Work experience/ internship or employment?

The Fair Work Commission recently dealt with an unfair dismissal case brought by a young law graduate who had been hired as an intern or work experience graduate by  a law firm. Ultimately the Commission held that the intern was not an employee and thus did not have access to the unfair dismissal jurisdiction.

In determining the issue of whether the applicant was an employee the Commissioner looked at the following issues.

  • The reasons for the arrangements: the more productive the work being undertaken (as opposed to just observation, learning and skill development), the more likely it is that a person is an employee.
  • The length of the internship: the longer the period of the arrangement, the more likely the person will be an employee.
  • The significance of the internship  to the business: if the person is doing work that would otherwise be done by an employee, or the work is necessary for the business, it is more likely the person is an employee.
  • The duties of the applicant: if the person is not expected or required to attend work or undertake productive activities, they are less likely to be an employee.
  • The nature of the benefit of the services provided by the applicant if the business is getting the main benefit from the work of the person, it is more likely they are an employee

Mitchell Klievens v Cappello Rowe Lawyers (2017) FWC 5126 per Johns C