Going to the Federal Circuit and Family Court

You might want to contact your employer (or their representative if they have one) and talk about what the next step should be. If you both agree what should happen, you can prepare 'short minutes of orders' to hand up in court. Short minutes of orders are court orders that list the things the parties need to do before the case is next back in court.

Short minutes of order might include orders about:

• arranging mediation
• finalising the case if an agreement was reached at mediation
• the parties filing and serving pleadings (more details about their case) on each other
• the parties filing and serving evidence on each other
• the date of any further directions hearings
• the date of a hearing.

Samples: 

• Sample - short Minutes of Order - First directions hearing
• Sample - short Minutes of Order - Further directions hearing

Usually at the first directions hearing, the Judge will want the parties to go to mediation. Mediation is an informal way of solving a problem and is similar to conciliation. The mediator helps people understand the problem, talk to each other and come up with solutions.

For more information about mediation, see Mediation, below.

If you need an interpreter at court, you should contact the Court Registry at least one week before yoru court date. The Registry may be able to provide an interpreter for you.

If you need any other special arrangements, you should contact the registry at least one week before your court date.

For more information, see Interpreter policy and guidelines and Court support on the Federal Circuit and Family Court of Australia website.

Directions hearings are held in a courtroom at the Federal Circuit and Family Court of Australia. When you file the application, the date, time and place of the first directions hearing will be written by the Court on your application and the copies you file. The details of directions hearings are also published on the Daily court lists page on the Federal Circuit and Family Court of Australia website, usually the day before.

You should take along a notepad and a few pens so you can write down the orders made by the court. You should take all the court documents you have filed or been given in the case, such as:

• your application and claim
• the Affidavit of Service
• your employer's response
• any short minutes of orders from previous directions hearings.

If no one turns up to represent your employer, the Judge might want you to prove the application was served. The Affidavit of Service is proof that you have served the application.

It is a good idea to get to court as early as possible. You should be there at least half an hour before the directions hearing is scheduled to start. Wait until your courtroom opens. When it does, go in and see if the Judge's Associate (assistant) is there.

Tell the Associate your name. The Associate will then check the court list and note that you are there. The court list is a numbered list of all the cases that will be heard by the Judge on that day. After you have spoken to the Associate, sit down in the courtroom and wait until your name and case is called. The Associate will check to see if anyone is there for your employer. 

Once your case is called, you and your employer (or their representative) will go and sit at the 'bar table'. The bar table is the table in front of the Judge where the lawyers usually sit. You will have to tell the Judge who you are. You should stand when talking to the Judge and you should call the Judge 'your honour'.

The Judge will want to know what you and your employer want to do about the case. If you had discussions with your employer or their representative before court, you can tell the Judge what you agreed. Usually, the Judge will want you to attend mediation, even if you've already been to conciliation at Fair Work Commission (the Commission).

Once you and your employer have told the Judge what you would like to happen next, the Judge will tell you what their orders are. The orders will be numbered. The orders at a first directions hearing may include orders about:

• when and how the parties should attend mediation
• when the case will be back in court for another directions hearing
• serving and filing points of claim or a Statement of Claim
• serving and filing evidence
• a date for a further directions hearing
• a date for a hearing
• how much notice either party should give the court and the other party to bring the case back to court earlier.

At the first directions hearing, the orders made usually include an order about you and your employer contacting the registry to arrange a mediation date. You can contact the registry to organise a date, time and place available for mediation. Make sure it's a date that you are able to attend.

• You should contact the registry where you filed the application. To find the contact details of the registry, see:
• Court locations on the Federal Circuit and Family Court of Australia website, or

Commission offices on the Fair Work Commission website

When you contacted the registry to arrange mediation you would have been told where it was being held. If you are unsure, you should contact the registry again

Mediation is flexible and how it is run will depend on you, your employer, the circumstances of your case and the mediator. The usual steps that are taken in most mediations are:

1. The mediator will tell you what will happen in the mediation.

The mediator will explain the process of the mediation to you and your employer. If either or both of you have lawyers, they will also be present. The mediator will ask you to agree to some ground rules, for example that only one person speaks at a time and that everyone is polite and respectful.

2. Each party talks about the issues and how to resolve them.

The mediator will ask you and your employer to tell your side of the story and explain what you think the issues between you are. In a general protections claim, the issues might include the reason why you were sacked and what can be done to solve the problem. Usually you will tell your side of the story first. Your employer will then have their turn .

3. The mediator will talk to each of you in private.

The mediator will usually have a private session with you and a private session with your employer after you have each summarised your side of the story. During the private session you may be able to tell the mediator what you think would be a reasonable settlement. If you give the mediator permission, the mediator may tell your employer about any offer you want to make.

You will be there and so will the mediator. If your employer is an individual, they will be there in person. If your employer is a company, an officer of the company will be there (for example a director) as well as their lawyer. If you have a lawyer, your lawyer will be there.

It may be possible for you to bring a support person with you to the mediation. You should check with the Registrar before bringing anyone with you to the mediation.

Mediation is confidential. This means that whatever you raise in mediation can generally not be raised outside of mediation.

You should be aware that if you give information to your employer during the mediation, although they cannot give evidence about what you said during the mediation (as this is confidential), there is nothing to stop them using this information if your matter goes to court later and they can find the evidence in another way. If you are concerned about giving information that can weaken your case, you should get leg​al advice​.

To prepare for mediation, you should:

• learn about the mediation process
• think about the issues
• work out what you want
• understand your legal rights
• think about the options for ending the dispute
• understand your emotions
• plan how to communicate
• find out about interpreters
• gather documents and information.

For more information, see Step by step guide – Preparing for mediation.

Deed of release and settlement

If you and your employer reach an agreement, the terms of the agreement can be put in writing. Any agreement can be put into a 'deed of release and settlement', which has the details of the agreement. You should get legal advice before signing a deed of release and settlement.

Sample: Sample deed of release 

Consent Orders

If an agreement is reached at settlement you can also file 'consent orders' with the Court. Consent orders are orders agreed between the parties that can be made by the Court to finalise the case. Consent orders can include details about:

• when any payments need to be made
• what the parties can do if one side breaks the agreement
• the applicant filing a Notice of Discontinuance.

Consent orders are a good idea because if your employer doesn't do what they agreed to do you may be able to enforce the orders.

If you and your employer don't file consent orders you should make sure your employer does what they agreed to do before you file a Notice of Discontinuance.

 Any amounts payable to you in settlement of the case will usually be taxable. That means you will still have to pay tax on the amount you receive.

If you and your employer can't settle your case at mediation, the case will go back to court for further directions. A date for a further directions hearing may have been set at the first directions hearing. If no date was set, you can contact the Court to have your case listed again

For more information, see Directions hearings, in Going to the Federal Circuit and Family Court of Australia.

Before the hearing you should start preparing your case. The Court will make directions telling you:

• the date of the hearing
  
• what you must do before the hearing (for example, file witness statements by a certain date).

For more information see Step by step guide - Preparing for the Hearing

Evidence is information or things that help to prove or disprove the existence of a fact. For example, a letter from an employer to an employee telling them they will not be given any more shifts could be used as evidence that the employee was dismissed. Evidence can be testimony by a witness, or documents such as emails, text messages, letters and recordings.

For more information, see Evidence - General protections - Federal Circuit and Family Court of Australia.

Before you go to the hearing, you need to understand how a hearing works and plan how you are going to present your case.

For more information see Step by step guide - Presenting your case at the Hearing

This section has useful information to help you present your case at the hearing.

For more information see Arguing your case. 

If the Judge finds that you proved your case, the Judge must then decide what orders to make. The Judge may order that:.

• Your employer pay compensation
• Your employer pay a penalty
• Your employer pay your costs
• You be given your job back

Your employer pays compensation

If you suffered a loss as a result of being sacked, your employer may be ordered to pay you compensation. Loss could include:

• the amount of money you would have been paid, between the time you stopped work and when you started a new job
• any compulsory superannuation you would have received
• compensation for any non-monetary loss you suffered (such as humiliation or distress).

During the hearing you must provide evidence of any loss you suffered. This could include:

• evidence about the steps you took to find a new job
• your pay before you were sacked and your pay in any new job you started
• any non-financial impact the sacking had on you (for example stress caused).

Your employer pays a penalty

If the Judge finds that your employer broke laws about general protections, they could receive a penalty. The maximum penalty the Judge can order is $18,780 (or $93,900 if your employer is a company) (as at 1 July 2023). If the Judge makes an order about your employer paying a penalty, they can order that the penalty be paid to you.

The Judge generally will not order that the penalty be paid to you if it would result in you receiving a 'windfall'. Windfall means that you would be in a better position than you would have been if you hadn't been dismissed.

Your employer pays your costs

The losing side is not usually ordered to pay the legal costs of the winning side in general protections cases. However, costs may be ordered in very limited circumstances. For more information, see Costs, below.

You be given your job back

The Judge may order that you be reinstated. This means that you will get your job back or be given another job elsewhere in the company. The Judge may also order that you be paid for the wages you would have earned during the time you did not work.

If the Judge finds that you didn't prove your case, the orders you asked for will not be made. That means you won't be paid any compensation and your employer won't be given a penalty.

If the Judge decided against you, it may be possible to appeal. For more information, see Appeals. You should get legal advice before appealing.

If the Judge finds that you didn't prove your case, your employer may ask for orders that you pay their legal costs. For more information, see Costs, below.