Donaldson v Humanity Health Group Pty Ltd
[2025] FedCFamC2G 696
•16 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Donaldson v Humanity Health Group Pty Ltd [2025] FedCFamC2G 696
File number(s): SYG 2109 of 2024 Judgment of: JUDGE LAING Date of judgment: 16 May 2025 Catchwords: INDUSTRIAL LAW – FAIR WORK ACT – general protections court application – application for an extension of time – matters relevant to the discretion – extension of time granted Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 365, 368, 370 & 550 Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Grech v Truck Tech [2023] FedCFamC2G 184
Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829
Division: Fair Work Number of paragraphs: 34 Date of hearing: 8 May 2025 Place: Sydney Counsel for the Applicant: Mr M Moir Solicitor for the Applicant: JB Solicitors Solicitor for the Respondents: Mr C McArdle of McArdle Legal ORDERS
SYG 2109 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARELIZE JANET DONALDSON
Applicant
AND: HUMANITY HEALTH GROUP PTY LTD
First Respondent
FRED CICCHINI
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
8 MAY 2025
THE COURT ORDERS THAT:
1.Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth), the time for the applicant to make a general protections court application shall be extended to the date of filing, namely 30 August 2024.
2.The applicant has leave to rely upon the Statement of Claim filed on 11 March 2025.
3.The reasons for orders 1 and 2 be reserved, to be delivered at 9:45am on 16 May 2025.
4.The respondents file and serve any Defence relied upon by 5 June 2025.
5.The applicant file and serve any Reply by 19 June 2025.
6.The matter be referred to mediation before a Registrar of the Court pursuant to s 169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
7.The parties must approach the Chambers of Judge Laing within 7 days of the conclusion of the mediation if unsuccessful, with a view to the matter being relisted for a directions hearing.
8.Liberty to apply on 3 days’ notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant (Ms Donaldson) seeks compensation and the imposition of pecuniary penalties following from her alleged dismissal in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (FW Act) by the first respondent (HHG). Ms Donaldson contends that the second respondent (Mr Cicchini) was involved in the contravention pursuant to s 550(1) of the FW Act.
Ms Donaldson required an extension of time in order to prosecute her claims for relief. At the hearing of the extension of time application on 8 May 2025, orders were made granting the extension. Related procedural orders were also made. These are the reasons for the orders that were made on that date.
PROCEDURAL HISTORY
Ms Donaldson made an application to the Fair Work Commission (FWC) pursuant to s 365 of the FW Act, which was the subject of a conference on 16 July 2024.
On 25 July 2024, the FWC issued a certificate under s 368(3)(a) of the FW Act. The application to this Court was, pursuant to s 370 of the FW Act, required to be made within 14 days (namely, by 8 August 2024). However, the application was not made until 30 August 2024, 22 days later.
The matter was listed by the Registry for a first court date on 20 September 2024. The listing was vacated through orders made by consent in Chambers on 17 September 2024. Those orders set a timetable regarding the extension of time application, which was listed for hearing on 26 November 2024.
The listing was ultimately adjourned, by consent, to allow Ms Donaldson further opportunity to retain legal representation. The matter was accordingly listed for hearing of the extension of time application on 11 February 2025. Further adjournment was sought by Ms Donaldson in advance of the listing, which was opposed by the respondents. The hearing on 11 February 2025 proceeded on that date.
Counsel appeared for Ms Donaldson at the hearing. Ms Donaldson’s Counsel acknowledged that the Form 2 articulating Ms Donaldson’s complaints was not a model of clarity. Although it suggested that Ms Donaldson had exercised workplace rights, and suffered adverse action (including dismissal), it did not expressly contend that adverse action had been taken because of her exercise of any workplace right. At the hearing, Ms Donaldson’s Counsel explained that this was the intention of the document. An opportunity was sought to file a Statement of Claim that set out more clearly Ms Donaldson’s contentions in this regard. A timetable was set permitting the parties to file further material, with the resumed hearing scheduled to occur at 10.00 am on 30 April 2025. As that morning became unavailable, the parties were offered an afternoon listing or a listing the following week. The parties preferred the latter. Prior to the resumed hearing, a Statement of Claim was filed by Ms Donaldson’s legal representative on her behalf detailing the claims that were ultimately relied upon.
PRINCIPLES
The respondents relied upon the following principles set out in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300 (Marshall J):
1.Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2.Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3.Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4.The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5.The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6.Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.
The respondents observed that the above case is referenced in one of the notes to s 370 of the FW Act and also by Logan J in Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829 at [46].
During the resumed hearing, both the respondents and Ms Donaldson referred to various cases. Ms Donaldson referred to Grech v Truck Tech [2023] FedCFamC2G 184 (Judge Forbes), a case in which an extension of time was refused, and sought to explain why the present case was distinguishable. The respondents referred to cases emphasising the significance of the relevant time limit. The respondents also referred to cases in which extensions of time had been granted in “extreme” circumstances.
I accept that the time limit is significant: see for example Kelly at [44]-[47]. Extension ought not to be granted without adequate basis. However, I am not persuaded that it is only in “extreme” cases that this ought to occur. There are certainly less extreme examples available in the case law. In any event, each case must turn upon its own particular circumstances.
EXPLANATION FOR THE DELAY
The following explanation was provided in the application filed on 30 August 2024:
a.The application was delayed as the respondent engaged in negotiations which at the time seemed probable, that the matter would be settled outside of court proceedings. The respondent, however, withdrew their offer and disengaged from negotiations immediately after the 14 days deadline expired.
b.The actions of the respondent, set forth in the attached claim filed with this application form, has had a significant impact on my mental health.
c.I have been diagnosed with major depressive disorder and even basic daily functions is extremely challenging. Completing this application has been very triggering, the impact and trauma sustained frequently cause paralysing anxiety and lack of concentration, all of which considerably slowed the application process even further.
…
(As per the original)
This was elaborated upon in an affidavit of Ms Donaldson affirmed on 7 November 2024. In that affidavit, Ms Donaldson referred to having been supported by a family member practising law in the UK (her brother) both during the FWC conference and subsequent negotiations. This assistance was said to have been necessary “due to severity of the trauma and associated anxiety” that Ms Donaldson was experiencing at the time. The relevant trauma was said to have had a “significant detrimental impact” upon Ms Donaldson’s mental health. Ms Donaldson expressed that she was consequently “unable to speak on [her] own behalf”. Ms Donaldson expressed that, had her mental health not been so impacted, she would have been “able to submit the application within the specified timeframe”.
Annexure C to the affidavit contains two emails. The first is an email from Ms Donaldson’s brother to the FWC on 7 August 2024 (the day before the last day for filing the application to this Court within time). The email referred to ongoing settlement discussions, difficulty on account of his location in the UK and a request for an extension of the relevant deadline. Annexure C also contains a subsequent email from the brother to Ms Donaldson expressing that he had been assured in a phone call that “a simple email will suffice, that it happens all the time”. The brother also stated that “the respondent ended the negotiation the moment it expired in time” despite being assured “that it could continue on those basis” and expressed the view that Ms Donaldson had been “misled by the commissioners office representative”.
In a further affidavit dated 10 February 2025, Ms Donaldson referred to a history of seeking mental health treatment related to workplace issues. Ms Donaldson referred to her brother assisting her before the FWC and in negotiations at the time because she felt unable to speak for herself on account of stress. She referred to confidence at the time that the matter would settle and to wishing to avoid further costs and inconvenience for those involved. Ms Donaldson also referred to experiencing challenges with her mental health, and finding basic day-to-day functions challenging, after the deadline for filing an application with the Court had been missed. She referred to finding the process of completing the application “very triggering and emotionally draining”, with it causing “paralysing anxiety” and difficulties with concentration. Feelings of anxiety and sadness were said to have slowed down the process. Ms Donaldson described frequently breaking down in tears, having to leave the task for several days at a time until she had regained the strength to continue.
Ms Donaldson also relied upon a report by a clinical psychologist, Werner Teichert, dated 6 March 2025. A history of treatment from 25 January 2023 to 12 May 2023, and then from 26 June 2024 was reported. Mr Teichert expressed that Ms Donaldson’s symptoms in relation to the period of treatment from 26 June 2024 to 8 August 2024 were consistent with a diagnosis of Major Depressive Disorder. Mr Teichert expressed the opinion that, during the relevant period, Ms Donaldson “was experiencing significant psychological distress which impaired her ability to engage in administrative tasks, decision-making, and communication related to court proceedings”.
In cross-examination, Mr Teichert accepted that despite her medical history, Ms Donaldson had been able to perform tasks such as those associated with her work. He also accepted, generally, that Ms Donaldson was “a competent woman” socially, in terms of day-to-day conduct. I am not convinced that this undermines Ms Donaldson’s evidence regarding the impact of her mental health condition in the period between issue of the FWC certificate and the filing of the application with this Court. Ms Donaldson’s performance at work preceded that period. Ms Donaldson’s evidence was that her condition deteriorated after her dismissal. Mr Teichert’s affidavit evidence focussed on the impact upon Ms Donaldson’s functioning in the period between 26 June 2024 to 8 August 2024. This does not mean that, more generally, Ms Donaldson could not be described as “a competent woman”.
Ms Donaldson’s evidence is also supported by medical records annexed to her affidavit of 10 February 2025. Those records include (inter alia) a letter from a Dr Terrance Lim (Consultant Psychiatrist) to a Dr Shamsunnaher Renu dated 29 August 2024 referring to Ms Donaldson’s reported stress, anxiety and difficulty functioning.
I accept the respondents’ submission that Ms Donaldson’s expectations regarding settlement do not provide an adequate explanation for not filing the application within time. Although Ms Donaldson may have hoped for or anticipated settlement being reached, until this occurred there was always the possibility that it would not. I am not persuaded that hope or expectation regarding a different outcome provides an adequate explanation for not filing within time.
However, Ms Donaldson’s inaction must be considered within the context of her mental condition at the time. Based upon Ms Donaldson’s evidence and that of Mr Teichert, I accept that Ms Donaldson was suffering from a Major Depressive Disorder from at least 26 June 2024 to 8 August 2024 that affected her ability to function in a manner relevant to her dispute with the respondents. This is supported by the evidence of her treating psychologist. It is supported by her own evidence regarding the challenges that she was having with functioning and undertaking tasks around that time.
I accept, as the respondents submitted, that Ms Donaldson appears to have retained some level of capacity during this period. This included the ability to provide her brother with instructions regarding a settlement offer. The respondents also referred in submissions to an email sent by Ms Donaldson to the FWC on 22 August 2024, echoing her brother’s suggestion that delay had been caused by settlement negotiations and querying whether the relevant certificate could be reissued. This email does not appear to have made its way into evidence (although Ms Donaldson accepted in cross-examination that she had sought an extension “after the event”). Even if the communication were in evidence, as considered above, mistakes made by Ms Donaldson in this regard have to be construed in the context of her mental health condition at the time.
Although Ms Donaldson was able to attend to some tasks during the relevant period, this does not negate the evidence regarding the debilitating effect of her mental health condition upon her ability to file an application with this Court within time. The claim that Ms Donaldson faced such difficulties is supported by her own evidence as well as medical evidence.
Having regard to the above, I consider that an acceptable explanation has been provided for the delay of 22 days in this matter. This favours the extension of time.
ACTION TAKEN BY THE APPLICANT TO CONTEST TERMINATION
It is not contested that the time for filing the application expired within the context of settlement negotiations. On 7 August 2024, the day before expiry of the deadline, Ms Donaldson’s brother asked the FWC to extend the 14-day deadline. These actions indicated that Ms Donaldson was actively contesting the termination. So too did Ms Donaldson’s subsequent request for an extension.
Ms Resnick has given evidence that when the deadline passed, she had assumed that the matter was not continuing. This may be so, although endeavours towards negotiation after the expiry of the period and the requests for extension indicated (at least to some extent) that Ms Donaldson was pressing her claims beyond expiry of the period. In any event, for the reasons given above, I accept that an acceptable explanation has been provided for Ms Donaldson’s delay.
MERITS OF THE SUBSTANTIVE APPLICATION
In essence, Ms Donaldson contends in the Statement of Claim that:
(a)she exercised, or proposed to exercise, workplace rights within the meaning of ss 340 and 341 of the FW Act by requesting or proposing to take personal leave and by taking personal leave;
(b)certain complaints that she made were complaints or inquiries made in relation to her employment within the meaning of s 341(1) of the FW Act, which involved the exercise of a workplace right within the meaning of ss 340 and 341;
(c)HHG took adverse action, within the meaning of s 342(1) of the FW Act, by dismissing her from her employment;
(d)her dismissal was because of asserted workplace rights in taking personal leave and making the complaints;
(e)HHG therefore contravened s 340(1) of the FW Act; and
(f)Mr Cicchini was involved in the contravention, pursuant to s 550(1) of the FW Act, by reference to his role within the company and certain interactions with Ms Donaldson.
The above appears to give rise, propositionally, to an arguable general protections claim under s 340 of the FW Act. Depending upon the evidence ultimately adduced, the claim appears to be capable of being resolved in Ms Donaldson’s favour.
The respondents submitted that the case relied upon by Ms Donaldson was, at most, weak. In this regard, they relied upon an affidavit by Ms Resnick dated 11 November 2024, together with some “notes” that had been made by Ms Resnick. Ms Resnick contends in her evidence (inter alia) that the only reason for Ms Donaldson’s termination was redundancy. However, this is untested evidence provided at a preliminary stage. It may or may not be accepted after a fully contested final hearing. I did not consider it appropriate to conduct a mini-trial on the disputes of fact between the parties at this preliminary stage.
It follows from the above that I accept that Ms Donaldson has a reasonably arguable claim for relief, although its ultimate merit is not yet able to be determined. The existence of an arguable claim favours an extension of time.
PREJUDICE AND FAIRNESS
Ms Donaldson accepted that there was some prejudice to the respondents, in the sense that they have had to engage with the threshold issue of the extension of time and the complication that this has introduced to the proceeding. However, as Ms Donaldson submitted, there is no evidence that the delay that this has involved has caused significant degradation of the available evidence. Ms Resnick’s evidence indicates that the people involved in the factual disputes, and their recollections, remain available to the respondents.
In her affidavit, Ms Resnick suggested that it would be unfair to other people HHG had made redundant to allow an extension of time. Ms Resnick’s concern in this regard appears to have related to compensation that was received by employees who were made redundant, including by Ms Donaldson. Ms Resnick suggested that if Ms Donaldson were “now able to suggest things that she did not suggest until after she had been terminated, so as to obtain more money” then “the balance of fairness would have been disturbed”.
I am not sure that I understand the logic of this submission. Given that the adverse action contended was Ms Donaldson’s dismissal from her employment, it is unsurprising that Ms Donaldson’s complaint was raised after this occurred. There is no suggestion that Ms Donaldson’s application to the FWC was made out of time. If her claims do not succeed, then further compensation will not be ordered. If Ms Donaldson is successful in claiming a higher level of compensation, then compensation she has already received will be taken into account. It is not clear how either event would adversely affect other employees who have been made redundant, in a manner that may be described as unfair.
CONCLUSION
As set out above, I have found that an acceptable explanation has been provided for the delay in this matter. I have found that the proposed Statement of Claim has reasonable prospects of success, subject to the evidence that is ultimately relied upon. I have found that any prejudice to the respondents is limited. I have not been persuaded that any unfairness warrants refusal of the extension of time. Having regard to the above, an extension of time has been granted.
Although in written submissions the respondents did not propose to deal with the question of leave to rely upon the Statement of Claim, at hearing the respondents accepted that the outcome on that question ought naturally to follow from the outcome on the extension of time application. As the extension of time was granted on the basis of the proposed Statement of Claim, and noting the preliminary stage of the proceeding, leave to rely upon that document was granted. Orders were also made progressing this matter procedurally.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 16 May 2025
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