59. The Respondent had done the Perjury at the Commission; and

60. The Applicant submits that to maintain the Commission's integrity; the Commissioner must use her discretionary powers and refer the Perjury by the Respondent to appropriate forums."

"86. In response to Paragraphs 115, 115.1 and 115.2 of the Respondent's closing submissions, the Respondent submits that for the purposes of the Uniform Law, the Applicant was an 'other person' working under supervision, in a law practice.

87. The Respondent intentionally misleads the Commission because the Commission has no definition of other persons, and [one of the respondent's two representatives] purposefully did not define other persons as per Profession Law; and

i. To assist the Commissioner for better understanding, the other person is defined in Section 12 of the Profession Law

ii. Section 12 Entitlement of certain persons to use certain titles, and presumptions with respect to other persons

_(1) Titles This section applies to the following titles - _

(a) lawyer, legal practitioner, barrister, solicitor, attorney, counsel or proctor;

(b) Senior Counsel, Queen's Counsel, King's Counsel, Her Majesty's Counsel or His Majesty's Counsel;

(c) any other title specified in the Uniform Rules for the purposes of this section.

iii. The Applicant submits that the Applicant uses the title - lawyer; and

iv. The Respondent has not provided any definition or evidence in relation to the other person to the Commission.

v. The Applicant submits that the Respondent and the Respondent's solicitor is misleading the Commission by not disclosing the true facts and the legislation. (Emphasis added)"

(Italics, bold and words "(Emphasis added)" in original)

• [78] The respondent drew attention to the wording of the relevant section Legal Profession Uniform Law (rather than the selective quoting of the section in the applicant's submissions). Section 6 (Definitions) of the Legal Profession Uniform Law does not presuppose that supervised legal practice can be obtained only within an employee/employer relationship; and the applicant's submissions are otherwise incoherent in suggesting some relevant interaction with s.12 of the Legal Profession Uniform Law as to the meaning of "other person" within the meaning of s.6. I take notice of the fact that supervision can be undertaken with a solicitor working under legal supervision in a (non-employee) volunteer or secondee capacity - and, in some circumstances, somewhat controversially, under intern arrangements, such that the volunteer, secondee or intern may obtain requisite supervision. Section 6 of the Legal Profession Uniform Law relevantly reads:

"supervised legal practice means legal practice by a person who is an Australian legal practitioner -

(a) as an employee of, or other person working under supervision in, a law practice, where -

(i) at least one legal practitioner associate of the law practice is an authorised principal; and

(ii) the person engages in legal practice under the supervision of an authorised principal referred to in subparagraph (i); or

(b) as a principal of a law practice (other than a community legal service), where the person engages in legal practice under the supervision of an authorised principal of the law practice; or

(c) as a corporate legal practitioner or government legal practitioner, where the person engages in legal practice under the supervision of a person who holds, or is eligible to hold but is exempted from holding, an Australian practising certificate authorising the holder to supervise legal practice by others; or

(d) in a capacity or in circumstances specified in the Uniform Rules for the purposes of this definition;"

• [79] The applicant also contended that not only was he an employee of the respondent, but that he was an employee whose employment was covered by the Legal Services Award as a Level 6 Law Clerk. The applicant's submissions in such respects were:

"9. As per cl 4.7 of the Award, the Applicant is performing the duties of the Law Clerk.

10. Law Clerk is defined in cls 2, A.7 of the Award.

11. The Applicant was performing the work of a Law Clerk for the Respondent as per cls 2, A.7 of the Award.

• [80] The applicant's submissions in such respects were misconceived, because the Legal Services Award does not cover or apply to persons who are employed as solicitors admitted to practice. In any event, it is unclear why these submissions were advanced about award coverage, because the remuneration received by the applicant would not raise any high income threshold issues.

Conclusion as to the threshold jurisdictional point

• [81] An applicant who has been dismissed may apply to the Commission for an unfair dismissal remedy pursuant to s.394 of the Act. It is, however, a condition-precedent to jurisdiction that the applicant was an employee of the respondent to the application. Considering the matters outlined above, I have concluded the applicant was not an employee of the respondent. I would dismiss the applicant's application for an unfair dismissal remedy based on my acceptance of the respondent's jurisdictional objection that the applicant was not an employee.

• [82] If I am wrong in my conclusion that the applicant was not an employee of the respondent, I would, in the alternative, dismiss the applicant's application for an unfair dismissal remedy having regard to the provisions of the Code. In the consideration that follows, I proceed on the basis that the applicant was an employee of the respondent - albeit contrary to my finding the applicant was not an employee. I also proceed on the basis that the termination of the relationship constituted a dismissal from employment - again contrary to my finding the applicant was not an employee and, thereby, dismissal from employment did not arise in the circumstances of this case.

• [83] The applicant remonstrated about the respondent's Code-related objection to his application, on grounds including that a Code-related objection was not identified in the respondent's initial Form F3 - Employer response to unfair dismissal application (rather, it may be noted, the respondent's objection to the application in its Form F3 focussed on its non-employee jurisdictional objection). The applicant's objections to reliance on the Code in such respects are rejected. By s.396 of the Act, the Commission must decide certain matters relating to an application for an unfair dismissal remedy before considering the merits of the application - and this is so regardless, for example, of whether a Code-related objection is identified in a respondent's Form F3. That is, in mandatory language, s.396 of the Act reads:

"396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy."

• [84] If the termination of the relationship between the applicant and the respondent amounted to dismissal from employment, that termination was effected on the initiative of Mr Pall, without a period of notice or a payment in lieu of notice. Hence, the summary dismissal provisions of the Code arise for consideration given the firm was a small business when the relationship terminated. The Code provides as follows, as to summary dismissal:

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report. ...".

• [85] The applicant initially contended he was dismissed on 28 August 2020. In closing submissions, the applicant submitted, for the first time, that he was dismissed from employment with the respondent "three times" two days earlier, namely on 26 August 2020. The applicant identified matters in the following way in his submissions:

"The Applicant submits, on 26 August 2020, the Respondent [sic; Mr Pall] verbally dismissed the Applicant on three occasions,

a. about 3:35 pm (telephone call - The Applicant was working from Home);

b. At or about 5:00 pm (meeting at office suite [address]); and

c. At or about 5:20 pm (at the main entrance/exit of the office [address]).

On all the above three occasions, the Respondent did not provide any reasons, written warnings, support person, and termination letter to the Applicant for the dismissal."

• [86] Here, proceeding on the basis there was a dismissal from employment, any dismissal cannot have occurred on three occasions. That is, a contract of employment cannot be terminated twice: Melbourne Stadiums Ltd v Sautner[3] (let alone, as the applicant contended, on three discrete occasions on the same day). The applicant's proposition that he was dismissed by the respondent three times on 26 August 2020 is rejected.

• [87] On 27 August 2020, Mr Pall sent an email to the applicant seeking the immediate return of certain files in possession of the applicant given he had been working from home, and the keys and office access card for the respondent's premises. Mr Pall also advised the applicant's conduct was under investigation, that he was "unable to supervise" the applicant based on his volatile conduct, and unable to provide instructions to the applicant on case matters. Reference was made to other matters, including advice from Mr Pall that he was currently in discussion with the Office of the Legal Services Commissioner regarding the applicant's engagement. In such respects, Mr Pall wrote "If you wish you can contact them also, as I am certain that the engagement can be ended in a much better way and by following a much more professional approach." Mr Pall also cautioned the applicant if he failed to return office case files by the close of business on 27 August 2020, he would be making a complaint about the applicant to the Office of the Legal Services Commissioner.

• [88] Contrary to the applicant's submissions that he had been dismissed three times on 26 August 2020, the applicant wrote to Mr Pall (using the respondent's own letterhead) on 28 August 2020, being correspondence to which I have referred earlier with the subject line "Re: Exploitation of Young Lawyer Prateek Patial", in terms presupposing that, as of 28 August 2020, the relationship had not (yet) been terminated by Mr Pall (albeit making mixed assertions about being "a current employee" and, on the other hand, referring to payment of invoices under an "engagement contract"):

• "1. ... I am a current employee of Kailash Lawyers and Consultants ... and working as a lawyer in the firm."

• "61. ... I request you Amit [Pall] to reinstate my access details or share the passwords for the Leap Login and Commonwealth Courts Portal unless you terminate my engagement contract."

• "63. I request you to clear my outstanding invoices and overdue payments before terminating my engagement contract."

• [89] The circumstances immediately preceding the termination of the relationship between the applicant and the respondent have been dealt with earlier in the decision. The applicant conducted himself in, I find, an egregiously unacceptable manner in refusing to leave the respondent's premises on 26 August 2020 notwithstanding repeated advice or instruction from Mr Pall that he should leave. The police had to become involved in escorting the applicant from the respondent's premises approximately two hours later, around 7.30pm. I do not accept the applicant's contention that he had remained on the premises effectively to provide his own account to the police. Had the applicant left the respondent's premises when he was asked, told or instructed by Mr Pall to do so, there would have been no cause for Mr Pall to contact the police in the first place. As noted earlier, the applicant chose instead to busy himself on a computer until the police arrived.

• [90] I think it may be accepted that the relationship was irreparably damaged in connection with the police involvement on the night of 26 August 2020. Regardless, the relationship seemingly continued without formal termination for a short period of time - at least as indicated in the correspondence that was exchanged between the parties over about the next day-and-a-half. Following upon the applicant's outright refusal to leave the respondent's premises on 26 August 2020 when instructed to do so by Mr Pall, the applicant was next instructed by Mr Pall to return to the office items including the respondent's clients' files by close of business on 27 August 2020 - being instructions from a person who was the principal of the firm and the applicant's legal supervisor. The applicant did not return the files. What happened thereafter, on 28 August 2020, was that the relationship between the applicant and the respondent was unambiguously summarily terminated by Mr Pall. If the circumstances of the termination of the relationship constituted a dismissal, then the termination officially occurred, I find, on 28 August 2020. That is, in correspondence dated 28 August 2020, Mr Pall advised the applicant: "Your engagement is terminated with immediate effect."

• [91] Drawing from the principles concerning the Code in authorities including Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo[4] and Ryman v Thrash Pty Ltd[5], the termination of the relationship between the applicant and the respondent - if it constituted a dismissal from employment - was, I find, Code-compliant. To return to the text of the Code, the summary dismissal provisions provide that "It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. ...". The applicant's purposeful actions objectively gave cause for Mr Pall's belief on reasonable grounds that the applicant's conduct was sufficiently serious to justify immediate termination of the relationship. While there was initial reference to an investigation being undertaken by Mr Pall, matters as to the failure by the applicant to leave the respondent's premises and the failure to return files did not require investigation. It cannot be accepted that the applicant could not have returned the files of the respondent's clients due to a shortness of time allowed by Mr Pall, as the applicant appeared to suggest. Rather, the applicant retained the files of the respondent's clients for his own purposes. The applicant's post-termination correspondence dated 31 August 2020 made this clear, in that the applicant wrote that once Mr Pall had attended to various demands and made a payment of $93,736.58 (including for post-termination invoicing for matters said to include work undertaken as IT services and furniture assembly/removal) "only then" would he "handover the office items ... such as case files ...". Separately, the submissions indicated that, months after 28 August 2020, the applicant had still not returned files of the respondent's clients.

• [92] Given my findings concerning the respondent's jurisdictional objection and/or the Code, an order dismissing the applicant's application for an unfair dismissal remedy issues in conjunction with these reasons. The proceedings are concluded.

S Christie for the respondent (with T Traill (30 March 2021) and T Plummer (20 April and 20 May 2021)).

[1] Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario [2011] FWAFB 8307.

[2] Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats [2020] FWCFB 1698.

[3] Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at 112.

[4] John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo [2012] FWAFB 1359.

[5] Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automative Services [2015] FWCFB 5264.

Printed by authority of the Commonwealth Government Printer