not vice versa).
[13] Fourth, in connection with the allegations of coercion, duress and conduct in the nature of exploitation, the applicant repeatedly described himself as a “young lawyer” (for example, in the Form F2 initiating process and, thereafter, in various oral and written submissions). It may be noted the applicant submitted as follows:
“210. The Law Council of Australia defines a young lawyer as “a person admitted to legal practice in Australia who has been in practice for a period of five years or less”
(https://www.lawcouncil.asn.au/docs/0ac99855-f583-e811-93fb-005056be13b5/AYLA%20Guidelines.pdf)
211. The Applicant submits that as per the definition provided by Law Council of Australia, the Applicant is a young lawyer; and (EMPHASIS ADDED)”.
(Bold, upper case and the words “(EMPHASIS ADDED)” in original)
[14] Based on the link referenced within paragraph 210 of the applicant’s closing written submissions, it appears the applicant has based the descriptor of himself as a young lawyer on an eligibility definition for nomination in the Australian Young Lawyer Awards. These awards, the link information advises, are conducted annually by the Law Council of Australia’s Young Lawyers Committee. In that regard, the Individual Young Lawyer Awards are described within the link as rewarding “… the excellence of young lawyers in recognition of an individual’s continuous and outstanding contribution to the profession and the community”. The eligibility definition, for the purposes of nomination for such awards, reads:
“Young Lawyer means:
a. a person admitted to legal practice in Australia who has been in practice for a period of five years or less; or
b. a person admitted to legal practice in Australia who is under 36 years of age.”
(Bold in original)
[15] The applicant’s repeated self-descriptor of being a young lawyer was inapt. In circumstances where the applicant is aged in his 40s, the applicant was not a young lawyer when he entered the Terms. Moreover, having considered the evidence of the applicant’s conduct on 26 August 2020 in refusing to leave the respondent’s premises and the contents of the correspondence he sent to Mr Pall, and having also observed him and his conduct over the course of the proceedings, the applicant assuredly is not a person who otherwise would be susceptible to conduct in the nature of coercion, duress or similar.
[16] Fifth, the applicant made various submissions concerning two representatives of the respondent (Sarah Christie and Troy Plummer of Employsure Law Pty Ltd). These submissions by the applicant included, but were not limited to, extravagantly worded allegations of “perjury” by them - on account of what was contained in documents they drafted on instructions or with their client’s approval, namely, the Form F3 - Employer response to unfair dismissal application and the written outlines of submissions. Apart from the self-evident lack of appreciation by the applicant of what constitutes perjury (for neither Ms Christie nor Mr Plummer gave evidence in the proceedings), I accept the submissions advanced in the respondent’s closing submissions, which highlighted various extracts of what the applicant wrote about the two representatives, that “the language used by the Applicant to describe the conduct of his learned colleagues is unbefitting of a qualified legal practitioner.” The applicant’s submissions indicated that, for his own part, he had put one of the representatives of the respondent on notice “for using the grouchy vocabulary against the Applicant to denigrate the Applicant’s character without providing any supporting evidence” (bold in original). The applicant’s submissions in such respects later continued that one of the respondent’s representatives “wrote the closing submissions in his whims and fancies and used his churlish vocabulary to denigrate the Applicant”.
[17] The respondent’s representatives did not misconduct themselves in any way over the course of the proceedings before the Commission. It was put in the respondent’s closing submissions that I should consider referring matters to the Law Society with respect to professional misconduct by the applicant, considering the nature of some of the matters addressed in the applicant’s closing written submissions. I do not propose to do so. If Ms Christie (who I gather is a paid agent, not a solicitor), Mr Plummer (who I gather is a solicitor) or Mr Pall (a solicitor) wish to pursue matters with the Law Society concerning the content of the applicant’s submissions in relation to them personally, that is a matter for them.
[18] Sixth, the respondent sought a confidentiality order concerning matters said to be confidential and/or privileged in nature. I do not propose to make the order in the terms proposed by the respondent or otherwise. Some of the materials – such as some of the text or WhatsApp messages - do not appear, on their face, to be essentially confidential in nature (albeit how the applicant came to have possession of some other materials for the purposes of filing or tender in these proceedings - in circumstances, for example, where they were not the applicant’s documents or the subject of orders for production - raises entirely different issues).
[19] As to other materials sought to be the subject of the respondent’s proposed confidentiality order, the applicant tendered an array of documents - his possession of which for tender and/or use during these proceedings cannot, in my view, reasonably be explained or excused by the applicant. I do not canvass these matters in the decision or at least not the detail of them. It suffices to say that some of the applicant’s documentary materials included private information and private details about persons who are not parties to these proceedings and who were not witnesses in the proceedings, and records of the respondent and other businesses with which Mr Pall has been associated. As the respondent’s closing submissions noted “… the Applicant is in possession of legally privileged and confidential materials because he reproduced those documents in the proceedings before the Commission.” Last, on this topic, at least some of the matters which were the subject of the respondent’s draft confidentiality order appear already to be the subject of respective complaints and/or cross-complaints elsewhere as between the parties - and so it would be a futility to now make an order of the Commission to belatedly place constraints.
[20] I will not catalogue in the decision the irrelevant matters raised in the applicant’s case or recount the raft of internally inconsistent matters addressed in his evidence, submissions and propositions. Moreover, I will not, in the decision, air the various allegations repeatedly canvassed by the applicant concerning all manner of things that were not relevant to the determination of this application.
[21] I will now turn in the decision to matters which are relevant to my findings in relation to the application.
The formation of the arrangements between the applicant and the respondent
[22] Given there was such sharp dispute about certain matters of fact, and such sharply differing characterisations of matters, it is necessary to make some foundational findings. To the extent the following findings involve, in some instances, an acceptance of, respectively, the evidence of the applicant or Mr Pall, I preferred or accepted the evidence of the respective witness in such respects and/or rejected the evidence (or the submissions as to certain matters, being submissions otherwise unsupported by any evidence) to the contrary.
[23] I find (in no particular order):
• The applicant made an unannounced approach to the respondent/Mr Pall, seeking to obtain supervised legal practice. The applicant and Mr Pall had no prior association; the applicant approached the respondent firm, without any appointment, as a “walk-in”, because, the applicant informed Mr Pall, he had googled Indian-based law firms.
• The respondent was not seeking to recruit either an employee or a contractor to work within the firm as a solicitor (or in any other capacity) at the time the applicant made his unannounced approach to the respondent/Mr Pall. The effect of the evidence of Mr Pall was that, based on his own personal experiences, he felt sympathetic towards the applicant.
• The applicant did not seek and Mr Pall did not offer employment within the firm; there was no offer and/or acceptance by either party in such respects. Mr Pall did not offer to the applicant employment on an employee remuneration package of around $60,000 per annum, plus superannuation and a “bonus” - or otherwise. As a corollary to this finding, I also find there was also no alleged reneging by Mr Pall on a purported agreement to engage the applicant as an employed solicitor within the firm on the basis of around $60,000 per annum, plus superannuation and a bonus, or any broadly similar terms of employment.
• It was the applicant who proposed to Mr Pall that the arrangements under which he would work with the respondent should be the same as, or akin to, the Gondwana Terms – albeit the respondent has, in years past, had arrangements similar to the Terms with an individual or individuals other than the applicant.
• Mr Pall agreed to the arrangements the applicant proposed to him concerning engagement under arrangements akin to those the applicant had with Gondwana Lawyers under the Gondwana Terms, save as to, I am satisfied, agreement reached between the applicant and Mr Pall principally and most relevantly concerning a different remuneration arrangement in the Terms. The agreed arrangement between the parties in such respects in the Terms was reflective of the discussion about the matters related to the respondent’s own business exigencies (as against what Mr Pall understood to be the operations or size/business turnover of Gondwana Lawyers). The applicant was registered for GST and was responsible for managing his own taxation affairs in relation to his subsequent invoicing, notwithstanding those parts of the applicant’s case which pointed to the fact that the Terms, on their face, did not specify that an Australian Business Number (“ABN”) was required to be identified.
• Mr Pall did not coerce the applicant to enter the arrangements or exercise any other form of (however described) duress upon the applicant to enter the Terms – for example, as some form of arrangement designed by Mr Pall to avoid an employment relationship within the firm. Rather, it was the applicant who had proposed the Gondwana Terms to Mr Pall, and it was the applicant who provided a copy of the Gondwana Terms to Mr Pall for his consideration. The final form of the agreement between the applicant and the respondent under the Terms, including its remuneration structure, was, I am satisfied, freely agreed between the applicant and Mr Pall. I find Mr Pall had explained his business rationale for the remuneration provisions he proposed under the Terms, which differed from those in the Gondwana Terms. That rationale described by Mr Pall was, in turn, accepted by the applicant as part of the discussion which resulted in the parties’ agreement to the Terms. If the applicant did not wish to have legal supervision under the arrangements in the Terms, he could, of course, have chosen not to sign.
• While the applicant emailed academic transcript-type details and a PDF copy of the Gondwana Terms to Mr Pall for his consideration, it was unclear who physically prepared/typed the final iteration of the Terms. It may be noted, in such respects, that the principal differences in the Terms, as against the earlier Gondwana Terms, were a different remuneration structure in clause 2(a) vii) and the insertion of an additional clause 2(a) ix) which addressed certain professional-type matters. There were some other miscellaneous differences, such as the insertion of words “(or any other time agreed between them)” in clause 2(a) i); the omission of the words “through its agent” in clause 2(a) ii); and the omission of the words “Similarly, Prateek does not owe any employee obligations to Gondwana Lawyers” in clause 2(a) vi). In any event, nothing turns on who physically prepared/typed the final version of the Terms that were co-signed by the applicant and, for the respondent, by Mr Pall, because I am satisfied the clauses within the Terms were genuinely reflective of the agreement reached between them.
• Had the applicant and Mr Pall, who are both solicitors and self-evidently capable of contracting on their own behalf, wished or intended to enter an employment relationship it would have been open to them to do so; they did not enter an employment relationship under the Terms and, moreover, they did not intend to do so. The applicant was an experienced businessman at the time he approached the respondent seeking legal supervision under a type of (broadly described) profit-share arrangement. I do not accept the applicant’s submission that he was “brainwashed” by Mr Pall into signing the Terms.
• Further on the topic of alleged duress by Mr Pall, the applicant contended as follows:
“148. The Applicant submits to the Commission that the Applicant is a victim and Respondent is the Perpetrator in the Agreement.
149. The Applicant signed the Sham Agreement under DURESS (EMPHASIS ADDED) because the Applicant had resigned from his previous job and supervised training and had no other choice.”
(Bold, upper case and words “(EMPHASIS ADDED)” in original)
As to the foregoing submission, it may be noted there was no evidence the applicant advised Mr Pall, or that Mr Pall otherwise was aware, the applicant had (however described) resigned from Gondwana Lawyers – albeit Mr Pall was aware from what the applicant informed him that some issue about payments or non-payment had arisen between the applicant and Gondwana Lawyers.
• About a year after signing the Terms, that is around April 2020, the applicant declined to accept an offer made to him by Mr Pall to become an employee of the respondent/an employed solicitor within the firm. While the circumstances surrounding the offer are strongly disputed, relevantly the applicant did not want to be, or become, an employee of the respondent firm; he determined instead to continue to work under the non-employee arrangements in the Terms.
• At all relevant times during the relationship between the parties, the applicant operated, in part or in whole on his own behalf, as a migration agent. The applicant’s evidence was that he had “a full migration licence”. The respondent did not provide supervision under the Terms in relation to the applicant’s essentially independent operations in such respects. (Apart from having been a migration agent over the course of the operation of the Terms, by around the time of the hearing the applicant had his own firm named Santosh Migration and Education Consultants – but it was unclear on the evidence when the applicant established this business.)
• At all relevant times (at least following advice, properly given, by Mr Pall that the applicant’s invoices should be properly-raised by him – as opposed to the informality of what the applicant initially submitted in connection with seeking payment under the Terms), the applicant invoiced the respondent approximately monthly for his percentage of the professional fees. The invoices identified the applicant’s ABN, being an ABN the applicant had obtained in May 2014, several years before the arrangements under the Terms commenced with the respondent. The amounts invoiced fluctuated, depending on the matters or work in which the applicant had been involved. The applicant was remunerated in accordance with the invoices he submitted to the respondent for payment, albeit it appears the respondent ultimately was responsible for the charges made to the clients of the firm for the services provided by the firm/the applicant. The invoicing arrangements, and payment pursuant to them, continued until disputation of some description about payments arose towards the latter part of the arrangements between them. (Post-termination, the applicant also invoiced the respondent for work undertaken by him which was not legal in character – and thereby, presumptively, not comprehended by the Terms or the de facto continuation of the Terms in the period April to August 2020.)
• During 2020, when the Australian Government’s JobKeeper arrangements were in place and during a time the applicant now contends he had been since April 2019, and continued to be until August 2020, a full-time employee of the respondent (working he said, an average of approximately 50-60 hours a week, with late hours, weekend work and sometimes seven days a week without a break) the applicant was in receipt of full JobKeeper payments arising from his directorship of, and/or employment with, a company of his own.
The circumstances surrounding the termination of the relationship
[24] In a period of about three months preceding the August 2020 termination of the relationship, Mr Pall began to develop concerns about the applicant as set out in Mr Pall’s evidence-in-chief, being evidence I accept as to the concerns he described (whereas Mr Pall had considered the applicant, in the earlier stages of the relationship to have been “polite”). I accept that Mr Pall broached some of the concerns with the applicant on a number of occasions prior to late-August 2020. Matters of concern about the applicant’s conduct, in connection particularly with a weekly review meeting held on 26 August 2020, were such that Mr Pall asked the applicant to attend the respondent’s premises later that same day for a discussion. The applicant had participated remotely in the meeting - in circumstances where the applicant had otherwise not been attending at the respondent’s premises, and working from home, arising from a potential COVID-19 exposure issue.
[25] The applicant’s case appeared to contend that the relationship was terminated by Mr Pall on account of a client-type issue that had arisen approximately nine days earlier than 26 August 2020, or because of payment-related issues, but the evidence does not lead me to that conclusion. Relevantly, the applicant appears to have been highly personally affronted by a comment or some jibes made by Mr Pall during the meeting on 26 August 2020. In the upshot, Mr Pall asked the applicant to come to the office for an in-person meeting later that same day. The ensuing meeting between the applicant and Mr Pall at the respondent’s premises did not go well. The content of the discussion was disputed – but I accept the applicant, among other matters, loudly raised his voice at Mr Pall – described by Mr Pall as the applicant “yelling” at him. Disturbed by what I accept was the applicant’s aggressive and hostile conduct, Mr Pall told the applicant to leave the premises, as was his plain entitlement as the owner/occupier – and regardless of whether the applicant was an employee or a contractor or, for example, a visitor. Mr Pall advised the applicant he would send the applicant an email. Mr Pall’s oral re-examination evidence was:
“Look, when he went back to his desk, it was pretty much clear to me that, you know, he’s trying to build up some kind of a drama here, so as much as I kept on telling him verbally that he should leave the office, and I also indicated to him that, look, if you’re not going to leave the office I’ll have to call the police. Any reasonable person, any reasonable practising lawyer, when hears this from the other lawyer, would understand what it means. So I would have expected him to leave there and then, but because the very fact he forcefully sat on office desk, you know, opened up the computer and said, look, you do whatever you want, it was very clear to me that he’s wanting confrontation. So I just stepped out inside the reception, and then, as I said, was forced to call the police. There were some other female staff as well, so you know, I had to balance things in the office, and when the female staff left I sat in the reception and waited for the police to come and escort him out. So obviously I was not aware what he’s doing at his desk. It’s only later during the following weeks I figured out, you know, what has happened and how much information has disappeared, and obviously all that event happened on that particular computer. …”.
[26] The applicant refused to leave the respondent’s premises. Even on his own account in his written evidence-in-chief was: “I replied that this office belongs to the Respondent [sic], and I am an employee of the Respondent, [sic] and I am not going anywhere.” Instead of leaving the premises, the applicant busied himself on his workplace computer, asserting he had to send some urgent emails. On the applicant’s account, the respondent was allegedly “violent” to him – but there is no basis whatsoever to conclude that Mr Pall was in any way physically violent to the applicant, including in what the applicant said he discussed with the police. I reject the applicant’s evidence that Mr Pall was violent to him on 26 August 2020; it is one of the many baseless allegations made by the applicant. As to the applicant’s time on the computer pending the arrival of the police, Mr Pall’s evidence (including aspects going as to belief he holds), was:
“64. I have since discovered (the investigations still ongoing) that whilst he was sitting in the office [the applicant] downloaded a program onto his work computer for the purpose of copying his Microsoft Outlook email data. This program is known as G Suite Sync from Microsoft Outlook (GSSMO). After copying the data to GSSMO he permanently deleted all of his emails from his work Microsoft email account. I believe that [the applicant] stored a copy of all the emails on an unsecured personal server before deleting them from Microsoft Outlook and GSSMO. [The applicant] has, without authorisation, initiated deleted [sic] of all emails from his Microsoft Outlook account and it is my understanding that he has stolen these emails and has a backup of over 5803 emails from the Company computer system.
65. Around 7.15pm two police officers from Parramatta Police Station arrived. After some discussion the officers escorted [the applicant] out of the office. I locked the office and left.”
[27] The following day, 27 August 2020, Mr Pall sent an email to the applicant which relevantly read:
“I would ask that you return the files mentioned in the email dated 17 August 2020 to the office immediately, and any other office asset you are in possession of with such keys, office access card.
The access of those files was given to you as you are currently in self isolation due to COVID, and requested to work from home in accordance with office COVID Policy.
Incident of 26 August at [address of respondent’s premises]
I note that the Police got involved to escort you from the office last evening. Your conduct and behavior is [sic] currently under investigation, and I am seeking feedback from all the staff who were present last evening. It has come to my attention that you have approached a few staff member’s [sic] individually and have shared information which is concerning and of serious nature.
In accordance with the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 I will be unable to supervise you based on your volatile conduct of last evening and, on a few previous occasions with office staff. I find it extremely difficult to provide instructions on case matters you currently have in the office. Your rude and crude behavior [sic] with fellow staff has been continuing in the office from some time now which is not acceptable as it has seriously impacted the work environment of the staff in general.
Your Engagement with the office
I am currently in discussion with the Legal Service Commissioner Board regarding your engagement in such circumstances. If you wish you can contact them also, as I am certain that the engagement can be ended in a much better way and by following a much more professional approach.
I ask that you refrain from contacting the clients and making any derogatory statements regarding your engagement with the office, or in general about the matter.
I will be contacting all the clients to advise that they have to contact me directly regarding their matters.
If you fail to return office case files by end of business today, I will be officially making a complaint to the Legal Service Commissioner Board and will be providing a copy of this email, along with the outcome of internal investigation in due course.”
(Bold in original)
[28] Thus, Mr Pall relevantly advised the applicant that he would be unable to supervise the applicant, based on his volatile behaviour the prior evening when the police had to be called to remove the applicant from the respondent’s premises. Reference was also made to other matters, but it is clear that the incident on 26 August 2020 was the defining matter of concern for Mr Pall. In a further development, the applicant then failed to return files despite the instruction from Mr Pall to do so.
[29] On 28 August 2020, the applicant emailed a letter (sent by the applicant on the respondent’s letterhead paper) to Mr Pall on 28 August 2020 with the subject-line: “Re: Exploitation of Young Lawyer Prateek Patial” (bold in original) setting out to Mr Pall matters concerning the applicant’s account of various matters surrounding the events on 26 August 2020, and other matters.
[30] The termination of the relationship was advised on 28 August 2020 by Mr Pall, with immediate effect on 28 August 2020, in an email which relevantly read:
“I refer to my email of 27 August 2020 and note that you have failed to return office assets, case files held in your possession, and have intended unauthorised access of company letterhead and emails.
Your professional conduct and engagement with the firm has been now officially reported to the Office of the Legal Services Commissioner.
You are not authorised to use Office letterhead, email account or represent clients.
Your engagement is terminated with immediate effect.
You are to immediately return all firm related data on your home computer on a disc, and provide an undertaking that such data has been destroyed permanently from your home computer and will not be used for any personal or unauthorized activities.
You have to stop any further use of Office letterhead, representation on behalf of the firm, office email access, contact with clients, or any other party (such as an individual, a company or any other entity) who has dealings with the firm with immediate effect.
Any calls received on your mobile regarding work related issues have to be directed to [telephone number].
We will be providing a copy of this email to the Office of the Legal Services Commissioner.”
[31] In response to the advice concerning the termination, the applicant sent an email to Mr Pall on 31 August 2020, attaching documents including a letter setting out various demands, and various invoices and claims for reimbursements calculated by the applicant in the total amount of $93,736.58. The applicant advised in the letter that when Mr Pall had attended to the demands he had set out and made the payment “only then” would he “handover the office items to you, such as case files, keys, access card.”
The Terms
[32] In the Terms, a document which was titled (like the earlier Gondwana Terms) “AGREEMENT FOR GENERAL USE”, matters including the following were addressed:
“RECITALS
A. The purpose of this agreement is to note the obligations of each party as agreed so that no confusion arises in the future.
B. [Respondent details]
C. Prateek has finished his legal training and post admission presently gaining supervised experience at Kailash.
…
2. Operative provisions
It is expressly understood and agreed between Prateek and Kailash that:
i) Prateek is going to undertake his supervised legal training with Kailash for 12 months (or any other time agreed between the parties) of the date of this agreement.
ii) Kailash has agreed to provide the supervised training in the legal areas the practice undertakes legal work;
iii) Kailash shall provide with [sic] essential infrastructure considered necessary at its discretion for this purpose;
iv) Prateek shall undertake all work diligently, keeping utmost confidentiality of the clients and the work being undertaken;
v) Prateek shall work on the client files to gain diverse experiences;
vi) It is expressly understood and stated that the parties do not form an employer-employee relationship. Kailash do not owe any employer obligations towards Prateek including but not limited to remuneration, salary, superannuation etc. The pure and simple objective of this agreement for the parties is conduct and receive supervised training [sic] with certain benefits to both the parties arising out of this relationship.
vii) To provide training, infrastructure and related resources, Kailash shall charge 60% of the gross professional fee (excluding disbursements) generated by Prateek up to the total income of $100,000 per annum. Should the fee grow above $10,000 per annum in the increments of $10,000, the Kailash percentage shall decrease to 50% of the gross professional fee (excluding disbursements) on anything above $100,000, in increments of $10,000;
viii) The term of this agreement is for one year from the date of this agreement. To provide certainty to the agreement, this is an essential term;
ix) Prateek will conducts itself [sic] in a proper, prudent, and professional manner that is required form [sic] a duly registered practitioner to operate in the circumstances. He will ensure that he fulfils the licencing [sic] and qualification requirements to perform his duties, including registration with law society [sic], undertaking CPD points and strictly adhere to Solicitors [sic] Conduct Rules and code of ethics.
x) Both parties shall use their best endeavours to promote the business of the law practice; and
xi) Kailash reserves its right at its sole discretion and assessment of the factual circumstances to offer partnership in the legal practice on the terms decided at the end of the term.”
[33] It is unclear why the working arrangements continued beyond the anniversary of the signing of the Terms, given it was said to be an essential term that the agreement had a life of one year. In any event, the applicant and the respondent operated under the arrangements specified in the Terms, to the time of the termination of the relationship – presumptively pursuant to clause 2 (a) i) whereby the applicant was going to undertake his supervised legal training with the respondent for 12 months of the date of the Terms “or any other time agreed between the parties”.
[34] I find the applicant and the respondent, through Mr Pall, entered arrangements squarely not intended by either of them to involve an employment relationship. Both the applicant and Mr Pall are solicitors. Even accepting the applicant was admitted as a solicitor only comparatively recently around the time the Terms were signed, I simply do not accept the applicant somehow naively or unwittingly was coerced into non-employment relationship arrangements under the Terms that he, I reiterate, unilaterally and personally had presented to Mr Pall. As noted earlier, the applicant also declined the offer of employment that was made to him in 2020. For his own reasons, the applicant rejected that offer, preferring instead to continue to work under the Terms and to invoice the respondent under the Terms (and, for a period of time, separately also to receive JobKeeper payments with respect to eligibility concerning (presumptively) employment by his own company, namely SMPB Group Pty Ltd (“SMPB”)).
The labels vs the substance
[35] The relationship between parties may be found to have constituted an employment relationship regardless of the labels attached by the parties to that relationship and/or regardless even of their intentions in such respects. Here, by the co-signed Terms, the parties expressly disavowed an employment relationship. That is, the Terms included text which read that it “is expressly understood and stated that the parties do not form an employer-employee relationship” and that “the pure and simple objective” of the agreement involved the applicant receiving supervised training “with certain benefits to both the parties arising out of this relationship”.
[36] The applicant contended that he was, throughout the period of the relationship, an employee; and who was, in the end, unfairly dismissed by the respondent. The respondent, on the other hand, contended the applicant was, throughout the period of the relationship, an independent contractor. Specifically, the respondent submitted: “The Respondent submits that the intention of the parties was not to create an employee-employer relationship. The Respondent submits that the intention of the parties was to create an independent contracting relationship in accordance with the contract for services.”
[37] It seems to me the relationship may have been neither a true employee/employer relationship nor a true relationship of principal/independent contractor (at least as commonly distinguished in the cases where there is a contest as the proper characterisation in unfair dismissal applications). It may well be that the defining purpose of the relationship was as described in the Terms – and, therefore, is not a relationship which falls neatly within the indica by which the two discrete types of relationship are typically considered and determined. That is, the relationship appears to have been formed for the principal purpose of the applicant obtaining a period of legal supervision for professional requirements, albeit with remunerative arrangements of a commercial-type nature also forming part of the Terms. In any event, the cases advanced by the parties were advanced, in part, on the bases of the usual indicia.
The usual indicia
[38] The matters that typically arise for consideration were distilled in Jiang Shen Cai trading as French Accent v Do Rozario 1 (“French Accent”); and the principles in that case were affirmed in Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/as Uber Eats2 (albeit in a case concerning work in the gig economy). I will first approach matters according to the indicia distilled in French Accent.
Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place [of] work, hours of work and the like
[39] Given the nature of the Terms and the principal purpose of providing supervised legal practice, it may be accepted the respondent either exercised, or had the right to exercise, control over the manner in which legal work was performed by the applicant; this would seem inherent in relation to notions of reasonable supervision concerning a restricted practitioner and inherent, in this case, given that Mr Pall was the director and principal of the respondent firm and ultimately having his own obligations in relation to various matters. This is so, notwithstanding the respondent’s submission that “… beyond the required level of supervision required by the Law Society of NSW (being supervision of the Applicant’s legal matters), it did not supervise the Applicant with respect to his migration matters, continuing professional development or general duties. The absence of any significant or ongoing direction concerning the manner in which the Applicant’s migration matters, profession development or general duties were conducted in consistent with a contractor relationship.”
[40] The respondent did not control the place of work, but the applicant, due to the necessities of legal supervision, obviously had to attend the respondent’s premises and/or be on-call for court attendances concerning clients of the respondent.
[41] While it may be accepted there was some expectation of regularity, given the exigencies of proper legal supervision, as to days and hours of work, the applicant flexibly came and went to the respondent’s premises as he chose, as indicated by the evidence concerning his patterns of attendance at the respondent’s premises – which was one of the reasons Mr Pall facilitated access through the provision of an access card to the premises. Mr Pall also understood that, while the applicant was working in the firm’s premises, he was also undertaking some further studies in law and accreditation as a mediator the applicant’s evidence indicated he was, around the time of the hearing a “National Accredited Mediator”. I do not accept what appeared to be a proposition in the applicant’s case that he was required to work a minimum of 41 hours and 45 minutes a week; Mr Pall’s evidence indicated this was not the case, and I accept that evidence – and this is so regardless of any documentation otherwise generally disseminated by the respondent. The respondent did not control the applicant’s hours of work and the applicant did not work what might be described as prescribed hours, albeit the applicant recorded his attendances and departures in systems named “Wageloch” and he was expected to advise Mr Pall if he was not attending due to personal illness or for carer’s purposes. From late-March 2020, specific arrangements were also put in place concerning working from home – albeit that timing appears to have coincided with the commencement of the COVID-19 lockdown arrangements.
[42] The nature of the remuneration arrangements in the Terms did not involve payment for hours worked or attendance-based payments; rather, the remuneration arrangements were as specified in clause 2 (a) vii) the Terms.
Whether the worker performs work for others (or has a genuine and practical entitlement to do so)
[43] The applicant performed work for other than the respondent. The applicant was an “investor and director” of his own investment company, SMPB, at a time which overlapped with the relationship between the applicant and the respondent under the Terms. The applicant indicated he had been a director of SMPB since 2014. As to this, the applicant’s evidence was that he had two businesses and, by the time of the hearing, had “multiple businesses”. The SMPB business was different from the ABN-identified entity in the invoices the applicant submitted to the respondent. The applicant also indicated that through SMPB he became JobKeeper-eligible for Commonwealth Government payments, because his company was in loss at the time and the ATO assessed his application and they found him to be eligible. The applicant’s evidence in such respects was that the ATO had assessed his JobKeeper application and said the applicant was eligible because “… I am working as a full-time director of SMPB Group Pty Ltd since 2014”.
[44] The applicant performed work other than for the respondent, in the sense that he was, on his own behalf and of his own accord, working as a registered migration agent who was servicing his own clients and/or servicing clients he brought into the respondent’s business; and he was not under the supervision of Mr Pall in respect of his own migration agent work pursuant to the Terms or otherwise. In this capacity as a registered migration agent, the applicant serviced his own clients and, it appears, clients he brought into the respondent’s business while, it appears, at the premises of the respondent and/or while accessing use of the respondent’s resources. The applicant also had what was described as his own ImmiAccount (administered by the Department of Home Affairs). The evidence of Mr Pall in such respects was:
“Yes, he brought a lot of migration clients and based on our general services agreement, he was paid accordingly. He represented himself on the 956 [form] as the agent. He provided advice and he conducted himself in those regards.”
[45] The applicant was responsible for managing his own clients’ migration files in his capacity as a registered migration agent. Moreover, following the termination of the relationship between the applicant and the respondent, certain files were transferred to the applicant/his new business.
[46] Having regard to the foregoing, I accept in general terms that part of the respondent’s submissions which read:
“The Applicant’s evidence of his directorship of SMPB Group Pty Ltd and his receipt of JobKeeper payments in 2020 is evidence of his capacity to perform multiple commercial roles simultaneously and to undertake other commercial ventures alongside performance of the Agreement. The Applicant is not only a solicitor, he is a businessman and a migration agent. The Applicant was not constrained by the Agreement and did pursue separate business ventures in addition to his work with the Respondent. This evidence demonstrates that the Applicant was not reliant solely on the Respondent for his financial means and was free to pursue additional commercial ventures as he saw fit.”
Whether the worker has a separate place of work and/or advertises his or her services to the world at large
[47] There was no evidence the applicant had a place of work separate from that of the respondent’s premises, except to the extent that he did some work from home.
[48] There was no evidence the applicant (personally or independently) advertised his services to the world at large during the relationship.
Whether the worker provides and maintains significant tools or equipment
[49] The applicant identified the following matters in his evidence (as well as the matter that the respondent purchased for the applicant a computer, desk and chair):
“117. The Respondent is responsible for maintaining the EFTPOS terminals, Office bank account, and Controlled monies account for all the clients.
118. The Respondent is responsible for maintaining the subscriptions of the required legal software for the firm.
119. The Respondent has provided the Applicant with the following:
a. Shared access to use the Respondent’s Commonwealth courts portal username – [name]
b. Shared access to use the Respondent’s Principal username – [name] for the Leap legal software;
c. Shared access to use the Respondent’s username – [name] for the Family Law eBook;
d. Access to use the LEGEND subscription username – [name] for the Migration Visas.
e. For the use of migration-software migration manager username - [name];
f. For the use of online conveyancing platform PEXA username – [name];
g. Work station;
h. Work Printer;
i. Work Telephone Number – [number];
j. Work Fax Number – [number];
k. Work email-id – [ID];
l. Work website – [website address];
m. Work address – [address];
n. Work Postal Mailing Address – [PO box address];
o. Business Cards;
p. Access to WhatsApp group Kailash Office.
q. Access to WhatsApp group Kailash Group Family.
r. Office Key;
s. Building Access card for after/before office hours; and
t. To use the kitchenette that includes Fridge, microwave, tea bags, sugar sachets and hot water kettle.”
(Bold in original)
[50] The applicant did not provide or maintain significant tools or equipment of his own in work conducted under the Terms, but that is to be expected given the purpose of the Terms and the nature of legal work. The applicant solely or principally used his own mobile telephone for outgoing communications, rather than a respondent-provided telephone or an office telephone.
[51] The Terms provided that the respondent agreed to provide to the applicant supervised training in the legal areas the practice undertakes legal work. To that end, the Terms specified that the respondent would provide the “essential infrastructure” considered necessary, at its discretion, for this purpose. Thus, the applicant used the respondent’s in-house infrastructure, such as subscription services and the other things outlined in the applicant’s evidence. Further, the Terms themselves addressed the financial arrangements as including the provision of matters described as “infrastructure and related resources”.
Whether the work can be delegated or subcontracted
[52] The was no evidence that there could be any sub-contracting of work contemplated within the Terms by the applicant to anyone else, or any other entity; and, it may be added, the capacity to sub-contract would appear to be antithetical to arrangements under the Terms which had as their principal purpose the provision of supervised legal training. Some of the work of the applicant was effectively delegated by him, but relevantly and unremarkably only to employees within the firm, such as paralegals.
Whether the putative employer has the right to suspend or dismiss the person engaged
[53] The Terms did not bestow on the respondent any right to suspend or dismiss the applicant. To the extent that notions of suspension and dismissal otherwise connote an employment relationship, the Terms stipulated that: “It is expressly understood and stated that the parties do not form an employer-employee relationship.”
Whether the putative employer presents the worker to the world at large as an emanation of the business
[54] To the extent that matters were conveyed to the world at large, the applicant was presented as being an emanation of the respondent’s law practice, part of the respondent’s team and/or its employee. The applicant presented himself to the Law Society as having been an employee of the respondent (and, earlier, an employee of Gondwana Lawyers) - notwithstanding the terms of the non-employee arrangements he successively entered with each of those two firms. That is, on 18 April 2019, the applicant sent emailed correspondence (from a private email address) to the Law Society’s registry which read:
“Dear Sir/Madam
I have joined the new employer from 17th April 2019. Please update my new employer details:
[respondent details]
Thanks & Regards
Prateek Patial
Law Id: [number]”
[55] That same day, 18 April 2019, the Law Society’s registry responded to the applicant:
“Dear Prateek,
Thank you for your email.
Please confirm the date that you ceased with Gondwana Lawyers and the date you commence with Kailash Lawyers.
Kind Regards,
[Law Society’s writer details]”.
[56] On 23 April 2019, at 11.27am, the applicant sent an email to the Law Society’s registry (from a private email address, but which included Gondwana Lawyers’ signature block-type contact details). The email admitted in evidence as an annexure to the applicant’s evidence-in-chief read:
“Dear [name of Law Society employee]
Cease of employment with Gondwana Lawyers: 16th April 2019;
Commence of employment with Kailash Lawyers & Consultants: 17th April 2019.
Thanks
Regards
Prateek Patial
Law Id: [number]
[Quoted text hidden]
--
Kind regards
Gondwana Lawyers Pty Ltd
ABN: [Gondwana Lawyers’ ABN]
Prateek Patial
Solicitor
[Gondwana Lawyers’ street address]
Phone: [Gondwana Lawyers’ telephone number]
Fax: [Gondwana Lawyers’ fax number].
(Bold, underline and words “[Quoted text hidden]” in original)
[57] On 22 April 2020 (time-coded as having been submitted at “13:43:38”), the applicant made an online “2020/21 APPLICATION FOR RENEWAL OF AN AUSTRALIAN PRACTISING CERTIFICATE AS A SOLICITOR AND MEMBER OF THE LAW SOCIETY OF NSW” (upper case in original). That application identified the applicant’s “Current Certificate Type” as being “Employee of a law practice (Supervised)” together with specified practising certificate conditions. The application further identified in relation to “Employment Status” the applicant was an “Employee of a law practice”, namely the respondent firm. The applicant completed certain declarations in the form, including that the contents of the application were “true and correct”.
[58] The Terms bears a date of signing of 17 April 2019 – and that was the date the applicant identified to the Law Society. One way or the other, as of 23 April 2019 when the applicant sent the preceding email to the Law Society, the applicant was self-evidently cognisant of the Terms and the express disavowal of an employment relationship. Moreover, on 22 April 2020, the applicant personally submitted the on-line application declaring he was an employee of the respondent. On 23 April 2019, the applicant also earlier emailed the Law Society with advice that he had commenced “employment” with the respondent on 17 April 2019. Peculiarly, the applicant sent his email from a personal email address – but an email in which he included Gondwana Lawyers’ contact block-type details in advising the Law Society on 23 April 2019 he had ceased “employment” with that firm on the earlier date of 16 April 2019.
[59] In the applicant’s Registered Migration Details for the purposes of the Office of the Migration Agents Registration Authority, the applicant self-identified his relationship to the respondent’s business as “Employee”.
[60] For his own part, Mr Pall also completed documentation which was submitted to bodies including the Law Society, Legal Aid NSW and the respondent’s professional indemnity insurer indicating and/or declaring that the applicant was an employee of the respondent. Again, this was notwithstanding the fact of what was expressly set out in the co-signed Terms.
[61] Both the applicant and Mr Pall are, I reiterate, solicitors. It hardly needs to be said that, as solicitors, they should have been expected to pay attention, or more particular attention, to what was represented by either or both of them to third parties in emailed correspondence or in the completion/signing of template documents – considering what they had specifically agreed between themselves in the Terms as to a non-employment relationship. The fact of representations made to third parties as to an employee/employer relationship constituted, I find, erroneous labelling by both the applicant and Mr Pall.
[62] There were other matters, such as the provision of business cards to the applicant – but I note it is not uncommon for persons working within, or for, an organisation to have business cards with the name of the principal, the host employer or similar, even if the person/consultant/contractor is not a direct employee of the entity identified on the business card.
Whether income tax is deducted from remuneration paid to the worker
[63] Income tax was not deducted from amounts paid to the applicant. The remuneration arrangements were as specified in clause 2 (a) vii) of the Terms. The evidence of Mr Pall, which I accept, was that the applicant never provided a tax file number to the respondent. The applicant was later to submit in his closing submissions he had provided those details, together with superannuation details, although he did not otherwise give evidence to that effect and such details were not personally entered by him in the respondent’s “Employment Hero” software systems.
[64] To similar effect, Mr Pall’s evidence was that the applicant never provided any bank/financial institution details. In that regard, it may be relevant that the applicant sought payment in correspondence dated 31 August 2020 by bank cheque, rather than by electronic funds transfer.
[65] It is unclear what taxation arrangements applied concerning the amounts paid to the applicant under the Terms other than to say the applicant’s invoices do not indicate a component for GST (albeit the applicant had been registered for GST since 2014). As the respondent submitted, there was “no evidence of the Applicant’s taxation affairs before the Commission.”.
Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks
[66] The applicant was not remunerated by a periodic wage or salary and nor was he remunerated by reference to the completion of tasks. Rather, the remuneration arrangements were as specified in the Terms and were, apparently, the subject of monthly invoicing by the applicant.
[67] It may be noted the applicant also submitted invoices around the time of the termination of the arrangements not only in relation to remuneration contemplated by the Terms but also in respect of other matters such as undertaking furniture assembly, furniture removals and IT services concerning the respondent and another company.
Whether the worker is provided with paid holidays or sick leave
[68] The applicant was not provided with paid holidays or sick leave, and nor did he make any application for any form of paid leave entitlements. However, within this application for an unfair dismissal remedy, the applicant claimed he was an employee with employee-related entitlements to paid leave such as accrued but untaken annual leave. The applicant’s details were entered into the respondent’s Employment Hero software systems, but nothing turns on that; it was an administrative leave device and no application for leave was ever made by the applicant for any form of leave. As noted earlier, the applicant effectively self-determined his attendance at the respondent’s premises.
Whether the work involves a profession, trade or distinct calling on the part of the person engaged
[69] As to the indicum of whether the work involved a profession, trade or distinct calling on the part of the person engaged, the Terms provided for supervised legal practice of the applicant as a solicitor.
Whether the worker creates goodwill or saleable assets in the course of his or her work
[70] There was no evidence as to whether the applicant created goodwill or saleable assets in the course of his supervised legal practice with the respondent, either for his own part or on the part of the respondent. That said, there was evidence the applicant requested that certain client files be transferred from the respondent firm to him/his business, thereby suggesting the generation by the applicant of business for himself or quasi-goodwill for himself arising from the period of time under the Terms.
Whether the worker spends a significant portion of his remuneration on business expenses
[71] There was no evidence as to what, if any, portion of the applicant’s remuneration that he spent on business expenses in relation to work performed under the Terms (albeit there was evidence in the applicant’s case, of no jurisdictional consequence, of the claims of otherwise fully reimbursed purchases of food items and the like). If the payment can be so characterised, the respondent paid, in the exercise of discretion, for the “business expense” of the applicant’s practising certificate fees/Fidelity Fund fees/solicitor member fee in the amount of about $501 (and, it also appears, some or all the applicant’s costs of continuing professional development). The applicant contended he had otherwise incurred expenses which were not properly reimbursed to him by the respondent and/or he was not properly remunerated for work he undertook (not just under the Terms, but also in relation to, for example, other businesses with which Mr Pall was associated).
[72] I note also there was also disputation between the parties about the ownership of certain resource-type materials located at the respondent’s premises following the cessation of the arrangements between them, the initial cost of which would, presumptively, have been a business expense for (depending on who paid for such resources) either the applicant or the respondent. The ownership of these things was unresolvable on the evidence.
Consideration of the indicia
[73] In French Accent, the Full Bench said, in part (references not reproduced):
“(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other.”
[74] Here, a consideration of the indicia in the context of the nature of the work performed and the terms of the contract does not point one way, or overwhelmingly one way, to yield a clear result. True it is that the applicant was not strictly conducting a business on his own behalf in the sense typically described or understood. Nonetheless, again borrowing from French Accent, and painting a picture of the relationship between the applicant and the respondent from the accumulation of detail, the overall effect, appreciated by standing back and making a qualitative appreciation of the whole, the relationship between the applicant and the respondent was not one of employee and employer – and this is so notwithstanding labelling representations made by each of them to third parties such as the Law Society.
[75] Even allowing for some remaining ambiguity in the relationship, the parties themselves removed that ambiguity in the Terms, by declaring the relationship not to have the characteristic of employment. That is, the Terms provided: “It is expressly understood and stated that the parties do not form an employer-employee relationship.” I have already found that the applicant proposed the Terms (albeit the remuneration provisions were amended, by agreement, I have also found). No amount of revisionism as advanced now in the applicant’s evidence and his submissions can alter the fact that the applicant proposed the Gondwana Terms to Mr Pall (rather than an employment contract), not vice versa. The applicant and the respondent were freely-contracting parties, and the Terms were amended by consent and co-executed; the applicant was not, on any description of it, coerced by the respondent/Mr Pall into the Terms.
Other matters
[76] The applicant contended that he was at all relevant times an employee of the respondent - and that, by operation of the Legal Profession Uniform Law (NSW), which is applied as a law of NSW by the Legal Profession Uniform Law Application Act 2014 (NSW) - it could not be otherwise while he was obtaining legal supervision. Further, in his submissions, the applicant wrote:
“57. 20 May 2021, at PN1374 Mr Pall: ‘As I have previously said, the legal profession uniform general rule clearly specifies that the engagement can be employment or otherwise’.
The Applicant submits that the Respondent had provided a grossly misleading statement to the Commission in his oral testimony without any evidence.
58. In the light of the above reasons, the Applicant submits that if there is no evidence, the Respondent tends to provide the delusory statements to the Commission.
59. The Respondent had done the Perjury at the Commission; and
60. The Applicant submits that to maintain the Commission’s integrity; the Commissioner must use her discretionary powers and refer the Perjury by the Respondent to appropriate forums.”
[77] The applicant further submitted:
“86. In response to Paragraphs 115, 115.1 and 115.2 of the Respondent’s closing submissions, the Respondent submits that for the purposes of the Uniform Law, the Applicant was an ‘other person’ working under supervision, in a law practice.
87. The Respondent intentionally misleads the Commission because the Commission has no definition of other persons, and [one of the respondent’s two representatives] purposefully did not define other persons as per Profession Law; and
i. To assist the Commissioner for better understanding, the other person is defined in Section 12 of the Profession Law
ii. Section 12 Entitlement of certain persons to use certain titles, and presumptions with respect to other persons
(1) Titles This section applies to the following titles—
(a) lawyer, legal practitioner, barrister, solicitor, attorney, counsel or proctor;
(b) Senior Counsel, Queen’s Counsel, King’s Counsel, Her Majesty’s Counsel or His Majesty’s Counsel;
(c) any other title specified in the Uniform Rules for the purposes of this section.
iii. The Applicant submits that the Applicant uses the title – lawyer; and
iv. The Respondent has not provided any definition or evidence in relation to the other person to the Commission.
v. The Applicant submits that the Respondent and the Respondent’s solicitor is misleading the Commission by not disclosing the true facts and the legislation. (Emphasis added)”
(Italics, bold and words “(Emphasis added)” in original)
[78] The respondent drew attention to the wording of the relevant section Legal Profession Uniform Law (rather than the selective quoting of the section in the applicant’s submissions). Section 6 (Definitions) of the Legal Profession Uniform Law does not presuppose that supervised legal practice can be obtained only within an employee/employer relationship; and the applicant’s submissions are otherwise incoherent in suggesting some relevant interaction with s.12 of the Legal Profession Uniform Law as to the meaning of “other person” within the meaning of s.6. I take notice of the fact that supervision can be undertaken with a solicitor working under legal supervision in a (non-employee) volunteer or secondee capacity – and, in some circumstances, somewhat controversially, under intern arrangements, such that the volunteer, secondee or intern may obtain requisite supervision. Section 6 of the Legal Profession Uniform Law relevantly reads:
“supervised legal practice means legal practice by a person who is an Australian legal practitioner—
(a) as an employee of, or other person working under supervision in, a law practice, where—
(i) at least one legal practitioner associate of the law practice is an authorised principal; and
(ii) the person engages in legal practice under the supervision of an authorised principal referred to in subparagraph (i); or
(b) as a principal of a law practice (other than a community legal service), where the person engages in legal practice under the supervision of an authorised principal of the law practice; or
(c) as a corporate legal practitioner or government legal practitioner, where the person engages in legal practice under the supervision of a person who holds, or is eligible to hold but is exempted from holding, an Australian practising certificate authorising the holder to supervise legal practice by others; or
(d) in a capacity or in circumstances specified in the Uniform Rules for the purposes of this definition;”
[79] The applicant also contended that not only was he an employee of the respondent, but that he was an employee whose employment was covered by the Legal Services Award as a Level 6 Law Clerk. The applicant’s submissions in such respects were:
“9. As per cl 4.7 of the Award, the Applicant is performing the duties of the Law Clerk.
10. Law Clerk is defined in cls 2, A.7 of the Award.
11. The Applicant was performing the work of a Law Clerk for the Respondent as per cls 2, A.7 of the Award.
12. The Applicant is covered under the Award.”
(Italics and bold in original)
[80] The applicant’s submissions in such respects were misconceived, because the Legal Services Award does not cover or apply to persons who are employed as solicitors admitted to practice. In any event, it is unclear why these submissions were advanced about award coverage, because the remuneration received by the applicant would not raise any high income threshold issues.
[81] An applicant who has been dismissed may apply to the Commission for an unfair dismissal remedy pursuant to s.394 of the Act. It is, however, a condition-precedent to jurisdiction that the applicant was an employee of the respondent to the application. Considering the matters outlined above, I have concluded the applicant was not an employee of the respondent. I would dismiss the applicant’s application for an unfair dismissal remedy based on my acceptance of the respondent’s jurisdictional objection that the applicant was not an employee.
Small Business Fair Dismissal Code
[82] If I am wrong in my conclusion that the applicant was not an employee of the respondent, I would, in the alternative, dismiss the applicant’s application for an unfair dismissal remedy having regard to the provisions of the Code. In the consideration that follows, I proceed on the basis that the applicant was an employee of the respondent – albeit contrary to my finding the applicant was not an employee. I also proceed on the basis that the termination of the relationship constituted a dismissal from employment – again contrary to my finding the applicant was not an employee and, thereby, dismissal from employment did not arise in the circumstances of this case.
[83] The applicant remonstrated about the respondent’s Code-related objection to his application, on grounds including that a Code-related objection was not identified in the respondent’s initial Form F3 – Employer response to unfair dismissal application (rather, it may be noted, the respondent’s objection to the application in its Form F3 focussed on its non-employee jurisdictional objection). The applicant’s objections to reliance on the Code in such respects are rejected. By s.396 of the Act, the Commission must decide certain matters relating to an application for an unfair dismissal remedy before considering the merits of the application – and this is so regardless, for example, of whether a Code-related objection is identified in a respondent’s Form F3. That is, in mandatory language, s.396 of the Act reads:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[84] If the termination of the relationship between the applicant and the respondent amounted to dismissal from employment, that termination was effected on the initiative of Mr Pall, without a period of notice or a payment in lieu of notice. Hence, the summary dismissal provisions of the Code arise for consideration given the firm was a small business when the relationship terminated. The Code provides as follows, as to summary dismissal:
“Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report. …”.
[85] The applicant initially contended he was dismissed on 28 August 2020. In closing submissions, the applicant submitted, for the first time, that he was dismissed from employment with the respondent “three times” two days earlier, namely on 26 August 2020. The applicant identified matters in the following way in his submissions:
“The Applicant submits, on 26 August 2020, the Respondent [sic; Mr Pall] verbally dismissed the Applicant on three occasions,
a. about 3:35 pm (telephone call – The Applicant was working from Home);
b. At or about 5:00 pm (meeting at office suite [address]); and
c. At or about 5:20 pm (at the main entrance/exit of the office [address]).
On all the above three occasions, the Respondent did not provide any reasons, written warnings, support person, and termination letter to the Applicant for the dismissal.”
(Bold in original)
[86] Here, proceeding on the basis there was a dismissal from employment, any dismissal cannot have occurred on three occasions. That is, a contract of employment cannot be terminated twice: Melbourne Stadiums Ltd v Sautner 3 (let alone, as the applicant contended, on three discrete occasions on the same day). The applicant’s proposition that he was dismissed by the respondent three times on 26 August 2020 is rejected.
[87] On 27 August 2020, Mr Pall sent an email to the applicant seeking the immediate return of certain files in possession of the applicant given he had been working from home, and the keys and office access card for the respondent’s premises. Mr Pall also advised the applicant’s conduct was under investigation, that he was “unable to supervise” the applicant based on his volatile conduct, and unable to provide instructions to the applicant on case matters. Reference was made to other matters, including advice from Mr Pall that he was currently in discussion with the Office of the Legal Services Commissioner regarding the applicant’s engagement. In such respects, Mr Pall wrote “If you wish you can contact them also, as I am certain that the engagement can be ended in a much better way and by following a much more professional approach.” Mr Pall also cautioned the applicant if he failed to return office case files by the close of business on 27 August 2020, he would be making a complaint about the applicant to the Office of the Legal Services Commissioner.
[88] Contrary to the applicant’s submissions that he had been dismissed three times on 26 August 2020, the applicant wrote to Mr Pall (using the respondent’s own letterhead) on 28 August 2020, being correspondence to which I have referred earlier with the subject line “Re: Exploitation of Young Lawyer Prateek Patial”, in terms presupposing that, as of 28 August 2020, the relationship had not (yet) been terminated by Mr Pall (albeit making mixed assertions about being “a current employee” and, on the other hand, referring to payment of invoices under an “engagement contract”):
• “1. … I am a current employee of Kailash Lawyers and Consultants … and working as a lawyer in the firm.”
• “61. … I request you Amit [Pall] to reinstate my access details or share the passwords for the Leap Login and Commonwealth Courts Portal unless you terminate my engagement contract.”
• “63. I request you to clear my outstanding invoices and overdue payments before terminating my engagement contract.”
[89] The circumstances immediately preceding the termination of the relationship between the applicant and the respondent have been dealt with earlier in the decision. The applicant conducted himself in, I find, an egregiously unacceptable manner in refusing to leave the respondent’s premises on 26 August 2020 notwithstanding repeated advice or instruction from Mr Pall that he should leave. The police had to become involved in escorting the applicant from the respondent’s premises approximately two hours later, around 7.30pm. I do not accept the applicant’s contention that he had remained on the premises effectively to provide his own account to the police. Had the applicant left the respondent’s premises when he was asked, told or instructed by Mr Pall to do so, there would have been no cause for Mr Pall to contact the police in the first place. As noted earlier, the applicant chose instead to busy himself on a computer until the police arrived.
[90] I think it may be accepted that the relationship was irreparably damaged in connection with the police involvement on the night of 26 August 2020. Regardless, the relationship seemingly continued without formal termination for a short period of time - at least as indicated in the correspondence that was exchanged between the parties over about the next day-and-a-half. Following upon the applicant’s outright refusal to leave the respondent’s premises on 26 August 2020 when instructed to do so by Mr Pall, the applicant was next instructed by Mr Pall to return to the office items including the respondent’s clients’ files by close of business on 27 August 2020 – being instructions from a person who was the principal of the firm and the applicant’s legal supervisor. The applicant did not return the files. What happened thereafter, on 28 August 2020, was that the relationship between the applicant and the respondent was unambiguously summarily terminated by Mr Pall. If the circumstances of the termination of the relationship constituted a dismissal, then the termination officially occurred, I find, on 28 August 2020. That is, in correspondence dated 28 August 2020, Mr Pall advised the applicant: “Your engagement is terminated with immediate effect.”
[91] Drawing from the principles concerning the Code in authorities including Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo 4 and Ryman v Thrash Pty Ltd5, the termination of the relationship between the applicant and the respondent – if it constituted a dismissal from employment - was, I find, Code-compliant. To return to the text of the Code, the summary dismissal provisions provide that “It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. …”. The applicant’s purposeful actions objectively gave cause for Mr Pall’s belief on reasonable grounds that the applicant’s conduct was sufficiently serious to justify immediate termination of the relationship. While there was initial reference to an investigation being undertaken by Mr Pall, matters as to the failure by the applicant to leave the respondent’s premises and the failure to return files did not require investigation. It cannot be accepted that the applicant could not have returned the files of the respondent’s clients due to a shortness of time allowed by Mr Pall, as the applicant appeared to suggest. Rather, the applicant retained the files of the respondent’s clients for his own purposes. The applicant’s post-termination correspondence dated 31 August 2020 made this clear, in that the applicant wrote that once Mr Pall had attended to various demands and made a payment of $93,736.58 (including for post-termination invoicing for matters said to include work undertaken as IT services and furniture assembly/removal) “only then” would he “handover the office items … such as case files …”. Separately, the submissions indicated that, months after 28 August 2020, the applicant had still not returned files of the respondent’s clients.
[92] Given my findings concerning the respondent’s jurisdictional objection and/or the Code, an order dismissing the applicant’s application for an unfair dismissal remedy issues in conjunction with these reasons. The proceedings are concluded.
COMMISSIONER
Appearances:
P Patial, applicant, on his own behalf.
S Christie for the respondent (with T Traill (30 March 2021) and T Plummer (20 April and 20 May 2021)).
Hearing details:
2021.
Sydney:
May 20.
April 20.
March 9 and 30.
Final written submissions:
23 July 2021.
Printed by authority of the Commonwealth Government Printer
<PR731723>
1 Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario [2011] FWAFB 8307.
2 Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats [2020] FWCFB 1698.
3 Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at 112.
4 John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo [2012] FWAFB 1359.
5 Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automative Services [2015] FWCFB 5264.