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Case management standards — employment law

 

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Introduction

These Civil law case management standards — employment law are an excerpt of the Civil law case management standards. They have been prepared to assist Legal Aid Queensland staff and preferred suppliers who practise in employment law.

They represent the minimum work necessary to be undertaken in representing the client. The objective of these standards is to assist officers in achieving an efficient and effective practice.

Compliance with the standards is a prerequisite to ensuring consistency of service delivery to clients, and is therefore an important requirement of undertaking legal aid work.

These case management standards should be read in conjunction with and not in substitution of the rules and practice directions of any courts which may issue from time to time.

Part A — General

A1. Initial interview

The first contact with a client who subsequently obtains a grant of aid for a civil law matter is often via a legal advice interview. The lawyer is to explain the legal process and procedure relating to the client’s matter. Some client information will be obtained at this interview but there is generally insufficient time to obtain detailed instructions.

A2. Grant of aid

Approving authority

The approving authority of a grant of aid is Legal Aid Queensland (LAQ). Generally, the date aid is effective is the date the application is received by LAQ. A grant of aid must exist before any work can be done on the file. The lawyer should check the approval letter to determine the nature and appropriateness of the grant of aid. Where the grant of aid is subject to an initial contribution, the lawyer must not commence work until appropriate arrangements for the payment of the contribution have been made with the client.

Payment

LAQ will pay the lawyer in accordance with LAQ’s set schedule of fees less the initial contribution from the client (where applicable). The schedule of fees includes the scales of fees, rules for payment of accounts and claiming guidelines provided by LAQ. The lawyer is to explain to the client the policy in relation to retrospective contributions and ensure the client signs and returns the Payment of Costs form prior to commencing work on the file.

A3. Management of the client and file

Following approval for a grant of aid, an initial letter enclosing a Client Information Sheet — Annexure A — should be sent to the client by the lawyer. The client must be informed of their obligations and rights in relation to costs payable for work to be done on behalf of the client and any rights to recovery of costs from another party to proceedings.

The lawyer must communicate regularly with the client. The lawyer should copy and forward to the client relevant substantive correspondence sent or received on behalf of the client.

The lawyer must be aware of and comply with the Best practice guidelines for lawyers working with people who have experienced domestic violence. The guidelines are attached as Annexure B.

The lawyer must be aware of and comply with the Best practice guidelines for lawyers providing legal services to Aboriginal and Torres Strait Islander clients. The guidelines are attached as Annexure F.

The lawyer must be aware of and comply with the Guidelines for working with interpreters. The guidelines are attached as Annexure G.

A4. Counsel 

In-house lawyers, when briefing counsel, must comply with the In-house lawyers briefing counsel policy, which can be found on the LAQ intranet (LAQ staff access only). When applicable, briefs to counsel must contain the following:

  1. a logical and chronological index
  2. instructions to counsel
  3.  copy of all relevant material
  4. the brief should be marked "Legal Aid Brief" and include details of the aid available for counsel if the client is represented by an in-house lawyer, or the LAQ pro forma invoice if the client is represented by a private lawyer. 

A5. Completion of matter

The client is to be advised of the outcome of the matter and provided with any relevant documentation before a file is closed. A final letter enclosing a sealed copy of any orders is to be forwarded to the client. If appropriate, the letter should also contain relevant advices with respect to time limitations (including appeal time limits), the consequences of breaches of the orders and any follow-up matters.

The lawyer should notify LAQ of the outcome of a file when submitting their final account for payment and finalising the file.

A6. Initial/final contribution

The lawyer must ensure the initial or final contribution has been paid or arrangements entered into for the payment of the final contribution.

A7. Appeal

The lawyer should consider the appropriateness of any orders which have been made and the potential merit for appeal or judicial review. If appropriate the matter should be discussed with the client including:

  • the time frame for an appeal
  • risk of a less favourable outcome
  • potential liability for costs if unsuccessful
  • effect of appeal on the execution of order, and all time limits must be observed. 

Part D — Case management standards specific to employment law matters

These case management standards specific to employment law must be read in conjunction with Part A — General.

D1. Client interview

At the initial client interview, the lawyer should follow these steps:

1. Administrative and legal requirements

Determine whether an interpreter is needed and use interpreters in accordance with the Legal Aid Queensland (LAQ) Language Services Policy.

  1. Obtain all other parties’ full details, including current address if possible.
  2. Identify any possible conflicts and act in accordance with the Conflicts of Interest Policy.
  3. Explain the lawyer’s role and its limitations.
  4. Explain the client’s role.
  5. Identify all relevant time limits, advise the client about these and act to secure the client’s interests within those time limits.
  6. Obtain authorities and request copies of all documentation relevant to the matter.
  7. Explain the legal processes and procedures specific to unfair dismissal and/or general protection matters. The lawyer must obtain a comprehensive account of the circumstances surrounding the employment matter and the outcomes the client wants. Following this interview the lawyer must prepare an application to the Fair Work Commission with client instructions, which must be signed by the client or the lawyer, as is practicable.

2. Client referrals

Advise the client about other relevant and available legal remedies, eg personal injury, work cover, workplace health and safety complaints, and make appropriate referrals for the client to take action.

3. Other requirements

The lawyer should be:

  1. prepared to work with or through interpreters, support workers and friends or family where appropriate, but be sure to encourage the client to participate to the greatest possible degree
  2. sympathetic to the client’s emotions and concerns and be prepared to divert from the usual process if the client is distressed
  3. familiar with other needs or issues the client may have and offer meaningful advice and referrals as needed
  4. focused in their approach to obtaining sufficient information to properly represent the client, and not allow the interview to become sidetracked.

D2. Witnesses and supporting evidence

The lawyer must obtain signed statements from all relevant witnesses as required and relevant to each stage of the application.

D3. Lodging an application to the Fair Work Commission

When lodging an application to the Fair Work Commission, the application should include details of the sections of the Fair Work Act 2009 (Cth) which have been breached and all relevant supporting statements and material.

If an application has already been lodged with the Fair Work Commission, the lawyer must lodge the relevant Notice of Representative Commencing To Act. If an application has already been lodged with the Fair Work Commission, the lawyer should consider whether the client has adequately presented their case and whether the application needs to be amended to clarify relevant issues, including whether the appropriate respondents have been named and whether the sections breached have been identified.

D4. The Fair Work Commission conciliation conference

The lawyer must follow these steps for a conciliation conference:

  1. Before the conference, discuss the monetary and non-monetary outcomes the client is seeking. Research commission decisions and advise the client about possible outcomes and available remedies including reinstatement, quantum.
  2. Arrange a brief 15 to 30 minute client interview before the conference to confirm the client’s issues, the conciliation conference confidentiality provisions, and remind the client of the conference procedure.
  3. During the conference the lawyer should:
    1. Seek permission to represent the client at the conciliation conference.
    2. Ensure the following issues are addressed:
      • the relevant facts
      • the issue’s impact on the client
      • how the respondent/s conduct contravenes the legislation
      • remedies/possible outcomes.

      Whether the client or the lawyer addresses the issues (outlined at 3(b)) is a matter that will depend upon the professional judgment of the lawyer and the commissioner’s directions. The lawyer should supply details omitted by the client where required.

    3. Ask for a private meeting if the client becomes distressed or otherwise requires legal advice.
    4. If the client starts to interrupt when someone else is speaking, quietly remind them interrupting is not permitted.
    5. At private meetings during the conference, carefully explain to the client the options and proposals discussed during the conference and give appropriate legal advice. The lawyer should also discuss the consequences of reaching or not reaching an agreement on any current and future grant of aid. The client should be encouraged to compromise wherever it is appropriate, but not be forced to reach agreement. Reality test all proposals for agreement with the client including risk of costs if the application proceeds.
    6. Ensure any agreement reached is explained in detail to the client and is fully understood by the client.

D5. Confirm outcome of Fair Work Commission conciliation conference with client

If the parties reach an agreement, the lawyer must write a letter to the client confirming the agreement and to the other party (where appropriate) and enclose a typed copy of the agreement for signature (where relevant). In a General Protections Application, if no agreement is reached, advise the client in writing of time limits for referring an application for arbitration in the Fair Work Commission, or for applying to the Federal Circuit Court of Australia or the Federal Court of Australia (subsequent to a certificate being issued for general protections matters), regardless of whether the client will be legally aided for those proceedings.

D6. Preparing for the Fair Work Commission or Federal Circuit Court of Australia/Federal Court of Australia hearing

Fair Work Commission hearing preparation — unfair dismissal

Before the hearing, the lawyer may seek counsel’s advice about the claim’s prospects of success. The lawyer must have a relevant grant of legal aid. When preparing for a hearing the lawyer should:

  1. Ensure an updated grant of aid is available.
  2. If leave was not previously granted, prepare submissions for leave to appear and obtain the other party’s consent, to be considered at the hearing.
  3. Inform the client in writing of the hearing dates, confirming their need to attend along with their witnesses and steps the lawyer has taken in preparing for trial.
  4. Where relevant, confirm counsel for the hearing by letter, setting out hearing dates and fees payable in line with LAQ’s Scale of Fees.
  5. Issue subpoenas, if necessary, together with conduct monies.
  6. Inform witnesses of hearing dates and ensure they have a copy of their statements and that they are available to give evidence, and arrange their attendance times to minimise waiting time.
  7. Liaise with the other parties or their legal representatives about preparing and filing documents in line with directions.

Federal Circuit Court of Australia/Federal Court of Australia hearing preparation — general protections

In a General Protections Application the lawyer should:

  1. get the client’s instructions on whether to proceed by arbitration
  2. seek consent from the other party to arbitrate, where relevant
  3. if the matter is not being arbitrated, ensure the application is filed in the Federal Circuit Court of Australia (FCCA) or the Federal Court of Australia (Federal Court) within 14 days of the certificate being issued.

In a General Protections Application the lawyer should follow these steps:

  1. Once the Fair Work Commission has issued a certificate, apply for and confirm relevant grants of aid before acting for the client in the FCCA/Federal Court.
  2. File the application in the FCCA or the originating application in the Federal Court (as appropriate) within 14 days of the certificate being issued.
  3. Follow court directions in a timely manner.
  4. Inform the client in writing of all court directions including:
    • 4.1. filing dates
    • 4.2. dates they must attend court, confirming their attendance is required.
  5. If the court directs pleadings (points of claim/statement of claim), prepare them for settling by counsel.
  6. Consider whether expert evidence is appropriate and if so, apply for a grant of aid and organise report/s and obtain other evidence as required.
  7. Take affidavits from all relevant witnesses at the appropriate stage.
  8. Consider whether counsel is required to appear at the mediation and apply for the appropriate grant.
  9. Issue necessary subpoenas, together with conduct monies.
  10. Inform witnesses of hearing dates and ensure they have a copy of their affidavit, that they are available to give evidence and arrange their attendance times to minimise waiting time
  11. Liaise with the other parties or their legal representatives as required.

D7. Briefing counsel for settling points of claim and hearing

The lawyer should retain and brief counsel as soon as practicable. The brief to counsel must include all relevant documentation. Instructions to counsel should set out the hearing dates, the basic premise of the case and list the witnesses to be called, whether points of claim need to be settled, the date for filing, and fees payable in line with LAQ’s Scale of Fees.

D8. Conference with counsel

The lawyer should consider if it is appropriate to hold conferences with counsel. If appropriate arrange them as early as practicable with counsel and the client.

D9. Attending hearings and instructing counsel

The lawyer should ensure all witnesses are available to give evidence and arrange their attendance times to minimise waiting time. The lawyer should take accurate records of the proceedings including witness names, the substance of oral evidence given and hearing times.

If no ruling has been made at the conclusion of the hearing, write to the client advising them of the expected judgment date if known. After a ruling has been made, write to the client informing them of the outcome and provide sealed copies of orders.

Ensure all accounts are finalised in a timely manner.

D10. Appeals

After final judgment has been delivered by the court or commission, write to the client informing them of the orders made and reasons for judgment, supplying copies of both sets of documents if they are available. Consider whether an appeal is appropriate and advise the client on the merits of an appeal and relevant time limits.

D11. Enforcement

Following a resolution by agreement or by judgment, the lawyer must advise the client of enforcement options, prospects of success and merits of any enforcement action.

Where appropriate the lawyer should help the client to apply for legal aid to enforce the agreement/judgment taking into account the respondent’s assets and any enforcement action’s prospects of success.

D12. General matters

At each stage of the application the lawyer must advise the client of their claim’s merits and prospects of success and comply with all relevant LAQ policies outlined in the Grants Policy Manual.

At each stage of the application the lawyer must help the client to apply for all relevant grants of aid where appropriate.

D13. Legal costs and Legal Aid Queensland Grants Policy

The lawyer must comply with relevant legislative requirements regarding legal costs. The lawyer must explain to the client the client’s liability for costs in the various jurisdictions. The lawyer must explain to the client, and ensure they comply with, LAQ’s grants policies regarding payment of costs, such as initial contributions and retrospective contributions, and their obligation to pay costs under any costs agreement.

Annexures

Contact

Coordinator, Preferred Supplier Strategy
Legal Aid Queensland
GPO Box 2449 Brisbane QLD 4001
psupp.coordinator@legalaid.qld.gov.au
Phone: 07 3247 0380
Fax: 07 3238 3340

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