Law graduate dismissed by firm … Fair Work Commission finds that unpaid PLT does not count towards a “minimum employment period” … No unfair dismissal protections for intern who morphed into an employee … Peta Leigh examines the traps for young players 

Under the Fair Work Act, the relevant unfair dismissal remedies in this sort off case are unavailable to employees who have not served the statutory minimum employment period of six months. 

Klievens’ dismissal from Cappello Rowe occurred within six months of his engagement as a formal employee of the firm. 

Nonetheless, he argued that he was eligible for a remedy because his initial engagement as an unpaid work experience student had commenced more than six months earlier. 

Klievens’ submitted that his initial engagement with the firm as a work experience student could be characterised as an “employment relationship”. 

Such a finding could also have the effect of rendering the arrangement for that period illegal because, as highlighted by the Commissioner Leigh Johns, unpaid work experience is unlawful where an employment relationship exists. 

The law firm sought to establish that the arrangement with Klievens fell squarely within the exception created by section 13 of the Fair Work Act, whereby the entitlements of national system employees do not apply to people on vocational placements, being any such placement required as part of an education or training course.

Klievens commenced work with the small Sydney firm in August 2016, on an ad hoc, unpaid basis, to fulfil the requirements of practical legal training leading to admission. As recorded in Klievens’ “work experience declaration” submitted to the College of Law, in September 2016 his work with the firm became more frequent to the point where he ceased other paid employment and began working at the firm five days per week. 

On October 20, 2016, two months and 15 days after the applicant first commenced working with the firm he accepted a formal offer of employment as a law clerk, with a probation period of six months.

However on March 29, 2017, following a declaration from the applicant to his employer that his work was causing him psychiatric distress, his’ employment was terminated. 

The report found that in spite of the paid clerkship regimes in large firms, the enormous volume of law students outside of these channels who are “desperate to break into the profession” often feel compelled to accept unpaid work. 

Half of surveyed law students had reportedly undertaken some unpaid work, in many cases for private law firms and barristers, leading to the inference that small law firms may have a tendency to accept unpaid work from students prior to the PLT stage. Of this bleak situation, the report noted:

“… the stated reasons for law students undertaking unpaid work experience varied somewhat; two particular but contrasting favourites of ours were ‘kindness’ and ‘cold ambition’.”

The report ultimately speaks to the situation in which Klievens found himself, where law students often feel as though they have little choice but to accept unpaid work as a way of breaking into a tightknit profession. 

In this case, and many others like it, it falls to the Fair Work Commission to determine whether the student is an employee or merely a person undertaking a relevant vocational placement. 

In examining this last criterion, the commissioner found that: 

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

Perhaps additional guidelines in respect of PLT are needed to take account of the “cold ambition” of the current oversupply of prospective lawyers.