QLD Adding new complaints after conciliation for court application

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

Poidah

Well-Known Member
9 November 2017
141
6
419
Qld
Is it possible to add different complaints after Fair Work conciliation, in addition to the initial complaint for the Fair Work/Federal court submission?

Let's say the initial complaint was quite solid and quite convincing. However, during conciliation there were issues that were highlighted that speaks to the mind or the decision making processes of the employer, that the employee already has evidence for, is it possible for the employee to add those new complaints to the written application for the Fair Work/Federal court submission as conciliation failed? I realise that evidence and material from the conciliation can not be used in the court, but if the employee already have access to that evidence to support additional solid arguments to speak to the decision making process of the employer, can those arguments and complaints be added to the court application after the application?
I couldn't see any court decisions or arguments that speak to this issue for some reason. Probably means that it is not possible.
 

Rod

Lawyer
LawTap Verified
27 May 2014
7,239
978
2,894

Rod

Lawyer
LawTap Verified
27 May 2014
7,239
978
2,894
Look for amending complaints.

If you change your arguments there is a possibility the other side may claim wasted costs.
 

Poidah

Well-Known Member
9 November 2017
141
6
419
Qld
If you change your arguments there is a possibility the other side may claim wasted costs.

Good point Rod, really appreciate your kind thoughts.
Hopefully it is much harder to claim wasted costs when there is evidence, and if the employer provided discussion during conciliation that speaks that evidence being relevant in their decision making and their state of mind during the termination process (even if the conciliation discussion itself is not admissible at trial).

Optimistically, it may be much trickier to claim wasted costs against a self-represented litigant as well. Expectations for the self-represented litigant is likely to be much less and if the additional complaints are within the realm of common sense even if not as legally sound. There may be negative publicity for the employer too if they take the additional action for wasted cost in open court which may be a deterrent too.
 
Last edited:

CSFLW

Well-Known Member
LawTap Verified
24 September 2018
370
27
659
Hi Poidah

Which form did you use to start your application with the Fair Work Commission (is it unfair dismissal or adverse action leading to dismissal)??

Also, as a general rule of thumb, you can add further actions not included in your Fair Work Commission application to your (Form 79) originating application with Federal Court if you have grounds.

Let us know.
 

Poidah

Well-Known Member
9 November 2017
141
6
419
Qld
add further actions not included in your Fair Work Commission application to your (Form 79) originating application with Federal Court

Thanks CSFLW, I don't think Form 79 is right. It seems to refer to a form asking for assistance.
Forms

I think once the certificate after the conciliation is provided, the claim with the added complaints can be filed using the Federal Court General Protection application form, I guess. The main complaint will remain but the additional complaints only adds to the severity of the reverse onus of proof for the employer hopefully.
 

Rod

Lawyer
LawTap Verified
27 May 2014
7,239
978
2,894
I think the confusing part of your post is this:

add different complaints after Fair Work conciliation, in addition to the initial complaint for the Fair Work/Federal court submission?

You need to differentiate between the FWC and Court. You also need to clarify is it the FCA or FCCA.

Your initiating application at court is exactly that, nothing to amend. Adding new claims to your court application is allowed as the FWC cannot make a decision about a GP matter.
 

Poidah

Well-Known Member
9 November 2017
141
6
419
Qld
Your initiating application at court is exactly that, nothing to amend. Adding new claims to your court application is allowed as the FWC cannot make a decision about a GP matter.

You are right Rod, the process from FWC to Federal Court (or FCCA) is not clear to me.

CSFLW is also right though, form 79 from the Federal court relates to general protection -

https://www.fedcourt.gov.au/forms-and-fees/forms/federal-court-rules#form79