WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES MICHAEL TKACZ

CLAIMANT

-v-

Watson H J & Associates

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G.N. CALDER

HEARD Wednesday, 8 March 2006, Wednesday, 15 March 2006, Thursday, 10 May 2007, Wednesday, 9 May 2007, Wednesday, 14 February 2007, Thursday, 15 February 2007, Wednesday, 20 December 2006, Friday, 16 February 2007, Wednesday, 24 January 2007, Wednesday, 14 June 2006, Thursday, 31 August 2006

DELIVERED TUESDAY 28 august 2007

CLAIM NO. M 87 OF 2005

CITATION NO. 2007 WAIRC 01030

CatchWords Minimum Conditions of Employment Act 1993; Claim for minimum wages and conditions; Whether a contract of employment; Whether an employer/employee relationship; Volunteer; Unpaid work experience; Intention of the parties.

Legislation Minimum Conditions of Employment Act 1993

 Industrial Relations Act 1979

 Minimum Conditons of Employment Regulations 1993

Cases Cited Attorney-General (NSW) v Perpetual Trustee Co Ltd and Others

 (1951-1952) 85 CLR 237 at 299

 Hignett v Joburen (2000) 80 WAIG 217

 Jones v Dunkel (1959) 101 CLR 298

 Loman v Jones and Son [1944] KB 4

 Stevens v Brodribb Sawmilling Co Pty Ltd (1985-1986) 160 CLR

Cases referred to

in decision Tkacz v The State of Western Australia [2005] WASCA 108

 Re Tkacz; ex parte Tkacz [2006] WASC 315

Result Claim dismissed

Representation 

Claimant Mr D Pugh appeared on behalf of the Claimant

Respondent Mr K J Trainer appeared on behalf of the Respondent

REASONS FOR DECISION

THE CLAIM

1         Mr Michael Tkacz, (the Claimant) claims from “Watson HJ & Associates” (“the Respondent”) specified amounts that have not been paid arising from an alleged breach by the Respondent of an oral contract of employment.  The Claimant relies upon the provision of the Minimum Conditions of Employment Act 1993 (WA) (the MCE Act).  In particular he relies upon the provisions of sections 5 and 7 of the MCE Act.  The essential basis of his claim, for purposes of the MCE Act, is that at all material times a contractual relationship of employer and employee as between himself and the Respondent was in place.

The Named Respondent

2         The named Respondent to the proceedings is “Watson HJ & Associates”.  In the case outline and particulars lodged on behalf of the Claimant, express reference is made at paragraph 4 to “The Respondent, Watson HJ & Associates” and it is alleged that the named Respondent carries on business as barristers and solicitors in Midland.  There is no evidence before me as to whether “Watson HJ & Associates” exists as a separate legal entity or whether it is a registered business name.  In giving her evidence Ms Heather Watson said that she is a legal practitioner and that she is the principal of “HJ Watson & Associates”.  When asked about staff who were employed in the running of the legal practice she answered in the first person and said that she had engaged staff members from time to time and that (she) would ordinarily have as staff a secretary/personal assistant, a bookkeeper and an employed solicitor and that (she) had had various people who would come and go as volunteers in and out of “my office”.  The tenor of the whole of Ms Watson’s evidence and that of the Claimant and of the witnesses before me is that the claim is against Ms Watson personally. I am satisfied that Ms Watson uses the firm name “HJ Watson & Associates”. The issue of the legal status, if any, of the named Respondent was never raised in opening or closing submissions or in the course of the hearing of evidence.  I have decided, given that the claim will be dismissed by me, that the resolution of any issue as to the status of the named Respondent is, as a matter of practicality, of no consequence as, even if Ms Watson had been named personally as the Respondent, the outcome would be unchanged. 

Particulars of the Claim

3         The Claimant says that the relevant terms of the contract were that the Respondent would pay statutory minimum wages and afford conditions pursuant to the MCE Act, that the Respondent would pay for the Claimant’s costs for the Articles training programme and that the Claimant would carry out the duties of a law clerk as directed during ordinary working hours.  It is said that the Respondent and the Claimant had a relationship of employer and employee as defined by section 7(1) of the Industrial Relations Act 1979 (WA) (“the IR Act”).  It is denied that, at the material time, the Claimant was a class of person prescribed by the Minimum Conditions of Employment Regulations 1993 (“the MCE Regs”), Schedule 1.  Regulation 3 of the MCE Regs says that the classes of persons set out in Schedule 1 are prescribed as persons who are not to be treated as employees for purposes of the MCE Act.  Schedule 1 contains 5 clauses prescribing persons who are not employees for purposes of the MCE Act and those categories of persons are:

1. Persons whose services are remunerated wholly by commission or percentage reward.
2. Persons whose services are remunerated wholly at piece rates.
3. Persons who receive a disability support pension under the Social Security Act 1991 and whose employment is supported by “supported employment services”.
4. Persons who are not entitled to be paid for work done by them but who receive some benefit or entitlement in relation to the work.
5. Persons appointed under the National Trust of Australia (W.A.) Act 1964 to carry out the duties of wardens.

4         I take the denial in the Claimant’s case outline and particulars to be a denial that, as is alleged by the Respondent, he was ever a “volunteer” for purposes of the MCE Act and the MCE Regs.  The connection between section 5 of the MCE Act and regulation 3 and Schedule 1 of the MCE Regs derives from the definition of “employee” in section 3(1) of the MCE Act, namely, “. . . means a person who is an employee within the meaning of the IR Act, but does not include a person who belongs to a class of persons prescribed by the regulations as persons not to be treated as employees for the purposes of this Act”.  In his case outline and particulars the Claimant says that during September and October 2004, at a time when he was undertaking unpaid work experience with the Respondent, he and Ms Watson discussed and agreed the terms of the contract of employment.  It is said that on 10 November 2004 it was agreed that the Claimant would commence paid employment with the Respondent on 29 November 2004.  The Claimant alleges that after working for one week full-time he was not paid the wages due to him on 3 December 2004, that he was told by Ms Watson that she could not afford to pay him and that she wanted him to continue the unpaid work experience.  The Claimant says that because of that conversation he resigned on 7 December 2004.He says that as a consequence of discussions that took place over the following two days between himself and Ms Watson, during which, it is said, Ms Watson said that she wanted him to return to work for her in a paid capacity, he agreed to return to full-time paid employment with the Respondent.  He said it was agreed that the Respondent could not afford to pay the Claimant until after the Christmas holiday period, after which period the Respondent would pay him for the period worked from 29 November 2004.  The Claimant says that during the period from January 2005 to April 2005 he repeatedly requested that he be paid his entitlements and Ms Watson repeatedly promised that she would pay him.  He says that no wages were paid to him at all during the period of employment, namely, 29 November 2004 to 22 April 2005 and that no other entitlements were paid to him.  He says that he terminated the employment contract on 22 April 2005.

5         The Claimant seeks wages and payment of other allowances, namely, public holiday pay, annual leave pay and superannuation for the period from 29 November 2004 to 22 April 2005.  He also seeks payment of a penalty, interest and costs.

6         The Claimant, presumably in the alternative, seeks damages based upon quantum meruit.  He says that the Respondent invoiced clients for work undertaken by the Claimant and freely accepted by the Respondent during the employment period and that as a consequence the Respondent was unjustly enriched.  It is said that “As a consequence of the Respondent’s unjust enrichment and having freely accepted the Claimant’s work, and the Claimant being led to believe he would be paid for the work, the Claimant claims quantum meruit for the value of the amounts specified . . .”.

THE DEFENCE

7         The Respondent denies that at any time she entered into a contract of employment with the Claimant.  The Respondent says that the Claimant was offered and accepted the opportunity to gain work experience with the Respondent for an undefined period of time and without any payment and without any of the benefits or conditions claimed by the Claimant.  It is said that, having commenced and performed such work experience, the Claimant wrote to the Respondent in December 2004 advising of his resignation from the unpaid voluntary work experience arrangement but that the Respondent subsequently permitted him to resume working with the Respondent in the same capacity in early January 2005 and subject to the same conditions of engagement.  The Respondent says that the Claimant unilaterally elected to bring the arrangement to an end on 22 April 2005.

8         In the Respondent’s particulars of defence it is further said that at all material times the Claimant was receiving or was entitled to receive Centrelink payments, that he was at any time able to seek alternative paid employment and that from time to time the Claimant advised the Respondent of his various attendances at Centrelink.

9         The Respondent specifically denies each of the particulars set out in the Claimant’s case outline and particulars and denies the particulars of loss or damage.  The Respondent submits that the MCE Act does not apply to the arrangement that existed between the parties.  The Respondent denies that it ever agreed to enter into an employment relationship with the Claimant or to make any payments to the Claimant. The Respondent also denies any right of the Claimant to payment for public holidays and disputes the claim for holiday payment and the claim relating to hours of attendance for work on the part of the Claimant.

10      The Respondent submits that this Court has no jurisdiction to make an award of superannuation as is claimed.

THE EVIDENCE

For The Claimant

11      Amongst other academic qualifications the Claimant has an LL.B and was admitted as a legal practitioner in Western Australia in December 2006.  He was admitted as a legal practitioner in New South Wales in April 2006.

12      Ms Heather Watson is the principal of the named Respondent, Watson HJ & Associates.  She is a legal practitioner, having been admitted to practice in this State approximately twenty five years ago.  The Claimant first met Ms Watson at the Supreme Court of Western Australia in the latter half of 2004 when he approached her.  They engaged in conversation.  The Claimant says that Ms Watson told him that she was looking for an Articled Clerk.  At the time the Claimant was still studying for his final exams to obtain his LL.B at Murdoch University.  The Claimant was also engaged in the task of proceeding, as a self-represented appellant, in an endeavour to have the Supreme Court of Western Australia set aside his conviction, after a jury trial in the District Court of Western Australia, of an offence of being a public officer who, without lawful authority or reasonable excuse, acted corruptly in the performance or discharge of the functions of his office so as to gain a benefit, contrary to section 83(c) of the Criminal Code (WA).  He was ultimately unsuccessful in that appeal (Tkacz v The State of Western Australia [2005] WASCA 108) before the Court of Appeal.  The circumstances that led to the Claimant’s conviction are, in summary, as follows.  At the material time he was employed by Curtin University as a Telecommunications Manager and in that capacity was provided with a corporate credit card.  He used the card to buy a mobile telephone which he gave to one of his work colleagues as a present for her private use.  That was in December 1996.  Until December in 1997 Curtin University was billed for and paid the telephone accounts for that telephone.  The Claimant had told his work colleague to whom he had given the telephone for her private use that he would “sort out” the payment of her telephone account and arrange for accounts to be issued in her name.  He discussed with her the reimbursement to him of amounts that were paid, in fact, by Curtin.  His work colleague was not aware that Curtin was paying for her use of the telephone.  The colleague did give to the Claimant one amount of money in payment for such use.  In her evidence at trial she could not remember when she did that or what amount it was.  The Claimant had given instructions to another employee of Curtin, who reported to the Claimant and who was required to follow directions and instructions given to him by the Claimant concerning how bills for the subject mobile telephone were to be dealt with administratively.  That employee followed those instructions.  Those instructions resulted, inter alia, in telephone bills for the subject telephone being consolidated into one account into which bills for other mobile telephones held in the name of Curtin were also consolidated.  The employee was also told that when the consolidated account was received he was to assign the cost to various cost centres.  As a consequence of the Claimant’s actions being discovered by management at Curtin after the other employee to whom I have just referred reported the matter to senior management, the Claimant was suspended in August 1998 and subsequently dismissed in November 1998.  The Claimant was not authorised to provide a mobile telephone to his work colleague as he had done.  He was not authorised to allow the accounts incurred in the private use of that telephone to be charged to or paid for by Curtin.

13      The Claimant’s appeal against his conviction was heard by the Court of Appeal in May 2005 and the judgment of the Court dismissing his appeal was delivered in mid June 2005.  I have made the above summary of the material facts from the published report of the case.

14      The Claimant said in his evidence that from 19 July 2004 he worked for the Respondent full-time for one week and thereafter every Tuesday and Thursday up until 10 November 2004.  He said that it was unpaid work and as had been agreed between him and Ms Watson.  He said that during that period he had worked a total of 249 hours.  He described the work that he had been doing in general terms, namely, attending on clients for the purposes of preparation of wills and handling of probate matters.  He produced time sheets that he said he had kept from 19 July 2004 when he first commenced working with the Respondent until 22 April 2005 when he ceased working for the Respondent.  He said that he began full-time employment on 29 November 2004 and he said that he did so on the assumption that he was going to be paid a wage and to receive other benefits and conditions.  The Claimant’s evidence is that up until 10 November 2004 when he ceased working part-time for a short period he was receiving Newstart Allowance.  He said that when he had first commenced working for the Respondent, Ms Watson had asked him to inquire of Centrelink what effect his commencing paid employment would have on his Centrelink entitlements.  He produced calculations that he said he had made in August 2004 of how earning a minimum wage of $467.40 would impact upon his Centrelink benefits.  At the time he was married with two children and his benefit entitlements reflected that.

15      The Claimant said that during September and October he and Ms Watson began discussing more frequently his future prospects and in the course of that the issue of his conviction was raised.  He said that one focus of the discussions was whether, given his conviction, the Legal Practice Board of Western Australia would even consider him for admission as a practitioner.  He said that, in that regard, Ms Watson organised a meeting with Ms Cole, an employee of the Legal Practice Board, to discuss with her what he may need to do in order to get some kind of confirmation from the Board that it may be possible for him to obtain Articles.  He said that he was ultimately informed by the Legal Practice Board that because of his conviction he could not be admitted as a practitioner.  He subsequently made an application to the Supreme Court of Western Australia for an order that he be admitted as a legal practitioner in Western Australia, having previously been admitted in April 2006 to practise as a lawyer of the Supreme Court of New South Wales .  His application to the Supreme Court of Western Australia was lodged by him in the in November 2006. In December 2006 the Court heard the application and on the same day determined that he should be admitted to practise.  He was duly admitted to practise at the next admission ceremony on 20 December 2006.

16      In determining that the Claimant should be admitted the Full Court said (70-78) that the Court was required to exercise its discretion in determining the application by having regard to his conviction in the light, inter alia, of the circumstance that there was nothing other than that conviction which would cast any doubt upon his character or his suitability to practise.  The Court observed that the offence in question had occurred six years prior to the conviction and well before he had commenced his legal studies and that it was not a case where a person with legal training, by his conduct, had shown disrespect for the law which was antithetical to that training.  The Court also said that the events giving rise to the conviction did not reveal a flagrant disregard for the law or a sustained course of dishonesty but, rather, a failure to properly safeguard the interests of his employer and to distinguish between those interests and his own.  The Court also took into account that the amount of money involved in the events was not great, namely around $700.00 and that he had received no personal benefit from the events giving rise to his conviction.  The Court also recognised that the fine of $750.00 that was imposed upon him indicated that the trial Judge did not take a particularly serious view of the matter.

17      In his evidence during cross-examination in relation to the alleged formation of a contract of employment and in relation to discussions with Ms Watson surrounding that matter, the Claimant said that Ms Watson never told him that she would never employ a person with a criminal record.  He also said that he did not believe that there had been any discussion at all between him and Ms Watson where she said that his employment was conditional upon passing his final exams.  He agreed, however, that there had been discussion concerning the effect that his conviction may have upon his ability to gain Articles, although he did not accept that that had been discussed frequently.  He agreed that he had shown to Ms Watson a letter that he had prepared for submission by himself to the Legal Practice Board.  He said that she did nothing about that letter which, was ultimately never sent.  A draft of the letter dated 6 December 2004 was tendered in evidence (exhibit 21).  He said that he had begun to prepare the letter after he had met with Ms Cole.  The letter, in essence, sets out his personal history and experience, including his conviction and his, as then, unheard appeal from that conviction.  It is dated the day before he formally resigned from his position with the Respondent on 7 December 2004.

18      The Claimant said that as at 29 November 2004 he was expecting to be offered Articles if the Legal Practice Board said that he would be accepted.  It is his evidence that Ms Watson said to him that she would give him Articles if the Board said that he was acceptable to the Board.  He agreed, however, that by 29 November 2004 he did not know whether he had passed all of his exams to complete his LL.B.

19      Concerning a discussion between the Claimant and Ms Watson which occurred immediately prior to his resignation, the evidence of the Claimant is that it took place on 7 December 2004 and he denied that, as was put to him during cross-examination, the conversation took place on 6 December 2004.  In relation to the contents of the conversation, however, he said that Ms Watson was very frank.  He said that she told him that he was not going to be given Articles by her at that time.  She said that she was concerned about his conviction.  He said that while the discussion was taking place between him and Ms Watson, he wrote down a number of things that she said.  He said that she said, inter alia, that his conviction put pressure on her, that she did not want problems in her life that she would have to pay the minimum wage and money does not fall out of heaven.  He said that she said that she needed time to contemplate, that she did not want her reputation damaged and that she was trying to think for both of them.

20      The Claimant said that it had always been his intention to work for a small law firm such as that of the Respondent and not for a large law firm.  He said that he did not consider that his age (being sixty years) was likely to be an impediment to his gaining work in another firm.  He said that his conviction was not a reason why he did not apply to work in a larger firm than that of the Respondent.

21      The Claimant was in receipt of Centrelink Newstart Allowance payments for nearly the whole of the time when he worked at the offices of the Respondent.  In a form that he completed for the period Tuesday, 10 August 2004 to Monday, 1 November 2004, in answer to the question “Did you do any work in the period 10 August 2004 to Monday 01 November 2004?” he answered “No”.  At question 4 of the same form he was asked the question “Did you participate in a Centrelink approved activity in the period, Eg study, training, Mutual Obligation . . . ?”  To that question he answered “Yes” and showed that date of starting such activity as being 10 August 2004 and the date when the activity stopped as being 30 November 2004.  He said that the activity was continuing and that it was full-time.  It was during that period that he was still studying to complete his degree.  He stated as much at question 6 of the same form.  He did not mention on the form that he was working for the Respondent.  The Claimant was shown a series of other Newstart Allowance Application forms for the period commencing Monday, 10 January 2005 and ending 21 February 2005.  In every case, question 1 was the same question as had been on the form for the period beginning 10 August 2004.  In every case, he answered to the effect that he had not done any work during the relevant period.  In every case in the forms for the period from December 2004 to February 2005 he answered “No” to the question whether he had participated in a Centrelink approved activity and, on every occasion, he stated that he had looked for work during the relevant period and he nominated various potential employers.  In explanation in his evidence for having answered “No” to the question asking whether he had done any work in the relevant period, he said, in effect, that he understood it was a “formal declaration” in which it was required to be truthful.  In each of the forms there is an instruction in that part of the form that relates to the question about having done any work.  The instruction is: “What were your earnings BEFORE tax or other deductions? (You must tell us even if you have not yet been paid.)”.  There is then a requirement for the person completing the form to indicate whether the work is part-time or full-time.  There is also provision for the amount that the applicant earned in the period or will earn each fortnight to be shown.  In none of the forms that I have just referred to did the Claimant specify either any amount earned during the period in question or the amount that he was to earn each fortnight.

22      During cross-examination the Claimant said that he had been told by Centrelink between Christmas 2004 and the end of the year 2004 that he was obliged to comply with Centrelink’s requirements concerning his seeking of employment and attending interviews.  He said that he informed Ms Watson of those obligations.  He considered that he had no choice but to comply with the requirements of Centrelink.  He said it was his understanding that Centrelink required that if he received a job offer he was obliged to accept.  In that regard he said that he had not really engaged in discussions concerning employment with WA Legal Pty Ltd by mid February 2005 although he had received a job offer from that firm in January 2005.  He said that he had declined that offer because he considered that he already had a paid job with the Respondent.  Neither WA Legal nor Ms Watson or Watson HJ & Associates are mentioned amongst the employers with whom he stated in his Centrelink forms he had made contact for the purpose of looking for work.

23      In re-examination, the Claimant said in respect of question 1 of the Centrelink Newstart Allowance application form  where applicants are instructed to provide details of earnings and instructed that they must tell Centrelink “…even if you have not yet been paid…”, he said, in effect,  that he had discussed the matter “with Centrelink” and “they” had said that in that part of the form an  amount was only to be stated that part of the form  if the applicant was expecting to get paid for that fortnight.

24      Ms Cole, an employee of the Legal Practice Board of Western Australia, was called as a witness by the Claimant.  Her evidence was that in about October 2004 the Claimant and Ms Watson, together, had met with her in her office for about fifteen minutes.  The three of them had discussed, in general terms, what options the Claimant may have in connection with his being Articled to the Respondent firm.  She told them that the Claimant’s options were that he could make an initial preliminary inquiry in writing to the Board as to the prospects of the Board being satisfied that he was a person who would be accepted as being of good character for the purpose of registration of the Articles or, in the alternative, he could simply make an application for registration of Articles without making any such preliminary inquiry of the Board.

25      The wife of the Claimant gave evidence.  Much of her evidence was hearsay; repeating matters that she had been told by the Claimant.  Mrs Tkacz said that on 7 December 2004 (the day when the Claimant resigned from his position with the Respondent) Ms Watson had rung her at home and said that, as between herself and the Claimant, there may have been some confusion and misunderstanding about him being paid.  Mrs Tkacz said that Ms Watson told her that she intended to pay Mr Tkacz.  The witness also said that the Respondent told her that the Claimant had not been paid because “lots of things had happened”.  Mrs Tkacz also gave evidence that was consistent with that of her husband concerning communications with Centrelink in respect of benefits that were being paid or, in some cases, being stopped or reduced.  During cross-examination Mrs Tkacz was firm in her evidence to the effect that during the telephone conversation between herself and Ms Watson on 7 December 2004 Ms Watson had said that it was her intention to pay her husband.  She said that she would never forget that.

26      Evidence was given by Mr Paul Solarski, a solicitor employed by WA Legal Pty Ltd.  I accept the evidence of Mr Solarski as being true.  He said that he first met the Claimant when they were both studying at the University of Notre Dame in about February 2002 and became friends.  He said that on 21 March 2005 he offered Mr Tkacz a position with WA Legal as an employee; however, Mr Tkacz declined that offer and told Mr Solarski that he was happy working with Ms Watson.  Mr Solarski said that Mr Tkacz also said that, in any event, he was reluctant to be employed by WA Legal in a position where he would have been given responsibility for the family law area of practice of the firm.  On 6 April 2005 Mr Solarski and the Claimant met with the principal of WA Legal, Mr Gebasky, and discussed the employment of the Claimant by WA Legal.  At the meeting Mr Tkacz said that he needed time to think about the offer of employment.  On 11 May 2005 Mr Tkacz accepted the offer of employment and he commenced working with WA Legal as a law clerk on 16 May 2005.

27      Mr Solarski described the Claimant as a very nice person, a person who is helpful to others and said that during his employment with WA Legal the Claimant had been hardworking, thorough, punctual and caring.  At the time of the hearing Mr Tkacz was no longer working with WA Legal, however, Mr Solarski said that on the same morning upon which Mr Solarski gave his evidence before me he had offered to re-employ Mr Tkacz.

28      During cross-examination Mr Solarski said he did not know Ms Watson.  He said that he first had an informal discussion with the Claimant about employment with WA Legal in about December 2004.  He said, in effect, that before any final employment agreement could have emerged from that discussion a number of details of the contractual arrangement would have required working out.  He said it was anticipated that if the Claimant became employed by WA Legal it would be expected that, in due course, he would be admitted as a legal practitioner.

29      Mr Charles Cook, a legal practitioner, gave evidence on behalf of the Claimant.  He worked for the Respondent for about four years up to mid May 2006 as a solicitor and prior to that as an Articled Clerk.  He said that he ceased employment with the Respondent after having a discussion with Ms Watson about the circumstances connected with the Claimant having worked with the Respondent and having then resigned.  Mr Cook said that before Mr Tkacz began working at the office Ms Watson had said to Mr Cook that “. . . she had met someone that might be able to commence employment or might be able to do some work experience at the firm . . .”.  He said that when Mr Tkacz was working for the Respondent both he and Ms Watson had supervised that work.  He said that up until the time that the Claimant commenced working full-time in November 2004 he was working two days a week, on Tuesdays and Thursdays.  Mr Cook said that that was “. . . kind of a work experience . . .”.  He said that Mr Tkacz was quite competent, that he picked up drafting quite quickly, that he got on well with the clients and that he had not heard Ms Watson make any complaints about the Claimant.  Mr Cook said that Ms Watson told him that depending upon the results of his studies and, subject to “. . . another issue which he had to sort out with the Board . . .” then Ms Watson “. . . would . . . look at employing him as an Articled Clerk . . .”.  Mr Cook said that the issue of pay for Mr Tkacz was never raised between himself and Ms Watson during the time when Mr Tkaz was working with the Respondent.

30      Mr Cook said that after Mr Tkacz had resigned and then re-commenced work in December 2004, Mr Cook had informed Ms Watson that Mr Tkacz had told him that he was not being paid for his work.  He said that in response to that Ms Watson had said to him that she was paying Mr Tkacz.

31      During cross-examination the witness agreed that Ms Watson had a “standard rule” that she would not employ people who had a criminal conviction.  He said, however, that he thought that it was her view that if the Claimant had “overcome” that matter then she would have considered employing him.  He agreed that the purpose of that rule or standard on the part of Ms Watson was to protect her standing in the legal profession and to protect the reputation of the firm.

For The Respondent

32      Ms Heather Watson is the principal of HJ Watson & Associates.  She is a legal practitioner and has practised as a barrister and solicitor since admission approximately twenty-five years ago in Western Australia.  Her practice is a small practice.  She usually employs a solicitor, a bookkeeper and a secretary.  She has in the past allowed people to work in the firm in order to gain unpaid work experience.  She has also, at different times, in the past employed Articled Clerks.  Her evidence is consistent with that of the Claimant as to the circumstances in which they met, namely, in the car park at the Supreme Court in Perth where he approached her and introduced himself and said that he was a law student and was told by her that she was a solicitor practising in Midland.  She said that sometime after that meeting he telephoned her and inquired whether or not he may come and meet with her at her office and she agreed to that request.  Ms Watson said that it was on that occasion that he first mentioned to her that he was conducting appeal proceedings in the Supreme Court.  She said that he told her that the subject matter of the appeal had arisen out of his previous employment and that people with whom he had been employed “had it in for him”.  The Respondent said that he gave her the impression that it was a petty matter and that it would be resolved in his favour in the near future.  The Respondent said that she later received a letter from the Claimant dated 31 May 2004 to which was attached his Curriculum Vitae.  That letter was tendered in evidence.  It begins with the words “I wish to apply for Articles with your firm during 2005”.  In her evidence Ms Watson noted that there was no reference therein to his criminal conviction.

33      Ms Watson said that during a meeting with the Claimant at her office prior to 31 May 2004 the Claimant had told her that he dreamed of and aimed to work in a suburban practice and that he asked her whether she would allow him to work for her to gain work experience.  She said that he also told her that he was in receipt of Centrelink benefit payments and that, because he had asked her to give him the opportunity to work at her firm, she presumed that Centrelink had approved him undertaking work experience while receiving benefit payments.

34      Ms Watson said that the Claimant commenced working in about July 2004.  She said that when he commenced work she told her staff that no clients were to be charged for any work undertaken by Mr Tkacz.  She said that at no time while Mr Tkacz was working with her firm did she in any way change that instruction and, inferentially, said that she never revoked it.  She said that there were no arrangements in place for Mr Tkacz to be paid for the work performed by him while on work experience.  The evidence of the Respondent was to the effect that although the Claimant did perform a number of tasks he was given no responsibility for any particular area of legal work in her office.  She said he was able to draft wills that would be referred to either herself or Mr Cook, the employed solicitor.  She said that the days that he worked at the firm were a matter of his choice and that he could come and go as he liked.  She said that she was not all that interested in what work he was doing and that she kept no record of his attendances.  Ms Watson said that she has never employed any person as a law clerk and that, at the time when the Claimant commenced work, she had no need for a law clerk.  She said that the practice was very busy during the material period but that she had no need for a law clerk to be employed during the whole of the time that Mr Tkacz worked at the firm.  She said that the Claimant was very willing to learn and that she did appreciate his doing the work that he did undertake on work experience.

35      Ms Watson gave evidence, which I accept as true, about the assistance that she gave to the Claimant in his endeavours to resolve his and her concerns about his conviction in the District Court and his desire to gain Articles of Clerkship in Western Australia.  She said that on one occasion she attended at the Supreme Court with him when he appeared before a single Judge on what I infer was probably a directions hearing.  She said that he represented himself before the Court and was told by the presiding Justice that he should do something about progressing his appeal.  Following that appearance Ms Watson realised that the subject matter of the appeal was more serious than she had been led to believe by the Claimant.  She formed the opinion that it was a matter that would not easily go away.  She told the Claimant, as he had also been told by the Court, that he must progress the appeal at a faster rate than he was doing. As a consequence of her great concern about the conviction she later made a personal approach to counsel, Mr McCusker QC, and made arrangements for the Claimant and Ms Watson to attend upon Mr McCusker in order that Mr McCusker could advise him as to his prospects of success in his appeal against his conviction.  Mr McCusker, having spent some time discussing the case with them both and then retiring to privately peruse the material that was given to him, immediately advised both Ms Watson and Mr Tkacz that it was his opinion that the appeal would be unsuccessful.  The Claimant later told Ms Watson that he intended to continue with his appeal and that he would conduct the proceedings himself.  By then Ms Watson had formed the view that the Claimant was “. . . in a lot of bother with whatever had happened”.  She was of the view that it was not the minor matter that the Claimant had portrayed it to be and that the Claimant had as she put it in evidence, a “substantial problem”.  Ms Watson said that it appeared to her that the Claimant was never ever going to be employed by her because he had a criminal conviction which, it appeared, was not going set aside.  She said that there was no way in the world that she would contemplate employing a person who had a conviction and that she has very strong views about criminals being in the legal profession.

36      Ms Watson said that during August and September 2004 there was no discussion between her and Mr Tkacz about his becoming an Articled Clerk with her, however, in October he told her that he wanted to discuss with the Legal Practice Board the issue of his conviction.  She said that the meeting with Ms Cole at the Board’s offices took about fifteen minutes and that the Claimant was advised by Ms Cole that all he could really do was write in and ask the Board to inform him of the approach that the Board may take to his application for admission.  Ms Watson said that her view as to the difficult position that the Claimant was in remained unchanged after the meeting.  She considered that even though Mr Tkacz was portraying the issue as being petty, in her opinion it was a serious problem.  She re-iterated that she would never offer him Articles while he had a criminal conviction; as she put it “never ever”.  She said that she told him that if he did not have any criminal conviction he could simply obtain his Articles and place a notice in the newspaper concerning his application and that, if no one objected to him, then the outcome would be alright.  She also said to him, however, that in the alternative, with a conviction, he would have to find a lawyer in Western Australia who was prepared to take someone with a criminal conviction to start as an Articled Clerk.  Ms Watson said that it was  after what had taken place in October that the Claimant told her that he was considering undertaking the option of the course offered by the Legal Practitioners Admission Board of New South Wales in order to obtain admission as a practitioner in that State.

37      Ms Watson said during October 2004 she had not discussed with the Claimant whether or not she would be paying him for the work that he was doing.  She said that the Claimant desperately wanted her to employ him and her response was that she would not do so.  She said that he had told her that he was receiving Centrelink benefits and that “. . . I wasn’t going to touch him with a criminal conviction”.  She said that when he returned to work in her office in late November 2004 after having completed his final examinations, she did not say anything to him to suggest that he would be paid from that time on and that she did not say anything to him to suggest that his prospect of obtaining Articles with her had changed.  She said that after he had completed his examinations, when he re-commenced working, the Claimant did work more hours than he had in the past.  She said, however, that the functions that he performed were unchanged and that her attitude towards his attendances and the hours that he worked remained unchanged.  She said that at the end of November 2004 the Claimant had told her that he had ceased receiving Centrelink payments and, because she was not going to employ him, she told him that he should re-commence receipt of Centrelink payments.  She said that she was very surprised when he told her what he had done because it was a unilateral action on his part.

38      Ms Watson said that on 6 December 2004 she had an extremely unpleasant conversation with the Claimant.  She described it as the worst conversation she had ever had in her whole life.  She said that she was of the opinion that the Claimant was badgering her by wanting to attach himself to her and by ceasing the Centrelink payments.  She said in her evidence that she realised that she had to be very blunt with him, that she could not get him out of the trouble that he was in and that she had to tell him in the strongest way that she would not employ someone who had a criminal conviction.  She said that she said to him that she had to tell him that she was never going to employ someone with a criminal conviction and, in the strongest way, tell him that she did not believe that any person who had a criminal conviction should be a lawyer.  She said that she told him that she refused to allow him to make his problem her problem.  She said that she told him that he was lucky that he had teaching skills and that if he could not become a lawyer he could use those teaching skills.

39      Ms Watson was shown a copy of the letter dated 6 December 2004 addressed to the Legal Practice Board of Western Australia with the Claimant’s name at the end thereof and a list of attachments; one of which is attached to the letter that was produced in evidence.  Ms Watson said that she did not see the letter on 6 December 2004 and that the Legal Practice Board of Western Australia subsequently wrote to her and disclosed to her a copy of the fourth paragraph on page two of the letter which states that she had offered the Claimant a position as an Articled Clerk in 2005 and which also says that the Claimant had commenced full-time employment with her on 29 November 2004 in the capacity of a law clerk until such time as a decision regarding his future is made by the Board.  The letter begins with a statement saying that the Claimant is seeking from the Board an indication as to his suitability as an Articled Clerk and subsequent admission as a legal practitioner.  She said that it was not true that she had offered the Claimant a position as an Articled Clerk.

40      Ms Watson said that on 7 December 2004 when she was at home she became aware that the Claimant had not attended at work and she became concerned for his welfare and rang his home and spoke to his wife.  She said that she did not discuss any issues of employment of the Claimant with Mrs Tkacz and that she did not say to Mrs Tkacz that the Claimant was going to be paid by her.  She denied that when he subsequently returned to work a few days later that she said that he needed to make a decision as to whether he was going to try and gain admission in Western Australia or in New South Wales.  She said that she never said to him that she was not in a position to be able to pay him at that time and that she wanted to defer paying him until the next year.  She said that she definitely did not make an offer of Articles to him.  She said that he had asked her to pay on his behalf $6,000.00 to enable him to gain admission in New South Wales but she had refused and suggested to him that he should ask Centrelink to make the payment.

41      Ms Watson said that after the Claimant told her he was going to seek admission in New South Wales she had signed, at the request of the Claimant, a document in which she acknowledged that she would provide him with work experience.  Ms Watson said that at about the same time the Claimant had been pestering her to provide him with a reference for the purposes of his proposed entry into the New South Wales College of Law course and his admission in New South Wales.  She said that she did not want to give him a reference and that she told him that he must know people who could give him a reference but that he eventually presented her with a reference that he had drafted.  During her evidence Ms Watson was shown a photocopy of the first page of the draft of the reference letter.  That has some hand-written alterations on it that Ms wrote. The alterations made by her are as follows. The addition of the words “…as work experience…” in the first paragraph where it was otherwise simply stated that the Claimant had worked for her for two days a week.  She altered it in the third paragraph where, in its original form, the draft states that the Claimant had completed his studies in November and had worked full-time assisting her.  The amendment that she made states that he had “…continued work experience…” rather than simply “worked”.  In the fifth paragraph of the first page Ms Watson made some minor amendments to the manner in which her opinion as to his character was expressed.  The witness was then shown a further exhibit, namely, the same reference re-typed with the hand written alterations that she had made to the document previously referred to.  That letter bears her signature.

42      Ms Watson said that in about March 2005 the Claimant had told her that because he was still in receipt of Centrelink payments he was obliged to look for work.  She said that she understood the nature of that obligation.  She said, however, that she did think it was strange that he was required by Centrelink to look for work when he was doing work experience for her and when, she believed, Centrelink was aware that he was doing that.  Ms Watson said that in about the middle of March he had asked her to sign a form in which she acknowledged that he had completed his required number of days work experience for the purpose of the New South Wales College of Law course.  She said that he also led her to believe that he was looking for alternative employment and that on one occasion he told her that he had been offered employment at another law firm.

43      Ms Watson agreed that in March 2005 she had signed a College of Law work experience declaration in which she certified that the Claimant had completed the required days of work experience as set out in an annexure to that document.  She said in evidence that when she signed the document she did not go through and actually check each date as to whether he had actually been in the office on those days but she said that, having since looked at the document, there are obvious anomalies in it.

44      In relation to the time sheets that were produced in evidence by the Claimant, Ms Watson said that she had seen them for the first time when they had been produced at the hearing before me and that she was shocked when she saw them.  She said that it was appalling that he had retained the document which showed her clients’ names and that he never sought her permission to make or keep such records.  She said that she had never at any time verified them as being an accurate record. She stressed most strongly that she did not want the documents to be returned to Mr Tkacz because of the private and confidential nature of their contents.  She said that she would never allow her staff to take any such document out of the office because it had clients’ names on it.

45      During cross-examination Ms Watson denied that she had deliberately kept the Claimant “dangling” without making any payment for the work he was doing in order to get the benefit of that work for nothing.  She denied that she had played any role in the drafting of the letter of 6 December 2004 from the Claimant to the Legal Practice Board of Western Australia in which, inter alia, the Claimant said that he had been offered Articles by her.  In answer to a question that, in effect, sought an explanation from Ms Watson as to how she rationalised  the apparent incongruity in her allowing the Claimant to work in her office knowing that he had a criminal conviction and her holding  the strongly professed principle that she had never and would never employ in her practice a person who had a criminal conviction, Ms Watson said that she thought she that had been stupid and she said, in effect, that she knew that he was appealing against his conviction and she accepted as true what he had told her or implied to her, namely, that the subject matter of the conviction was trivial and that he expected that it would be resolved by being set aside by the time he did his examinations.

46      In connection with the time sheets that had been completed by the Claimant, Ms Watson said that she has a general system in her office whereby every person working there was and is required to complete time sheets. She said that it did not follow, merely because the Claimant completed time sheets in which he recorded work and times that the work that he said he had done would be charged to clients.  When questioned in respect of particular entries in the time sheets that had been completed by the Claimant, Ms Watson said that she could not say whether or not any of the work described in the time sheets had been done by the Claimant at all or, if it had, whether he had recorded correctly the amount of time taken.  She said that the purpose of having the Claimant complete time sheets was not to give her the ability to check on what work he had been doing or how long he had been taking.  She said that completing time sheets was a normal part of work experience in an office such as hers.  She said that she never checked to see whether he was keeping accurate time sheets during the time that he worked in her office.  She repeated during cross-examination that her staff had been told that clients were not to be charged for work performed by Mr Tkacz. She said that she had absolutely no idea whether clients that he attended upon were later charged for his time.  Ms Watson said that she was not aware that the Claimant had received cash amounts paid to the firm by clients.  She said that he was not authorised to do that and that it was inconsistent with the established practice she had in her office for handling cash receipts.  Ms Watson made a Statutory Declaration dated 3 February 2006 in which she said that early in the second half of 2004 the Claimant had discussed his legal studies and potential difficulties he might have in gaining admission arising from his criminal record.  She said that she informed him that she would never employ a person with a criminal record. She also said that, to assist him, she agreed to provide him with work experience.  Ms Watson said that the Claimant told her that he was receiving Centrelink payments while he was working for her.  In the Statutory Declaration Ms Watson says that the Claimant had commenced legal action against herself in the Industrial Magistrates Court, Perth and that the Claimant avers a contract of employment and claims wages and other entitlements.  In the Statutory Declaration she denies that the Claimant was ever an employee.  During cross-examination she said that the purpose of making that Statutory Declaration, which she forwarded to the Executive Officer, Legal Profession Admissions Board New South Wales on 3 February 2006, was not to prevent Mr Tkacz from obtaining admission as a practitioner in New South Wales.  She said that the thrust of it was to provide the Board with relevant information.  She said that she withdrew the reference that she had given to Mr Tkacz in support of his application for enrolment in the College of Law.  She said in her evidence that she had asked him to return that reference.  She said that at the time of making the reference for him for purposes of his application to enrol in the New South Wales College of Law she believed that what she said in the reference about him was true.  She said that at the time she also expected that he would be successfully pursuing his appeal against conviction and that he would, hopefully, be a person without conviction.  Ms Watson agreed that it was after Mr Tkacz lodged his claim in the Court in August 2005 that she wrote to the New South Wales Legal Practitioners Admission Board withdrawing her reference.  She said that she did that because she by then thought that the Claimant was a liar.  She said that she did not take that action just because of the claim having been lodged in this Court.  She denied that she is a malicious person.

47      Mr Kenneth England was called as a witness by the Respondent.  He is a person who has known Ms Watson for approximately ten years and he has, on several occasions, in voluntary capacity, given assistance to clients of the Respondent.  He said that he met the Claimant while the Claimant was working in the Respondent’s office.  He said that on 19 October 2004 he had first introduced himself to the Claimant.  He said that Mr Tkacz said that he (the Claimant) was doing work experience and that Centrelink had agreed to allow him to do that and that Centrelink was paying him to do the work experience.  Mr England said that Mr Tkacz told him that he had taken Centrelink to Court over that matter.  Mr England said that he was particularly interested in that last aspect of what he had been told by Mr Tkacz because he was often involved in trying to assist people who were having difficulty in obtaining benefits from Centrelink.  He said that since 1986 he had given voluntary assistance to over one hundred people in connection with Centrelink matters.

48      Mr England described Ms Watson as being one of the most kind and generous people that he had ever met.  He said that she has helped many people over the ten years that he has known her and that she has on many occasions acted for clients without charging them.  Mr England said that he was at Ms Watson’s home in connection with a person to whom he was giving assistance, when Ms Watson informed him that she had been advised that Mr Tkacz had left the office that morning.

49      Mr Ronald Birmingham QC was called as a character witness for Ms Watson.  He said that he has known her since 1974 at Law School and that he had been briefed by her as Counsel on a number of occasions in the course of her carrying on her legal practice.  He said that they had been friends in that context.  He described Ms Watson as being of “unquestioned integrity”.  He said that he has never had any occasion to question her integrity and that she has always displayed to him the highest regard for the standards of the profession and very zealously guarded the profession and its reputation.  He said that in his experience she is a forthright person.  He said that if he had any criticism of her it would be that she is probably a bit soft on some of the people that she briefs in so far as she sees the good in everyone and does not readily see people in a bad light.

50      Mr Birmingham said that Ms Watson had consulted him and that he had provided her with legal advice in respect of her having written a reference for the Claimant that was to be used in connection with his application for admission as a practitioner in New South Wales.  He said that Ms Watson was very concerned about the reference in the light of what she had subsequently learned about the Claimant and that she no longer held the opinion that she had expressed in the reference.  He said that, in part, her concern arose from her obligations as a legal practitioner and of what she perceived as a possibility of the Complaints Committee of the Western Australian Legal Practice Board becoming involved.  Mr Birmingham was an elected member of the Western Australian Board from April 1989 until taking silk in 1997 and since then has remained actively involved in the functioning of the Board.  Mr Birmingham’s advice to Ms Watson was that she should immediately write to the Legal Practitioners Admission Board of New South Wales stating that she wished to withdraw the reference.  He drafted for her a letter for that purpose.  Mr Birmingham was not cross-examined.  I have no hesitation in accepting his evidence.

SUBMISSIONS

On Behalf of the Claimant

51      I have read the Claimant’s written closing submissions and his response to the Respondent’s written closing submissions.  Those submissions extensively canvas the evidence that I heard.  In essence, what the Claimant says is that an oral contract of employment was entered into between himself and the Respondent whereby it was agreed that he would work as a paid employee for the Respondent     from 29 November 2004, full-time.  It is said that it was agreed that the Respondent would employ him under the MCE Act as a law clerk and that his Articles training programme costs, if he were successful in gaining Articles, would be paid by Ms Watson.  The Claimant says that because of the contract of employment he did not seek employment with any other law firm and did not, in particular, seek employment elsewhere as an Articled Clerk.  The Claimant says that his action in cancelling his Newstart Allowance in December 2004 is consistent with and was because of his having obtained paid employment with the Respondent.  Reliance is placed by the Claimant on the oral evidence that he gave of the times and days that he worked together with records that he kept in the form of the personal time sheets that were tendered in evidence.

52      The Claimant denies that he was a volunteer during the relevant period when, he says, the relationship of employer and employee as between himself and the Respondent existed.  In particular, he says that he was not a volunteer pursuant to clause 4 of Schedule 1 of the MCE Regs during the period when he says the employer/employee relationship existed.  He concedes that he was a volunteer up until 10 November 2004.  The Claimant submits that the personal time sheets that he kept and the office time sheets that he also prepared, both of which are exhibits, show that the work he was doing was of a kind that would not be done by a volunteer and, in particular, was of a type which would be done by an employee.  It is submitted that it would be “highly unreasonable and most unusual” for a person on unpaid work experience to work over sixteen weeks and accumulate over six hundred and sixty hours of work time.

53      The Claimant submits that the resignation on 7 December 2004 of the Claimant, followed by his agreeing on 9 December 2004, during the course of a conversation by telephone with Ms Watson, to recommence working at the office is consistent with there having been an agreement both prior to and after 9 December that he was an employee for the purposes of section 7 of the Industrial Relations Act 1979 (WA) (the IR Act).  The Claimant also points to the fact that he had been in discussion with Mr Solarski from around Christmas 2004 concerning the possibility of employment with Gebarski & Associates and that he had not, until April 2005, formally accepted what developed between Christmas 2004 and March 2005 into a firm offer for employment with Gebarski & Associates as being consistent with the Respondent having engaged him during that period as an employee who was to be paid for his work.  I accept the evidence of Mr Solarski concerning the period of and the nature of his discussions with the Claimant concerning the offer of employment which was ultimately made to the Claimant by Mr Solarski on behalf of Gebarski & Associates.  In connection with the practical work element of the New South Wales College of Law course that the Claimant was required to fulfil, the Claimant notes that he was required to complete seventy five working days either part-time or full-time and says that it can be seen from the documents tendered at the hearing in that regard that that component of the course requirements was completed by 21 February 2005.  In response to the suggestion by the Respondent to the effect that the Claimant “needed” to work for the requisite number of days, the Claimant makes the point that it was not a requirement of the New South Wales College of Law course that the work element be achieved wholly with the one law firm.  It is said that it would have been possible for the Claimant to have ceased working with the Respondent and to have commenced working for Gebarski & Associates and to have thereby completed the seventy five days required.  In connection with the respective characters of the Claimant and Ms Watson, the Claimant acknowledges that he did not, by choice, call character witnesses.  It is said that he chose that course “. . . so as to not cloud the issues to be decided”.  I am invited, however, to take into account the comments made in the decision of the Supreme Court in the matter of Re Tkacz; ex parte Tkacz [2006] WASC 315 where the Full Court ruled that Mr Tkacz ought be admitted as a practitioner in Western Australia.  I have read that decision and take into account what was said by the Court in that regard.

54      The Claimant asserts, in effect, that Ms Watson had, from the time she wrote to the New South Wales Board withdrawing her reference and her support for his application for admission as a practitioner in that State and up until and during the course of the hearing, engaged in a course of conduct which was intended to adversely affect the Claimant’s character and reputation.  My attention is also drawn to a number of contradictory aspects in her evidence, in particular, her knowledge of the draft letter to the Legal Practice Board dated 6 December 2004 and her evidence about her subsequent receipt of either the whole or part of that letter in a communication to her from the Legal Practice Board.  Initially she said that she had come to know of it when the Legal Practice Board wrote to her and asked her whether she knew of it; she subsequently said that the Board had not sent her the whole letter, only a particular paragraph.  She subsequently said in evidence that she did not know how that particular part of the letter had come to her.  Mention was also made by the Claimant that the failure of the Respondent to readily discover the Claimant’s office time sheets, the Respondent having initially denied there existence.

On Behalf of the Respondent

55      The essential position taken by the Respondent by way of defence to the claim is that the relationship between the Respondent and the Claimant was never one of employer and employee and was nothing more than what it has described as, a work experience relationship.  It is said that at all material times Mr Tkacz was a volunteer who was entitled to no remuneration for services.  The role played by the Respondent, it is said, was no more than to permit Mr Tkacz to attend at the workplace and to work under supervision and without payment in order to gain work experience with a law firm.  It is said that the MCE Act and, in particular, the MCE Regs in clause 4 of Schedule 1, recognise that a person may work as a volunteer without there being any obligation on the part of the principal to provide wages and benefits and conditions that would otherwise be required to be provided to a paid employee by the employer.

56      The Respondent says that the absence of any requirement made upon the Claimant by the Respondent for him to attend during ordinary office hours and to account for any absences is inconsistent with a relationship of employer and employee of a contractual nature.  The Respondent points to a number of non-attendances at the office by Mr Tkacz that are recorded in his time sheets, amounting in all to fourteen, between 1 December 2004 and 20 April 2005.  It is said that in his evidence the Claimant was unable to explain why he was not in attendance on those days.  It is also pointed out that most of those absences occurred after Mr Tkacz had completed, on the basis of his own records, the seventy five hours work component required for the purposes of the New South Wales College of Law course.  In that regard, the Respondent says that the absences are substantial and inconsistent with the concept of a contract of paid employment.  The Respondent also points to the continued receipt (save for a short period in December 2004) by Mr Tkacz or his wife of Centrelink benefits.  It is said that the obligation that receipt of those benefits gave rise to, namely, the obligation to seek employment, is another matter demonstrating that he was not employed as a paid employee by the Respondent and demonstrating the relationship between the Claimant and the Respondent was that of a volunteer on unpaid work experience.

57      As to the number of days and hours that are shown on the work sheets prepared by Mr Tkacz in respect of work and attendances at the Respondent’s office, the Respondent does not accept that the records prepared and maintained by the Claimant are accurate and says that, in any event, the Claimant was anxious to complete the prescribed number of hours required to fulfil the work criterion of the New South Wales College of Law.

58      The Respondent submits that the fortnightly Centrelink documents that the Claimant lodged with Centrelink after 10 December 2004 entitled “Application for Payment Form” are entirely consistent with him not being engaged in a contract of employment with the Respondent during the relevant periods.  It is noted that there are at least nine Applications for Payment forms completed and lodged between 10 December 2004 and 22 April 2005.  In each case the form required the applicant for payment to state whether or not the applicant had been employed during the relevant period.  In each of those forms, in item 1, the applicant is asked whether any work was done in the relevant period.  The applicant is asked what earnings there were before tax and, in brackets after that question, it is said: “You must tell us even if you have not yet been paid”.  On no occasion did the Claimant declare that he had done work for the Respondent and, on every occasion at the item where the question is asked whether the applicant looked for work during the relevant period and then sought details of employers that had been contacted, he provided the names of two employers on each occasion, none of which names being that of the Respondent.  It is submitted that the context in which those documents were completed by the Claimant is that he is a person who exercised great care in the completion of the forms and that he was very familiar with the Centrelink system for the making of such claims and well aware of relevant matters concerning eligibility for the benefits that were claimed by him.  In that regard, the Respondent says simply that the Claimant cannot “have it both ways”.  That is to say, on the one hand, come to this Court and say that there was a contract for paid employment as between himself and the Respondent during the relevant period and, on the other hand, by signed Declaration, advising Centrelink that he did not work at all during the period.  The Respondent says that the evidence of the Claimant to the effect that he made an officer or officers of Centrelink aware that he had worked for the Respondent but had not been paid during the relevant period although he was entitled to be paid, and that “Centrelink” had advised him to complete the forms in the manner that he did is not to be believed.  It is noted that no person employed in a relevant capacity at Centrelink was called to give evidence on behalf of the Claimant in that regard.  In addition, in connection with the applications for payment to Centrelink, the Respondent notes that each document included a Declaration by the Claimant that, as an applicant for Centrelink benefits, he “. . . was willing to work . . . and was actively looking for work, or doing a Centrelink approved activity . . .”.  That, submits the Respondent, is not correct.  Concerning the reference that Ms Watson signed in support of the Claimant’s application for acceptance into the New South Wales College of Law admission course, the Respondent notes that Ms Watson altered the draft reference which the Claimant had prepared and presented to her for her signature.  The amendments that she made before signing the document which was then sent in that amended form to the New South Wales College of Law expressly stated that the Claimant had been engaged on work experience during his final semester of law in 2004 and that upon completion of his studies in November he had “continued work experience”.  It is said that that is entirely consistent with the relationship being other than that of an employer and a paid employee.

59      The Respondent makes reference to other documents such as various handwritten notes of the Claimant which, the Respondent says, is not evidence of the truth of their contents and, in effect, says that at the time when they were made they were never shown to the Respondent or adopted by the Respondent. 

60      The Respondent says that none of the discussions that took place between the Claimant and Ms Watson were ever directed towards the possibility that the Claimant would be employed as a law clerk as distinct from an Articled Clerk.  Reference is made to the evidence of Ms Watson wherein she said several times that she had not previously and never intended during the material period to employ a law clerk.  In any event, it is submitted by the Respondent that the primary focus of discussions between the parties in connection with the employment by the Respondent of the Claimant was upon the issue of the conviction and the setting aside of the same as a condition precedent to any such employment in a paid capacity.  In that regard, particular reliance is placed by the Respondent upon the conversation which Ms Watson says occurred on 6 December, and the Claimant says occurred on 7 December 2004 where she told him that she would never employ anyone who had a criminal record.

61      As to the Claimant’s general credibility, the Respondent submits, in effect, that much of his evidence was contrived in that many aspects of it were selectively presented in order to show him in a good light and in order to not include matters that had the opposite effect.  It is submitted that that tendency is reflected not only in his oral evidence but in, for example, material that he provided to Centrelink, to the New South Wales Law College and the New South Wales Legal Practitioners Board, in the worksheets that he maintained and in the way that, to Ms Watson and during his evidence, he sought to play down the seriousness of his conviction.

DETERMINATION

62      The Claimant has failed to satisfy me on the balance of probabilities that there was ever any contract of employment between himself and the Respondent whereby the Respondent undertook to pay him any wages or salary or to provide him with any of the benefits or conditions that are the subject of his claim.  I find that the nature of the relationship between the Respondent and the Claimant for the whole of the period that he worked at the office of the Respondent was one whereby it was the intention of the parties that he obtain work experience in a law office, that Ms Watson and other staff would assist him in that endeavour, that he would be provided with direction and guidance and advice, with a room to work in and office equipment and amenities  but that he would not be paid or provided with the conditions and benefits that he has claimed.  While I accept the submission made on behalf of the Claimant to the effect that from about Christmas 2004 onwards he was given an opportunity to commence working with another law firm and that, therefore, he would have been able to continue to gain experience and to accumulate the hours of work that he needed in order to fulfil the work experience component of the New South Wales College of Law admission programme, I am not satisfied that it was because he had been offered and had accepted a position of paid employment with the Respondent in accordance with the MCE Act that he continued to work at the office of the Respondent.  By then he had been told in no uncertain terms by Ms Watson, on 6 December 2004, that she would not employ him because he was a person who had been convicted of a criminal offence.  I find that during the conversation that Ms Watson had with the Claimant after he resigned on 7 December 2004 she did not offer to allow him to re-commence work on the basis that he would be paid either for any of the work that he had already done or for any work that he may do in the future either as a law clerk or as an Articled Clerk or in any other capacity.  I am satisfied that in no other conversation did she ever make him any such offer.

63      There are a number of aspects of the evidence of the Claimant which have contributed to my being unable to accept on the balance of probabilities the truth and accuracy of his evidence to the effect that he was offered and accepted a contract of paid employment.  He was not open and frank with Ms Watson about his conviction when he initially spoke to her or when was later initially offered and accepted the opportunity to gain unpaid work experience at the Respondent’s office.  I am of the opinion that he deliberately minimalised the nature and the seriousness of his conviction.  I am satisfied that he intentionally did not keep Ms Watson informed of the progress of his appeal against his conviction and that it was only as a consequence of Ms Watson making independent inquiries about the conviction and personally attending at the Supreme Court directions hearing and then meeting with Mr McCusker QC that she came to realise the seriousness of it and the significant impediment that, to her, it created to the Claimant gaining Articles of Clerkship and ultimately becoming admitted as a legal practitioner in Western Australia.  I do not accept that the Claimant was advised by Centrelink personnel that in completing his applications for payments of Centrelink benefits it was proper or acceptable for him to, in effect, make a false declaration that he had not performed any work during each of the subject periods.  I find that the declaration that he made in those payment applications that he was willing to work was, in the context, untrue.  The context to which I refer is that he was then engaged full-time in working at the office of the Respondent and, I find, was not then willing to work for any other person.  In fact his evidence is that he was presented with an opportunity during that particular period to work for Gebarski & Associates but declined the offer.  I also find that, in stating in the Centrelink Application for Payment forms that during the relevant period he had contacted two named potential employers for purposes of gaining employment, the Claimant was being intentionally misleading and deceptive because, I find, that he had no intention of leaving his position with the Respondent and I conclude that, if he did make contact with such potential employers, it was for no other reason than to be able to state on the form that he had done so.  The nature of work that he would have been doing had his search for employment with any of those potential employers been successful is, on the face of the documents, judging from the description of the potential employers, not the sort of work that, I find, he had any desire or intention to obtain.  It was his intention, having gained his LLB, to continue to work for the Respondent or Gebaski and Associates and to ultimately obtain employment with the Respondent or Gebaski and Associates as an Articled Clerk in order to become a legal practitioner.

64      I accept as true the evidence of Ms Watson that she has had a long standing attitude towards employment in a legal office of persons who have been convicted of a criminal offence, namely, that she will never employ such a person.  I find that it was never her intention to engage the services of the Claimant as a paid employee unless and until his criminal conviction was set aside.  I am satisfied that, as a result of the manner in which the Claimant described his conviction and expressed his anticipation of success in having the conviction set aside, Ms Watson was initially induced to believe that the offence for which he had been convicted was not particularly serious and that the likelihood of Mr Tkacz being successful in appealing against the conviction was high.  She was naïve in not making sufficient inquiries at the outset as would have resulted in her realising that the conviction was more serious than portrayed by the Claimant and that his chances of having it set aside were not good.  Her decision to not personally undertake such inquiries and to give the Claimant a chance to clear the way for the Claimant being accepted into Articles is consistent with that aspect of her character that Mr Birmingham QC described as “soft”.  I accept the evidence of Ms Watson that she did contemplate offering Articles to the Claimant provided the conviction was set aside by the Full Court.  In that context she was given the impression by the Claimant that he was progressing his appeal in a satisfactory and timely manner.  I find that she never contemplated that he would be offered employment as an Articled Clerk while the conviction remained on his record.  I am satisfied that she contemplated Articles in those circumstances because it was apparent to her that that is what the Claimant so keenly and genuinely wanted. He told her that he particularly wanted to work in a small firm and that he did not like the idea of working in a large firm of solicitors.  I find that Ms Watson realised, when she was present when the Claimant appeared before Justice Wheeler in the Supreme Court in what I understand was a directions hearing and she observed that the Claimant’s progression of the appeal did not appear to be at a stage that Wheeler J expected it to be, that the nature of and the circumstances of the conviction were more serious than she had been led to believe.  As a consequence of that appearance she arranged for the Claimant to meet Mr McCusker QC to obtain from Counsel an opinion as to the likelihood of success in setting aside the conviction.  She attended with Mr Tkacz at Mr McCusker’s chambers and was present when Mr McCusker informed the Claimant that it was his opinion that the appeal would be unsuccessful.  It was then that Ms Watson formed the view that, in the context of the Claimant wishing to obtain Articles of Clerkship, his position was very serious.  She believed that it was unlikely that he would obtain Articles while he remained convicted of the offence in question.  I find that Ms Watson’s attendance with the Claimant when he appeared before Wheeler J and her attendance with him when he met with Mr McCusker arose out of a genuine concern on her part to assist him in whatever way she could to obtain Articles.  I find that at that time she considered him to be a hard worker, a person who was willing to learn, a person who had a very strong desire to become a legal practitioner and to work as a lawyer, and a person whom, in general terms, she trusted.  I find that, as part of her general trusting and generous character, she felt that he needed to be given a chance to achieve those goals and that she was unwilling to refuse to allow him to continue to work at her office, even though he was a convicted person.  In addition, it was not long after the meeting with Mr McCusker QC that the Claimant let Ms Watson know that he was contemplating making application to the New South Wales College of Law to be accepted into the admission programme with a view to becoming admitted in New South Wales.  I find that with the same objective of giving him a chance to achieve his goals, the Claimant was permitted by the Respondent to continue working in the same capacity, in part, so that he could fulfil the work experience criteria of the New South Wales College of Law programme.

65        I am satisfied that at all times Ms Watson held at the forefront what she considered to be her obligations as a legal practitioner to not do anything that would diminish the respectability and integrity of the legal profession in general or of herself or her firm in particular.  In the context of this case, that included setting and maintaining high standards of conduct for herself and for employees of the firm.  Those standards I find included, as a general rule, that no person who had been convicted of a criminal offence would be employed.  I find that she made an exception in the case of Mr Tkacz because of her belief, based on what he had told her, that the offence for which he had been convicted was not particularly serious and, more importantly, that it was most likely that his appeal to have the conviction overturned would be successful.  In that regard, as she conceded herself in evidence, she was naïve.  That naivety, however, is a reflection of her general character.  There was never any relationship other than an unpaid work relationship between the parties.

The Legislation

66      The legislative provisions upon which the Claimant relies are as follows.

67      Section 5(1) of the MCE Act says that the minimum conditions of employment extend to and bind all employees and employers and are taken to be implied, inter alia, in a contract of employment if the contract of employment is not governed by an employer-employee agreement or an award.  It is not alleged in this case that the claimed oral contract of employment was governed by an employer-employee agreement or an award and I find that there was no contract that was so governed.  Section 7 of the MCE Act says that where a minimum condition of employment is implied in a contract it may be enforced under section 83 if the IR Act as if it were a provision of an award, industrial agreement or order.  Other provisions of the MCE Act provide for the entitlement of the employees to be paid minimum rates of pay, to be extended minimum leave conditions and to be paid for such leave.  As I have previously mentioned, in that regard “employee” in the MCE Act means a person who is an employee as defined in the IR Act but does not include a person who is within the class of persons prescribed by Schedule 1 in accordance with regulation 3 of the MCE Regs.  “Employer” has the same meaning in the MCE Act as it has in the IR Act.  “Minimum condition of employment” is defined to mean various requirements which are specified in the MCE Act relating to rates of pay and other conditions.

68      Section 7(1) of the IR Act defines “employee” and “employer”.  “Employee” is defined to mean, inter alia:

(a)   any person employed by an employer to do work for hire or reward including an apprentice of trainee;

(b)   any person whose usual status is that of an employee;

. . .

69      The meaning of “employer”, as defined in s7(1) of the IR Act,  includes, where relevant, “. . . persons, firms, companies and corporations …  employing one or more employees”.  

70      It is fundamental to the application of the provisions of the MCE Act to a relationship between persons that the relationship is one of employer and employee that falls within the categories specified in section 5(1) of the MCE Act.  The Claimant has failed to prove on the balance of probabilities that such a fundamental relationship existed.  For the purposes of the MCE Act I am satisfied that the relationship that existed at all material times between the Claimant and the Respondent is of the type contemplated by the exclusionary proviso contained within the definition of “employee” in the MCE Act, namely, that of a volunteer as prescribed pursuant to regulation 3 and clause 4 of the Schedule to the MCE Regs.  In any event, even if he was not a volunteer as so defined, the Claimant was never in a relationship of employer and employee as defined in the IR Act.

The Quantum Meruit Claim

71      The case outline and particulars of claim of the Claimant state that the quantum meruit claim is based on the assertion that the “The Respondent invoiced clients for work undertaken by the Claimant and freely accepted by the Respondent during the employment period and as a consequence the Respondent was unjustly enriched” and further that “As a consequence of the Respondent’s unjust enrichment and having freely accepted the Claimant’s work, and the Claimant being led to believe he would be paid for the work, the Claimant claims . . .”.  It is thus not the case of the Claimant in regard to the quantum meruit claim that there was between the parties any actual or intended contract of employment whereby the Claimant was to be paid for the work that he did and was to be given the benefit of the other entitlements that he claims.  It is not a case where it is said by the Claimant that there was a mutual but unachieved objective to enter into such a contractual relationship.  It appears that the Claimant is, in effect, submitting that the Respondent knowingly and intentionally received a benefit as a consequence of the work done by the Claimant, that the receipt of that benefit has resulted in the enrichment of the Respondent at the Claimant’s expense and that it would be unjust to allow the Respondent to retain that benefit without payment of restitution in the amount claimed.

72      There is no direct evidence that the Respondent knowingly received or intended to receive any relevant benefit from the work done by the Claimant in respect of which it could be said that the Respondent was thereby enriched.  For there to be enrichment in the context of the claim of the Claimant in this matter it must be established that there was a nett benefit of enrichment that flowed to the Respondent.  The Claimant has not demonstrated that there was such a nett benefit. It is not possible to assess from the evidence before me what the cost to the Respondent may have been in terms of the time expended by the Respondent, by her employed solicitor and by other staff members in instructing and supervising the Claimant and by her providing him with an office and amenities.  There must have been a cost to the Respondent. The evidence satisfies me that the Respondent did not cause her clients to be charged for work done exclusively by the Claimant and that, if that did happen; it was contrary to her intention and to her express instructions to her staff. In any event, the evidence falls far short of satisfying me that, in a relevant sense, any client was charged for work done by the Claimant. It may be that work for which the Respondent charged clients and for which she was paid by clients was work to which the Claimant had contributed.  In my opinion, however, the mere fact of the contribution does not necessarily elevate any such benefit that may have been derived from the work done by the Claimant to a status where it can be said that the Respondent was unjustly enriched.  As I have found, the Claimant was at all times engaged by the Respondent in what can properly be described as a “work experience” or “volunteer” capacity.  It is self evident and it would have been evident at all times to the Claimant that there was the potential for some benefit to flow to the Respondent from the work that he did.  The mere fact of the potential benefit is not something which changes the character of a work experience or volunteer relationship into something more that that, in particular, into an employer/employee relationship or a relationship whereby any benefit that flows to the person with whom the work is being done can only be categorised as a benefit that is an enrichment such that, in the absence of any payment or other consideration flowing to the person doing the work, such enrichment is to be characterised as unjust.

73      In any event, I find that there was flowing to the Claimant at all material times from the Respondent a significant benefit or consideration.  He was being given an opportunity to gain experience working in a small law firm, to work closely with the principal of the firm and the employed solicitor, to be exposed to a reasonable range of work and of having the advantage of ready access to both Ms Watson and Mr Cook and other staff members.  He was extended those benefits in circumstances where he had a conviction for an indictable offence which it was very unlikely at the time he would be successful in having set aside.  As I have found, there was never any offer by Ms Watson to pay Mr Tkacz any wages or to provide him with any of the other benefits that he has claimed.  I find that he never had a reasonable expectation, in all of the circumstances, that he would be paid wages or that he was entitled to receive the other benefits that he has claimed.  I find that the Respondent never acted in a way that could be described as unfair or improper or unconscionable although she acted naively in a number of aspects in her dealings with the Claimant. She never said or did anything that caused him to reasonably believe that he was at any material time entitled to what he has claimed.

74      I find that the claim for unjust enrichment is without foundation and without merit.

RESULT

75      For the above reasons the claim is dismissed.

76      There is liberty to apply in respect of costs.

GN Calder

Industrial Magistrate