Aimee McDonald v The Trustee for Clarendon Unit Trust [2026] FWC 2851

1 Fair Work Act 2009 s.365 – General protections Aimee McDonald v The Trustee for Clarendon Unit Trust (C2026/2595) DEPUTY PRESIDENT CLANCY MELBOURNE, 29 JULY 2026 Application made under s.365 – extension of time – application dismissed. [1] Ms Aimee McDonald has made an application under s.365 of the Fair Work Act 2009 (Act) in which she alleges that she was dismissed by The Trustee for Clarendon Unit Trust (Respondent) in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). Ms McDonald’s dismissal took effect on 31 March 2026. The 21-day period ended at midnight on Tuesday 21 April 2026. The application was made on 22 April 2026. For the application to proceed, Ms McDonald requires an extension of time. The Commission may allow a further period only if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in ss.366(2)(a) to (e). [2] As to the reason for the delay (s.366(2)(a)), Ms McDonald said she experienced shock following her dismissal and further, that she was dealing with the serious illness of a much- loved family dog which added to her emotional strain. Ms McDonald also disclosed that she has a formal diagnosis of ADHD for which she is under medication. She said the medication had changed at around the time of her dismissal, which produced bouts of sweating as a side- effect. Ms McDonald consulted her general practitioner during the 21-day period after her dismissal, on 15 April 2026. She produced a letter dated 18 June 2026 in which Dr Amanda Fairweather stated that Ms McDonald had described “symptoms of reactive depression” while processing her dismissal. Ms McDonald further outlined that she went away with her family over the Easter period (3 – 6 April 2026) which had followed shortly after her dismissal and that she had searched the Commission’s website approximately 1 week after her dismissal in order to ascertain her rights, at which time she became aware of the 21-day time period. [3] Ms McDonald maintained that the combination of her shock, the issues with her pet dog and the impact of her ADHD had combined to delay the completion and filing of her application Ms McDonald also admitted, however, that she had miscalculated the date by which she had to file her application for it to be within time. [4] While I accept that Ms McDonald experienced a negative reaction as a result of her dismissal, this is not, of itself, unusual. Stress, anxiety, shock and a degree of trauma from a [2026] FWC 2851 DECISION -- 1 of 3 -- [2026] FWC 2851 2 dismissal are not uncommon reactions. Further, even if I accept Ms McDonald suffered from the ADHD symptoms she described and that there were some periods during which her level of functioning may have been impaired, there was the other activity she was able to undertake during the 21-day period after her dismissal took effect that I have outlined above, such that I am not persuaded that the matters raised by Ms McDonald rendered her so debilitated that she could not take the necessary steps to make an application within the required 21-day period. I am also satisfied that Ms McDonald became aware of the 21-day time period well ahead of its expiry, left herself exposed by not prioritising the filing of her application soon enough and, ultimately, simply miscalculated the deadline date. In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case. [5] Ms McDonald took some action to dispute the dismissal, in that she emailed the Respondent on the day after her dismissal seeking reasons for her termination (s.366(2)(b)). This weighs in favour of an extension, albeit not to any significant degree. As to the s.366(2)(c) consideration, I do not consider there to be any prejudice to the employer associated with the relatively short delay in this case. Nor do I consider that there are any matters that are relevant to fairness between Ms McDonald and other persons in a like position (s.366(2)(e)). I therefore consider these two considerations to be neutral factors. In relation to the merits (s.366(2)(d)), Ms McDonald relies on having family and caring responsibilities. Despite having been engaged to work for three days per week and the parties entering into a written agreement signed on 20 March 2026, Ms McDonald claims she was dismissed because the Respondent changed its mind and wanted to have a full-time employee who did not have the same constraints on their availability as she did. Ms McDonald disputes that the Respondent had genuine operational reasons for dismissing her because when she was dismissed, she had only been employed for two days. In response, the Respondent made a number of assertions relating to the Applicant’s performance that it says formed the basis of its decision to dismiss her. These included that she frequently left her workstation for trips to the bathroom carrying her backpack, thereby leaving her colleagues to carry out all the reception duties, together with concerns about her presentation and profuse sweating and the impact this was having on patients and colleagues. I am unable to make any firm assessment of the merits at this stage. They would depend on factual findings made by a court after hearing the evidence. Because I do not consider the merits to tell for or against an extension of time, I regard them as a neutral consideration. [6] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. When the lateness of Ms McDonald’s application is being considered, it is relevant to bear in mind that the requirement that there be ‘exceptional circumstances’ before time can be extended under s.366(2) of the Act has been described by a Full Bench of this Commission as imposing a “very high bar…required to be surmounted in order to obtain an extension of time to lodge an application”.1 The requirement also contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable if the Commission simply considers that it is “fair” to do so. [7] Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed. 1 Mohammed Ayub v NSW Trains [2016] FWCFB 5500 at [36]. -- 2 of 3 -- [2026] FWC 2851 3 DEPUTY PRESIDENT Appearances: A McDonald on her own behalf. S Sinha for The Trustee for Clarendon Unit Trust. Hearing details: 2026. Melbourne (by Video using Microsoft Teams). July 23. Printed by authority of the Commonwealth Government Printer <PR812604> -- 3 of 3 --