The Fair Work Commission is an independent and impartial body. We don’t take sides in unfair dismissal cases and we can’t give you advice about your case.
We can help show you:
The Fair Work Commission cannot provide legal advice.
As part of the unfair dismissal application process, parties may choose to obtain their own independent legal advice.
There are community legal centres in each state and territory. The National Association of Community Legal Centres Inc (NACLC) legal help page (I need legal help) can help with finding the nearest community legal centre. Please note that the NACLC does not itself offer legal advice.
The Fair Work Commission is currently overseeing a pilot program offering free legal assistance to applicants seeking employment law advice in Melbourne and Sydney. Job Watch and Springvale Monash Legal Service in Melbourne, and Legal Aid NSW and Marrickville Legal Centre in Sydney, have joined with the Fair Work Commission in this pilot program.
Qualified lawyers employed by these organisations will provide their services free of charge to self-represented or unrepresented applicants seeking guidance with unfair dismissal or general protections matters.
The service is facilitated by the Commission and its staff will schedule appointments for clients to meet with a lawyer as follows:
The provision of advice to applicants as part of the Workplace Advice Clinic is the responsibility of each organisation. Advice received as part of this program should in no way be considered or represented as being advice received from the Commission.
All costs associated with providing lawyers for the pilot program will be borne by the organisations.
The pilot program is anticipated to run until the end of 2016.
Clients who make use of this service will meet with the lawyer at the Commission's Melbourne or Sydney premises. This appointment will be booked by Commission staff.
At the appointment, the lawyer may:
It is possible that at the appointment the lawyer may advise clients that their matter is without merit or has little chance of a successful outcome. In this case, the lawyer’s assistance may be limited to helping clients with the Commission’s processes in discontinuing an application if one has already been filed.
The lawyer may also advise clients to re-file their application under an alternative legislative provision, or pursue it in another jurisdiction.
Self-represented or unrepresented applicants are eligible for the free legal assistance.
Self-represented or unrepresented applicants interested in speaking with a lawyer from the Workplace Advice Clinic should contact the Commission on 1300 799 675 to arrange an appointment.
The Commission will arrange an inerpreter for you if needed when you particpate in a conciliation conference, a conference or a hearing before a member.
This is a free service.
The Fair Work Commission can help unrepresented parties to meet with a lawyer before their jurisdiction hearing free of charge.
This program is only available to parties to unfair dismissal matters who have a jurisdiction hearing before the Commission in Melbourne and regional Victoria. Unrepresented parties who are eligible for assistance will be allocated to a law firm before their hearing date. Lawyers participating in the program will provide their services free of charge, also known by law firms as 'pro bono'.
Note: Lawyers participating in the program are employees of external law firms and are not employees of the Fair Work Commission.
Unrepresented parties who are participating in the program will have a one-hour consultation with their allocated law firm before their hearing date.
At the one-hour consultation, the lawyer will advise the party on the issues that have been raised, or are likely to be raised at the hearing. Depending on the time the consultation takes, advice may also be provided on drafting submissions, witness statements and providing relevant documents. This advice may be provided by telephone.
It is still the parties’ responsibility to prepare their outline of submissions, any witness statements and other documents they wish to rely on at the hearing, and parties should be prepared to stand up in the hearing and present their own case.
It is possible that at the consultation the lawyer may advise the party that the application is without merit. In this case, the assistance will be limited to helping the party comply with the Commission’s processes and organising their material.
Unrepresented parties, both applicant (employee) and respondent (employer), are eligible to participate in the program.
Members of unions or employer associations are not eligible and should contact these bodies for help.
Respondents who have existing in-house counsel or a dedicated human resources staff member should make use of their resources.
In 2015, the Fair Work Commission engaged the Centre for Innovative Justice (CIJ) at RMIT to conduct an evaluation of the Victorian pro bono program and to prepare a report on its operation. CIJ has completed that evaluation and has prepared a report detailing its findings.
Under the Fair Work Act 2009, the Minister may declare special rules which apply to small businesses in relation to unfair dismissal. These are contained in the Small Business Fair Dismissal Code.
This code applies to all small business employers in the national workplace relations system. It provides that:
Whether or not an employer has followed the Small Business Fair Dismissal Code may be taken into consideration by a Member of the Commission if a matter goes to a hearing. If the employer has followed the Small Business Fair Dismissal Code they will have grounds to object to an unfair dismissal application, and may lodge what is called a jurisdictional objection.
For more information about jurisdictional objections go to What is the process for unfair dismissal claims?
If the matter goes to a hearing the employer will be required to provide evidence that they complied with the Small Business Fair Dismissal Code, including evidence that a warning had been given to the employee before their dismissal. Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
You can read the Small Business Fair Dismissal Code on our website, but we can’t give you advice about how to follow it, or whether or not an employer followed it.
For information about the Code, and to view an accompanying checklist, visit the Fair Work Ombudsman’s website.