Directions hearings in unpaid wages and entitlements cases

Information about what happens at a directions hearing in your case for unpaid wages and entitlements in the Federal Circuit and Family Court of Australia.

What is a directions hearings?

The first court date is called a directions hearing. 

In some cases an application may be heard (decided) on the first day you go to court. In other cases, the Court may make 'directions' instead. These are orders about what should happen next in your case.

At the first court date, the court could:

decide your case
send you to mediation
make orders for you to prepare evidence for a hearing.

What to take

You should bring a notepad and a few pens so you can write down the orders made by the court. You should also take with you, all the court documents you have filed or been given in the case including the original and two copies of each document, such as:

your application and claim
the Affidavit of Service
your employer's Response
any reports from the Fair Work Ombudsman (if you have already made a complaint)
any draft short minutes of order you have agreed on with your employer
any short minutes of order from previous court appearances or directions hearings for your case.

If no one turns up to represent your employer, the Judge might want you to prove the application was served. To do this, you may need to provide the original Affidavit of Service, if you have not already filed it prior to your directions hearing. The Affidavit of Service is proof that you have served the application.

Decide your case

In some cases, the Judge may want to decide the case on the first court date, or the next court date after you have been to mediation. If both you and your employer are at court, and your employer filed a response to your claim, the Judge may decide that sufficient information has been provided to make a decision.

If the Judge wants to decide the case on the first court date, you may be asked to either give evidence from the witness box or to make submissions about your case. If you are asked to give evidence from the witness box you may be asked to swear or affirm that the evidence is true.

You should bring to court all the evidence you have to support your case. For example, you should bring:

pay slips
emails, text messages or letters between you and your employer
a copy of your award, enterprise agreement or contract of employment
a copy of your application, your claim and your employer's response.

You should be as prepared as possible for your case to be decided at the first court date or a further directions hearing.

For more information about how to prepare for a hearing and what to do at a hearing, see:

What directions the court might make

Directions are orders made by the court about what should happen next in a case. If the Judge dealing with your case believes that your case is not ready to be decided on the first court date, they may make further 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) in the form of a Statement of claim (or 'points of claim') and a Defence. For more information, see Statement of claim and defence.
the parties filing and serving affidavit or statement evidence on each other
whether the case can be decided without a hearing
the date of any further directions hearings
the date of a hearing
whether any witnesses are required to attend for cross-examination.

A further directions hearing usually happens after your case has been to mediation. It might also happen if one party hasn't followed orders made by the Court at a previous directions hearing.

At the first court date or a further directions hearing, the Judge may ask if you and the employer want to have your case 'heard on the papers'. This means that the Judge can decide your case based on all the evidence and other documents that are filed, without the need for a hearing.

You should get legal advice about whether your case could, or should, be heard without a hearing, before you go to court.

How to prepare

You should be prepared for your case to be heard on the first court date.

You might also want to contact the employer (or their representative if they have one) and talk about what the next step should be if the case isn't decided on the first court date. If you both agree about 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.

For examples of minutes of orders, see:

Mediation

The Judge may want you and your employer to attend mediation before the case goes any further. 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.

The mediation could be on the same day as your first court date or could be a later date. The court may also order that you attend mediation even if you already attended mediation arranged by the Fair Work Ombudsman.

For more information, see Mediation.

Preparing your evidence

Evidence is information or things that help to prove or disprove the existence of a fact. For example, a letter from an employer offering you a job at a certain wage could be used as evidence of what you should have been paid. Evidence can be a testimony by a witness, or documents such as letters, emails, text messages, pay slips and time sheets.

Affidavits and witness statements

The Judge in charge of your case may have made orders that:

you prepare affidavits or statements of your witnesses, then file and serve them on (give them to) your employer (the respondent)
your employer prepare affidavits or statements of their witnesses, then file and serve them on you
you prepare affidavits in response to your employer's affidavits, then file and serve them on your employer.

You should work out who you need to be a witness in your case. Witnesses could be:

work colleagues
your manager or managers
anyone else who can give evidence about why or how you were underpaid or not given your correct entitlements.

In small claims cases, evidence from witnesses may be in the form of a statement or an affidavit. An affidavit is a written statement where the contents are sworn or affirmed to be true. You will need to prepare your own affidavit, because you will be your main witness. 

Small claims (claims for $20,000 or less) in the Federal Circuit and Family Court of Australia may be dealt with less formally than other types of cases. The Judge may order you and your employer to prepare written statements instead of affidavits. Unlike affidavits, written statements are not usually sworn or affirmed, but they are signed.   

For more information, see Affidavits and statements.

Subpoenas

If a witness provides an affidavit for your case, it is likely they will also need to give evidence at the hearing. It is a good idea to subpoena your witnesses to make sure they turn up. A subpoena is a court order requiring someone to attend a hearing or produce documents related to the case.

You may already have some of the evidence you need to support your case, such as pay slips and correspondence between you and your employer, but there may be other evidence you need but don't have.

If you don't have all the documents you need to support your case and the Judge does not decide the case on the first court date, you may be able to get an order from the court telling the person who has the documents to produce (give) them to the court. This is a called a 'subpoena'. The documents you subpoena can be used as evidence to support your case.

If you think you will need to subpoena documents, it is a good idea to mention this at the first directions hearing, or at any further directions hearings.

For more information, see Subpoenas.