Legal action in the small claims court
Taking legal action in the small claims court may be an option when a workplace dispute can’t be resolved at the workplace level.
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You can take your own legal action without a lawyer to resolve certain workplace disputes at the small claims court. You can represent yourself.
- 'applicant' (the person who applies to the court to have the matter heard) is the employee
- 'respondent' (the person responding to the application) is the employer.
At the small claims court, you can resolve:
- claims about underpayments up to $100,000
- certain disputes about casual conversion.
The entitlements being claimed need to be covered by Australian workplace laws. This can include minimum wages, penalties, allowances, leave and other entitlements from the National Employment Standards, an award or enterprise agreement.
The underpayment needs to have occurred within the statutory time limit, which is usually 6 years from when the entitlement was meant to be paid.
When making a small claims application, you’ll need to make sure that you have evidence to back up your claim. Evidence for an underpayment claim could include:
- pay slips
- pay rate calculations
- hours recorded in a diary
- rosters or timesheets
- any other documents to back up your underpayment claim.
Next, you’ll need to file a small claims application, including your evidence.
Then, you’ll give (or ‘serve’) the respondent copies of all of the court papers (including the evidence) that the court stamped (or ‘sealed’). This is so the respondent knows about the court date well ahead of time and can prepare a response.
Best practice tip
You can make a small claims application any time from when the entitlement was due until 6 years after that time. It’s best to make a small claims application as soon as possible. As time passes, it can become harder for you to contact your employer and gather the required evidence.
In the small claims court, your claim is considered by a:
- judge with no jury, or
- a registrar of the court in some cases.
The judge or registrar can make a legally binding decision based on the evidence presented. This is called a 'court order'.
The benefits of making a small claims application include that it's:
- faster and more informal than other court proceedings
- usually less expensive as lawyers aren't normally needed.
If you've already lodged an enquiry with us and you're thinking of taking your own legal action, let us know as soon as possible.
The small claims process in the Federal Circuit and Family Court of Australia and in state or territory magistrates and local courts can deal with claims about the payment of money. For example, the claim could be about being underpaid your:
- base pay rate
- leave entitlements.
Claims can also be about unlawful deductions from your pay.
The claim needs to be:
- for $100,000 or less (the court can’t award more than this amount excluding any interest that may also be awarded)
- for entitlements covered by Australian workplace laws (including the National Employment Standards, award or enterprise agreement)
- made within the statutory time limit (usually 6 years from when the entitlement was meant to be paid).
In some cases, the court may allow the successful applicant to recover any court filing fees paid from the respondent.
Example: Employee taking a small claim to court
Breeana made a small claims application to the Federal Circuit and Family Court of Australia Court when she and her employer couldn’t agree she had been underpaid. She read our Small claims guide for employers and employees and saw that she met the criteria for making a small claims application. Breeana thought she needed support so she asked her cousin, who was good with calculations and documents, to help her.
Breeana (the applicant) and her cousin prepared a folder of evidence. They gathered the information below to back up Breeana’s underpayment claim of $3,000:
- pay slips
- hours worked that Breeana had recorded on the Record My Hours app
- other documents.
Breeana filed the court forms and supporting documents with the court.
Then she gave (served) copies of the stamped court papers to her employer (the respondent).
On the hearing date, her employer didn’t go to court. Breeana was accompanied by her cousin and answered the judge’s questions and discussed the evidence.
The judge considered the evidence Breeana provided and found in Breeana’s favour. The employer was ordered to backpay Breeana the underpaid amount by a specified date.
As the judge’s decision is legally binding, Breeana’s employer had to pay the amounts the court ordered by the due date.
Example: Employer responding to action in the small claims court
Yolanda owns a beauty salon. She was served court papers when an employee she was having a dispute with made a small claims application to the Federal Circuit and Family Court of Australia Court.
The employee claimed he wasn’t paid for all the hours he worked. He had recorded his hours in a diary. Yolanda had told the employee these were hours the employee had to stay back for training. The employee disagreed. He said Yolanda had told him to stay back those hours and do work.
Yolanda read the stamped court papers and gathered her own evidence to prepare for the court hearing date set out in the court papers.
At the hearing, the judge heard from the employee and then Yolanda was able to speak. The judge said that, by law, the hours that the employee was directed to work should have been paid even if they were for training.
The judge recommended that Yolanda and the employee attend court-appointed mediation to discuss payment for the training hours.
The small claims process can also be used for certain disputes about casual conversion.
Before using the small claims process, employers and employees should attempt to resolve the dispute using the dispute resolution process in:
- their award or agreement
- employment contract or other written agreement, or
- the National Employment Standards.
Find out more at Disagreements about casual conversion.
Casual conversion disputes that can be raised in the small claims court include:
- whether an employer has to offer their casual employee permanent employment
- if an employer has reasonable grounds to not make an offer or refuse an employee’s request to become permanent
- whether a casual employee has the right to request casual conversion.
The small claims court can make orders to resolve disputes. For example, they may make orders:
- stopping an employer from using particular reasons when refusing to make an offer or refusing a request for conversion, or
- requiring an employer to consider whether they have to make an offer or accept a request for conversion.
For court forms and further information about taking a small claims action contact the Federal Circuit and Family Court of Australia or the magistrates’ court in your state or territory:
- Australian Capital Territory
- New South Wales
- Northern Territory
- South Australia
- Western Australia
To take legal action about breaches of an employment contract, or for a claim that’s for more than $100,000, you should seek independent legal advice. Find out where to get legal advice.