How to Prepare Effective Pleadings in Employment Law Cases
- Brian AJ Newman, LLB
- Jul 9
- 5 min read
Why your pleadings matter
With more than three decades of Professional Advocacy in Industrial Tribunals and Commissions, this is our observation.
A Statement of Claim is the document that tells the Court:
who the parties are;
what legal rights were breached;
what facts establish those breaches;
what remedies are sought.
It is not evidence.
It is not an affidavit.
It is not a witness statement.
It is simply the framework upon which the entire case is built.
Everything that follows—including discovery, witness evidence, objections, cross-examination and submissions—is generally directed towards the issues identified in the pleadings.
Poor pleadings produce poor litigation.
What is a pleading?
A pleading is a formal court document that identifies:
the legal causes of action;
the material facts relied upon;
the relief sought.
Its purpose is fairness.
As Mason CJ and Gaudron J explained in Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279, pleadings exist so each party understands precisely the case they must meet.
Likewise, in Betfair Pty Ltd v Racing NSW (2010) 189 FCR 356, the Full Court explained that pleadings:
identify the material facts;
define the issues for trial;
determine the scope of discovery;
determine what evidence is admissible;
prevent trial by ambush.
These remain the fundamental principles of Australian civil procedure.
Material facts are not evidence
This is perhaps the most common mistake self-represented litigants make.
Material facts answer:
What happened?
Who did it?
When?
How does it satisfy the legal elements?
Evidence answers:
How will you prove those facts?
For example:
Poor pleading
"The Respondent unfairly discriminated against me."
This is merely a conclusion.
Better pleading
"On 14 February 2025 the Applicant informed Ms Smith that he required modified duties due to a diagnosed disability. On 18 February 2025 Ms Smith refused the request stating 'we don't make exceptions' and directed the Applicant to continue full duties."
The evidence—emails, medical certificates and witness statements—comes later.
Don't plead conclusions
The Court repeatedly criticises pleadings containing statements such as:
unfair
unlawful
discriminatory
victimised
bullied
breached legislation
unless the material facts supporting those conclusions are pleaded.
The Court determines whether conduct was unlawful.
You merely plead the facts.
Every cause of action has legal elements
One of the central criticisms in Patial was that the applicant pleaded numerous complaints without identifying the legal causes of action supporting them.
Each cause of action has essential legal elements.
For example:
General Protections
You must plead facts establishing:
workplace right;
exercise of that right;
adverse action;
causal connection.
Not merely:
"I exercised my workplace rights."
Adverse Action
Identify:
what right existed;
when it was exercised;
who knew;
what adverse action followed;
why it is alleged the action occurred because of the workplace right.
Discrimination
Identify:
protected attribute;
unfavourable treatment;
comparator (where applicable);
causal connection.
Sham Contracting
Identify:
representation;
employment relationship;
misleading representation that employment was contracting.
Simply saying "the contract was sham" is insufficient.
Separate facts from argument
Another recurring problem is including lengthy legal argument inside pleadings.
A pleading is not submissions.
For example:
Poor
"The Respondent acted maliciously, dishonestly and unconscionably in complete disregard of natural justice."
Better
"On 5 March 2025 the Respondent terminated the Applicant's employment without providing notice of the allegations or an opportunity to respond."
The legal consequences come later.
Avoid narrative pleading
Courts repeatedly criticise pleadings that read like novels.
The Statement of Claim is not your life story.
Only include facts necessary to prove each legal element.
If a fact does not assist in proving one of the causes of action, it probably does not belong in the pleading.
Don't plead evidence
Another common mistake is attaching every email and reproducing lengthy conversations.
Instead of pleading:
Email dated 4 February states...
Plead:
On 4 February 2025 Ms Jones informed the Applicant that...
The email itself becomes evidence later.
Don't plead "rolled-up allegations"
One of the strongest criticisms made in Panagiotidis concerned "rolled-up allegations."
For example:
The Respondents unlawfully discriminated against the Applicants.
Which respondent?
Against which applicant?
What conduct?
When?
Courts expect each allegation to identify:
person responsible;
specific conduct;
date;
legal significance.
Each respondent deserves to know precisely what is alleged against them.
Plead each respondent separately
Where there are multiple respondents:
Do not write:
The Respondents terminated the Applicant.
Instead:
On 12 June 2025 Mr Brown, acting as Operations Manager for ABC Pty Ltd, informed the Applicant his employment was terminated.
If alleging accessory liability against directors or managers:
Plead the facts establishing their involvement.
Do not merely allege they were directors.
Don't mix alternative cases together
Alternative pleadings are permitted.
However, they must be clearly separated.
For example:
Primary case
The Applicant was an employee.
Alternative case
If the Court finds the Applicant was not an employee, the Respondent nevertheless contravened section ...
Mixing competing factual cases together creates confusion.
This was another criticism made in Panagiotidis.
Avoid excessive length
Long pleadings are not necessarily good pleadings.
The Court criticised pleadings that became:
prolix;
confusing;
argumentative;
repetitive;
labyrinthine.
If a pleading runs to hundreds of paragraphs but obscures the legal issues, it becomes less effective—not more.
Identify the relief sought
Your pleading should clearly specify the remedies sought.
Examples include:
declarations;
compensation;
pecuniary penalties (where applicable);
reinstatement;
injunctions;
interest;
costs where available.
Common pleading mistakes
The recent authorities identify recurring problems.
1. Pleading conclusions instead of facts
Wrong
The employer breached the Fair Work Act.
Right
State the conduct.
2. Pleading evidence
Wrong
Email dated 4 February attached.
Right
Plead the fact.
3. Pleading every workplace complaint
Not every workplace issue becomes legally relevant.
Focus on facts proving legal elements.
4. Naming directors without pleading involvement
Liability requires pleaded facts showing knowledge, participation or statutory responsibility—not merely office held.
5. Combining multiple allegations
Each allegation should stand alone.
6. Including submissions
Legal argument belongs in submissions.
Not pleadings.
7. Including witness evidence
Save this for affidavits.
8. Using vague language
Avoid phrases such as:
treated badly;
bullied;
discriminated against;
unfair.
Explain exactly what occurred.
The importance of identifying causes of action
Ask yourself:
Which law creates this right?
Which section was breached?
Which legal elements must I prove?
Which pleaded facts satisfy each element?
If you cannot answer these questions, the pleading probably needs further work.
The Court's message
The recent decisions send a consistent message.
Courts expect pleadings that are:
concise;
organised;
legally coherent;
based on material facts;
directed to recognised causes of action.
They do not expect lengthy narratives, unsupported conclusions or pleadings that require the Court or respondents to guess the case being advanced. Patial and Panagiotidis demonstrate that where pleadings are confusing, prolix, conclusory or fail to articulate complete causes of action, the Court may strike them out and require the applicant to start again.
Practical Pleading Checklist
Before filing your Statement of Claim, ask yourself:
Have I identified every legal cause of action?
Have I pleaded all material facts?
Have I avoided pleading evidence?
Have I avoided legal argument?
Have I identified each respondent's conduct separately?
Have I pleaded dates wherever possible?
Have I pleaded facts rather than conclusions?
Have I clearly identified the remedies sought?
Could a stranger read the pleading and understand exactly what each respondent is alleged to have done?
If the answer to any of these questions is "no", your pleading may require further refinement before filing.
Final Thoughts
A well-drafted Statement of Claim does more than commence proceedings—it provides the roadmap for the entire litigation. Courts consistently emphasise that pleadings must identify material facts, clearly articulate recognised causes of action, and provide fair notice of the case to be met. Applicants who invest time in preparing precise and coherent pleadings place themselves in a far stronger position to progress their claims efficiently and avoid unnecessary procedural disputes.
Disclaimer: This article provides general information only and is not legal advice. Court pleadings should be prepared having regard to the facts of each individual case, the applicable legislation and court rules.
MYUNION provides employment and human rights advocacy and representation where permitted by law. We are not a law firm and do not provide legal advice. If you require legal advice, you should consult an Australian legal practitioner.