Employment disputes as small claims in the Federal courts

Here is an extract from a recent decision of the Federal Circuit Court dealing with a dispute between an employee and former employer about entitlements, which the parties were content to have dealt with as a small claim. This procedure is  essentially the same when an applicant caps a general protections claim at $20,000.

“Small Claims Jurisdiction

Neither party has argued that this matter should not be determined in the Court’s small claims jurisdiction.  The Court proceeds on that basis.

Section 548 of the FW Act provides:

(1)            Proceedings are to be dealt with as small claims proceedings under this section if:

(a)            a person applies for an order (other than a pecuniary penalty order) under Division 2 from a Magistrates court or the Federal Circuit Court; and

(b)            the order relates to an amount referred to in subsection (1A); and

(c)             the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.

(1A)  The amounts are as follows:

(a)            an amount that an employer was required to pay to, or on behalf of, an employee:

(i)     under this Act or a fair work instrument; or

(ii)    because of a safety net contractual entitlement; or

(iii)  because of an entitlement of the employee arising under subsection 542(1);

(b)            an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.

Limits on award

(2)            In small claims proceedings, the court may not award more than:

(a)  $20,000; or

(b)            if a higher amount is prescribed by the regulations–that higher amount.

Procedure

(3)            In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:

(a)            in an informal manner; and

(b)            without regard to legal forms and technicalities.

(4)            At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.

Legal representation

(5)            A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.

Section 548(3) of the FW Act dispenses with many of the usual complexities that would arise in litigation (such as evidentiary objections) and provides the Court with considerable flexibility when determining what weight to afford to the evidence before it.

This should not be seen as suggesting that the Court will accept the most whimsical of evidence without reason and reject probative evidence out of hand. Rather, a reasoned approach is taken, bearing in mind that the parties to these proceedings are usually unrepresented.”

 

YAMMOUNI v THEREXA PTY LTD ATF THE HEATH FAMILY TRUST TRADING AS ACTIVATE PHYSIOTHERAPY & CLINICAL PILATES [2020] FCCA 1170 delivered 15 May 2020 per  Kendall J