Main Content Anchor

Unfair dismissals

Assessment criteria

For legal aid to be granted for an applicant to be represented in proceedings for unfair dismissal through the Fair Work Commission, the following tests must be satisfied:

Documentary requirements

Applications received from client

Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:

  • a completed and signed Legal Aid Queensland application form
  • proof of income and assets (refer to the means test)
  • a copy of the unfair dismissal application lodged with the Fair Work Commission (if applicable)

Application received from preferred supplier or in-house practitioner

Practitioners seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system with the employment law - unfair dismissal information request and attach:

  • a copy of the unfair dismissal application lodged with the Fair Work Commission (if applicable)

The following documents are retained on file but may be requested by Legal Aid Queensland:

Interpretation

National System Employee

For a full definition for a national system employee and employer, please refer to section 13 and 14 of the Fair Work Act 2009 (Cth).

For the purposes of this guideline Legal Aid Queensland may consider an applicant for aid to be a national system employee if they are employed or usually employed:

  • by a constitutional corporation (most businesses that are companies are constitutional corporations, however, charitable or not for profit organisations may not be a constitutional corporation)
  • by the Commonwealth or a Commonwealth authority
  • as:
    • a flight crew officer
    • a maritime employee
    • a waterside worker

For the purposes of this guideline Legal Aid Queensland does not consider an applicant for aid to be a national system employee if they are employed or usually employed by the State or local government.

Minimum employment period requirements

An employee is eligible to make an application for unfair dismissal remedy if they have completed the minimum employment period of:

  • one year - where the employer employs fewer than 15 employees (a small business employer)
  • six months - where the employer employs 15 or more employees.

The time limits for lodgement have been/can be met

For legal aid to be granted, the applicant must have either lodged their application for unfair dismissal or made an application for legal aid with enough time for an application for unfair dismissal to be filed within the time limits for lodgement.

The time limits for lodgement are:

  • Where an applicant was dismissed on or before 31 December 2012, the application must be lodged within 14 days after the dismissal takes effect.
  • Where an applicant was dismissed on or after 1 January 2013, the application must be lodged within 21 days after the dismissal takes effect.

High income threshold

For legal aid to be granted for employment matters, the applicant must be earning less than the high income threshold under the Fair Work Act, 2009. The high income threshold can be viewed at the Fair Work Commission website.

Special circumstances of the applicant priority

For the purposes of this guideline Legal Aid Queensland may consider an applicant to be disadvantaged if they:

  • have a language or literacy problem
  • have an intellectual, psychiatric or physical disability
  • live in a remote locality making it difficult to obtain legal assistance
  • would otherwise be at risk of social exclusion, or
  • are a child.

In relation to employment matters, those at risk of social exclusion are identified as:

  • Applicants with family responsibilities (pregnant women, parents)
  • Youth applicants particularly those in casual employment or who are serving apprenticeships.

Allocation of a solicitor

All employment matters are to be allocated to an employment lawyer within the civil justice team of Legal Aid Queensland.

Grant(s) of aid

The initial grants of aid available are as follows:

  • CEM1 - solicitor to prepare and lodge an application with the Fair Work Commission (this grant of aid is only available where an application for unfair dismissal has not been filed).
  • CEM2 - solicitor to attend prepare for and attend on conciliation conference, respond to jurisdictional issues (if raised by employer) and draft an agreement reached at conciliation conference.

Extension(s) of aid

Solicitor

The following extensions of aid are available for solicitors:

  • CEM4 - prepare for and attend on day 1 hearing at the Fair Work Commission
  • CEM6 - attend an additional day of hearing at the Fair Work Commission

Counsel

The following extensions of aid are available for counsel:

  • CEM3 – provide opinion on unfair dismissal matter
  • CEM5 - prepare for and attend on day 1 at the Fair Work commission
  • CEM7 - attend an additional day of hearing at the Fair Work Commission

Retrospective contributions

Grants of legal assistance for these types of matters may be approved on the condition that the applicant will pay a retrospective contribution.

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).

Related links and information
Back to top