When is a Volunteer not a Volunteer?

By Alan J. McDonald

A volunteer is a person who freely offers to take part in an enterprise or undertake a task. Many of our clients consider themselves, or are considered by others, to be volunteers. Whether or not a person is a volunteer has drastic implications for their ability to bring an action for unfair dismissal in the Fair Work Commission. We will here explain when a volunteer is not a volunteer.

The law

In order to claim unfair dismissal, the Fair Work Act 2009 (Cth) requires an employment relationship to have existed prior to the dismissal of the individual from their employment. The Fair Work Commission generally considers that agreements wherein work is performed for payment to constitute legally binding employment agreements. By contrast, the Fair Work Commission considers volunteer agreements to carry a moral rather than a legal consequence due to the altruistic motivations underlying them. Accordingly, volunteers are precluded from claiming unfair dismissal under the Fair Work Act 2009 (Cth).

How it affects you

Your work status as a volunteer or employee will determine whether you are able to bring a claim for unfair dismissal in the Fair Work Commission. We have encountered many situations where our clients believed themselves to be volunteers, when they were in fact employees.

Factors that will determine your work status include:

• whether you have been given documentation of employment;
• whether you are issued with detailed payslips, if any;
• whether payment, if any, is related to the hours you work or the performance of that work;
• how payments made to you, if any, are classified;
• whether you receive reimbursement for expenses; and
• whether you receive any non-monetary benefits such as free accommodation.

How we can help

McDonald Murholme can assist you to determine your work status, and advise you whether to proceed to the Fair Work Commission on this basis. In the event that it is suitable for you to proceed, we can offer you a low cost no-win, no-fee arrangement subject to conditions to assist you in obtaining the outcome you deserve.

If you would like to know more about your work status, or have any other questions in relation to employment law, please contact our office on (03) 9650 4555.