Johnson v A.T. Kearney Australia Pty Ltd

1. The applicant, Mr Johnson, applies for leave to file a further amended statement of claim in the form of the "Applicant's Amended Second Statement of Claim" (PASC) annexed to the affidavit of Mr Ahmad Ayad Akram Akram made on 3 February 2026.
2. It will be necessary to begin with the current (amended) statement of claim.

1. The current statement of claim (CSC), being the applicant's second statement of claim, pleads three causes of action against the respondent (ATKA).

(a) The first is a cause of action based on an alleged contravention of s 340(1) of the Fair Work Act 2009 (Cth) (FW Act). The CSC alleges that on 11 April 2024 ATKA took adverse action against Mr Johnson by giving him notice that ATKA would terminate his employment on 11 May 2024. The CSC also alleges that ATKA took such adverse action because on three occasions Mr Johnson exercised the workplace right provided for by s 341(1)(c)(ii) of the FW Act by making inquiries in relation to his employment.

(b) The second cause of action is based on an alleged contravention of s 351 of the FW Act. The CSC alleges that on three occasions ATKA denigrated Mr Johnson because of his religion and race; on one of those three occasions ATKA put Mr Johnson on notice that it would not make reasonable accommodation for him to practice his religion; and on another of those three occasions, ATKA threatened the security of Mr Johnson's employment with ATKA because of his race.

(c) The third cause of action is based on a breach of an express term of the contract of employment (Employment Contract) pursuant to which ATKA employed Mr Johnson. The CSC alleges it was a term of the Employment Contract that, on completion of the probation period provided for by the contract, Mr Johnson would be eligible for a grant of restricted stock units to the value of USD100,000; but, having completed the probation period, ATKA did not provide to Mr Johnson any stock units.

1. The PASC introduces three causes of action. The first is based on the breach of an alleged disciplinary policy which formed part of the Employment Contract (Disciplinary Terms claim). The proposed amendments consist of the following allegations:[1]

(a) Clause 16.1(c) of the Employment Contract provided that ATKA's policies form part of the Employment Contract.

(b) One of ATKA's policies, which was titled "Disciplinary Policy", contained terms relating to the investigation of alleged misconduct by an employee, and the process by which any disciplinary action, including termination of employment, would be considered.

(c) Given (a) and (b), the terms of the Disciplinary Policy formed part of the Employment Contract.

(d) The Disciplinary Policy included the following terms (Disciplinary Policy Terms):

(i) an employee who has been reported for misconduct for which an investigation is warranted, will be presented a written notice of alleged act(s) of misconduct, and will be afforded a proper opportunity to respond to the written allegations;

(ii) an employee accused of misconduct will be permitted to submit a written response, and attend a later interview with relevant leaders to provide any evidence, context, or witness testimony in their defence; and

(iii) an employee will be permitted to be accompanied by a support person at any meeting which is part of this process.

(e) ATKA breached the terms referred to in (d) because ATKA did not inform Mr Johnson it was considering terminating his employment because of his performance, his interactions with other staff, or because of unsatisfactory behaviour or conduct (as alleged in paragraph 25(a) of ATKA's defence); Mr Johnson was not given an opportunity to respond to these matters; and Mr Johnson was not otherwise put on notice that ATKA was considering terminating his employment.

1. The second cause of action is based on an alleged breach of an implied term of the Employment Contract (Breach of Safety Term claim). The proposed amendments consist of the following allegations:

(a) It was an implied term of the Employment Contract that ATKA would provide Mr Johnson with a safe system of work and a safe place to work (the Safety Term).[2]

(b) ATKA breached the Safety Term because of the matters alleged earlier in the PASC, these being ATKA's alleged contraventions of s 340(1) and s 351 of the FW Act, and ATKA's alleged breach of its disciplinary policies. The matters also include those alleged in paragraphs 22A, 22B, and 22C of the PASC.[3]

(c) By reason of (b), Mr Johnson suffered and continues to suffer injury in the form of psychological harm. The particulars allege Mr Johnson suffers from Post Traumatic Stress Disorder, Chronic Adjustment Disorder, depression, and anxiety.[4]

1. The third cause of action is based on an alleged breach of s 62(1) of the FW Act (Additional Hours claim). The PASC alleges that ATKA, from time to time, required Mr Johnson to work at least 80 hours per week without paying him any additional remuneration or benefits.

1. The source of this Court's power to permit the amendment of a pleading is contained in r 13.26 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth), which provides:

(1) Unless rule 13.24 applies, a party must apply for the leave of the Court to amend a pleading.

(2) A party may apply under subrule (1) for leave to amend a pleading to add or substitute a new claim for relief, or a new foundation in law for a claim for relief that arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party, even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started.

(3) A party must not apply under subrule (1) for leave to amend a pleading to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises, in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding if the application would be made after the end of any relevant period of limitation applying at the date the proceeding was started.

1. The principles that govern the exercise of this power in relation to an application to amend pleadings are well-settled, and for present purposes the following statement of the principles is sufficient:[5]

The principles applicable to applications for leave to amend are well established and include the following:

(1) the starting point is "that all amendments should be made and allowed that are necessary to ensure the real questions in controversy between the parties are decided": Oswal v Apache Corporation (No 3) [2014] FCA 835 at [5];

(2) an amendment will "ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment": S.P.I. Spirits (Cyprus) Ltd v Diageo Australia Ltd (No. 4) [2007] FCA 1035 ("S.P.I. Spirits") at [14];

(3) leave should be granted unless the proposed amendment "is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner" indicated above: S.P.I. Spirits at [17];

(4) the allowance of an amendment before the commencement of a trial "stands in a very different position from amendment towards the end of a trial": S.P.I. Spirits at [18]; and

(5) relevant matters the Court may consider include the nature and importance of the amendment to the party applying for it and the prejudice caused by the amendment: Tamaya at [127].

1. More recently, in KTC v David the Full Federal Court said:[6]

Leave to amend should generally be granted unless the proposed amendment is futile, including, for example, because the issue sought to be raised by the amendment has no reasonable prospects of success, or would be liable to be struck out as not raising a reasonable cause of action, or where the amendment would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by the award of costs: Research in Motion Ltd v Samsung Electronics Australia Pty Limited (2009) 176 FCR 66; [2009] FCA 320 at [21]- [22]; Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8]; Caason at [21].

1. ATKA opposes Mr Johnson having leave to plead the Disciplinary Terms claim because in the particulars to paragraph 43 of the PASC it is stated that Mr Johnson does not currently have, or have access to, a copy of the Disciplinary Policy; and ATKA has read an affidavit made by Mr Nicholas Booth, ATKA's Human Resources Director, Asia Pacific, who deposes to having undertaken extensive searches of ATKA's records without having located a disciplinary policy to the effect alleged in the PASC. Mr Booth deposes as follows (emphasis in original):

16. During my Searches, I did not locate:

(a) any policy titled 'Disciplinary Policy' or a title to similar effect which applied to the Respondent's employees, including the Applicant during his employment; and

(b) any policy which contained terms the same or similar to the terms set out at paragraph 45 of the ASSOC, which applied to the Respondent's employees, including the Applicant during his employment.

1. The results of the Searches confirmed my understanding that the Respondent has never had a Disciplinary Policy, at least during my employment.

2. I did locate the following documents during the Searches, which do not apply to the Respondent or its employees:

(a) A draft document which was never published or in force at the Respondent titled 'Performance Counselling and Disciplinary Policy' (Draft Policy);

. . . .

(b) A policy which applied to the India division of Kearney (being a separate company to the Respondent) that dealt with disciplinary matters titled 'Personnel Policies' (India Policy); and

. . . .

(c) A policy which applied to the Middle East and Africa division of Kearney which dealt with disciplinary matters, titled 'MEA Grievance & Disciplinary Policies' (Middle East and Africa Policy).

1. Mr Booth further deposes that the "Draft Policy" was not implemented, and he identifies the basis on which he so deposes. Mr Booth also says that neither the India Policy nor the Middle East and Africa Policy applied to ATKA's employees.
2. In its counsel's written submissions, ATKA submits that the Disciplinary Terms claim has been pleaded without any factual foundation, and Mr Booth's evidence excludes the possibility that facts essential to the Disciplinary Terms claim will be established at trial. For that reason, if Mr Johnson were granted leave to plead the Disciplinary Terms claim, it would have no reasonable prospects of success.
3. Counsel for Mr Johnson, on the other hand, submitted there was a factual foundation for pleading the Disciplinary Terms claim, namely, paragraph 47(c) of the PASC, which alleges as follows:

Following the Termination:

. . . .

1. On or about 15 April 2024, the Applicant had a telephone conversation with Asli Cetinsolak, Regional Ombud [sic] of the Respondent for the Asia-Pacific region, during which Ms. Cetinsolak said words to the effect "Toyin, because of my role, I am required to be familiar with our Policies and procedures in these situations... As Ombud, I know that you would have been given notice in writing about any of these allegations about you. That's how the disciplinary process starts then you would have been given a chance to respond... It's not possible that they would have called you into a meeting to terminate you without going through all the steps."

1. Paragraph 47(c) of the PASC does not plead material facts; it pleads evidence. For the purpose of this application, however, I propose to treat paragraph 47(c) as particulars of the allegation made in paragraphs 43 and 45 of the PASC. The question that arises, then, is whether paragraph 47(c) of the PASC, if proved, provides a foundation for the allegation that there existed a Disciplinary Policy that included the Disciplinary Policy Terms. That question is to be answered in the affirmative.
2. Under s 48(1)(a) of the Evidence Act 1995 (Cth), the contents of a document may be proved by adducing evidence of an admission made by another party to the proceeding as to the contents of the document. Paragraph 47(c) identifies Ms Asli Cetinsolak as a "Regional Ombud", which I infer stands for "Regional Ombudsman". It is reasonably open to infer that Ms Cetinsolak spoke within the scope of her authority as ombudsman for companies, including ATKA, which formed part of the group for which Ms Cetinsolak was ombudsman; and that, on the basis of what it is alleged she said, to infer further that ATKA did have a disciplinary policy that included the Disciplinary Policy Terms.
3. I am therefore satisfied that it would not be futile to grant Mr Johnson leave to amend the CSC to include the Disciplinary Terms claim; and that, whether the Disciplinary Policy containing the Disciplinary Policy Terms existed at the time ATKA decided to terminate Mr Johnson's employment, is a matter that ought to be litigated at trial.

1. ATKA submits that permitting Mr Johnson to amend the CSC by including the Breach of Safety Term claim would be futile because the making of such a claim would be subject to the preconditions specified in the Workers Compensation Act 1987 (NSW) (WC Act), and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act), and it is beyond argument that those preconditions have not been satisfied.
2. Before I consider the parties' submissions, it will be necessary to refer to the relevant provisions of the WC Act and the WIM Act; and the evidence that relates to whether those conditions specified in those provisions have been satisfied in relation to the Breach of Safety Term claim.

1. The starting point is s 151H(1) of the WC Act, which provides that "[n]o damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%". The award of damages to which s 151H(1) refers is the award of damages identified in s 151E(1) of the WC Act, namely, an award of damages in respect of, among other things, "injury to a worker . . . being an injury caused by the negligence or other tort of the worker's employer".
2. If a worker claims he has suffered an injury of the sort s 151E(1) of the WC identifies, and he or she claims that the injury resulted in a degree of impairment of at least 15%, the worker cannot commence proceeding to recover damages for such impairment without the following requirements being satisfied:

(a) First, the worker must comply with s 280A of the WIM Act, which provides that "a claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the time as the claim for work injury damages". The expression "work injury damages" is defined in s 250(1) of the WIM Act to mean "damages recoverable from a worker's employer in respect of" two things, one being "an injury to the worker caused by the negligence or other tort of the employer".

(b) Second, under s 281(1) of the WIM Act, the person on whom the claim for lump sum compensation or work injury damages is made must, within the time provided by that section, determine the claim by accepting liability and making a reasonable offer of settlement to the claimant, or by disputing liability under Division 3 of Part 2 of Chapter 4. Subsection 78(1) provides that an insurer must give notice in accordance with that Division of any decision of the insurer to dispute liability in respect of a claim, or any aspect of a claim.

(c) Third, if the person on whom the claim is made "has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%", or if "there is a dispute as to whether the degree of permanent impairment resulting from the injury is fully ascertainable", s 314 of the WIM provides there will arise "a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages". If those circumstances arise, s 313(1) of the WIM Act provides that the worker "cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Division 3 unless the degree of permanent impairment has been assessed by a medical assessor under Part 7". That means that before a worker can commence legal proceedings he or she must have his or her impairment assessed by a medical assessor pursuant to Part 7 of Chapter 7 of the WIM Act.

(d) Fourth, before a claimant can commence court proceedings for the recovery of work injury damages, he or she must serve on "the defendant" a "pre-filing statement", as required by s 315 of the WIM Act, and, moreover, refer the matter to mediation, as required by s 318A, no earlier than 28 days after the worker serves the "pre-filing statement".

Evidence in relation to satisfaction of WIM Act requirements

1. By letter dated 2 February 2026 the lawyer for Mr Johnson informed the lawyers for ATKA of the following:
   1. Mr Johnson has not made a claim for lump sum compensation in respect of the injury pursuant to section 280A of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the "WIM Act");
   2. Mr Johnson has not obtained an assessment by a medial assessor [sic] under Part 7 of the WIM Act;
   3. Mr Johnson has not served a "pre-filing statement" on your client under section 315 of the WIM Act, given that a medical assessment has not yet been conducted and, consequently, the requirement of section 313 of the WIM Act was not fulfilled.
   4. Mr Johnson has not referred his claim for mediation under section 318A of the WIM Act.

(a) The WIM Act would apply to the Breach of Safety Term claim, if it were permitted to be added to the CSC, because such claim, if added, would fall to be determined by this Court exercising federal jurisdiction; and, being a law of the State of New South Wales, the WIM Act would be binding on this Court because of s 79 of the Judiciary Act 1903 (Cth);[7]

(b) the Breach of Safety Term claim is a claim for "work injury damages";

(c) Mr Johnson has not satisfied the requirements prescribed by the WIM Act for the bringing of such claim in a court; and

(d) it would therefore be futile to permit Mr Johnson to amend the CSC by introducing the Breach of Safety Term claim.

1. In addition to the text of the relevant provisions of the WC Act and the WIM Act, ATKA relies on the judgment of Rees J in Slater & Gordon Ltd v Sellars.[8] In that case, an employee filed a cross-claim by which she claimed damages for injuries she alleged she suffered because of the employer's breaches of work safety laws. The employee did not satisfy the requirements provided for by the WIM in relation to claims for damages for personal injury. On the employer's application, Rees J ordered that the cross-claim be struck out on the ground that, given the clear language of "the workers compensation legislation", the Court could not grant the employee the relief she sought in the cross-claim.[9] Her Honour said:[10]

The language of the legislation does not permit a construction that its procedures may be ignored where a worker brings their claim for injury by way of cross-claim and defence, rather than being the principal plaintiff. The definition of "work injury damages", set out at [9], refers to a worker and employer in generic terms rather than their status as a plaintiff or defendant, cross-claimant or cross-defendant, applicant or respondent. Rather, the definition focuses on the remedy sought, being a tortious claim for damages "whether the damages are recoverable in an action for tort or breach of contract or in any other action"...

1. Counsel for Mr Johnson, on the other hand, submits that whether the Breach of Safety Term claim is subject to the requirements of the WIM Act and WC Act should be determined at trial. Counsel relies on a passage from the judgment of the Victorian Court of Appeal in Vision Australia Ltd v Elisha which refers to the plaintiff in that matter having made a claim for damages for psychiatric injury he alleged to have been caused by the defendant employer's breach of contract, but without referring to the Victorian equivalent of the WIM Act and the WC Act.[11]
2. Counsel for Mr Johnson also relies on the judgment of Judge Fary of this Court in Arend v Construction Forestry Maritime Employees Union.[12] His Honour there concluded that a number of purported causes of action pleaded in the statement of claim should be struck out, one of which was a claim for damages for breach of an employment contract. The respondent also sought to strike out a claim for damages for personal injuries on the ground it was barred because the preconditions under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) for making such a claim had not been satisfied. Judge Fary declined to strike out this part of the statement of claim:[13]

Until the question of the terms of contract and breach are addressed, it would be speculative to attempt to address the complaint in relation to the pleading of the claim for non-economic loss. To the extent that there is merit in this ground, it is a matter that can be pleaded by way of defence. It strikes me that the issue is likely to be more efficiently addressed by way of evidence and submissions, rather than in a pleading fight.

1. That Judge Fary in Arend exercised his discretion against striking out a claim on the ground that the preconditions for the making of that claim had not been satisfied does not answer the question I am required to address on ATKA's application: would it be futile to permit Mr Johnson to amend the CSC by adding the Breach of Safety Term claim? That question is to be answered in the affirmative.
2. By the operation of s 79(1) of the Judiciary Act, this Court, in the exercise of federal jurisdiction, would be bound by the WC Act and the WIM Act, to the extent those acts would apply to the Breach of Safety Term claim. That is so because the Breach of Safety Term claim is a claim for "work injury damages in respect of an injury" within the meaning of s 280A of the WIM Act. Mr Johnson, however, has not made such a claim to ATKA or to ATKA's insurer, as provided for by s 280A, which means the claim has not been determined or denied; Mr Johnson has not had the impairment caused by the injury the PASC alleges he sustained assessed by a medical assessor, as provided for by s 313 of the WIM Act; Mr Johnson has not served a pre-filing statement in relation to the Breach of Safety Term claim, as provided for by s 315; and Mr Johnson has not referred his claim for damages for mediation, as provided for by s 318A of the WIM Act. Each of these sections of the WIM Act, which provides for the taking of the steps it identifies, expressly states that the claimant cannot make a claim for work injury damages in respect of an injury, or cannot commence court proceedings for the recovery of such damages, without that step being taken.
3. I therefore propose to refuse to grant Mr Johnson leave to file an amended statement of claim to the extent it includes the Breach of Safety Term claim, because it would be futile to permit him to do so.

1. ATKA does not oppose Mr Johnson's being granted leave to amend the CSC to include the Additional Hours claim. ATKA opposes Mr Johnson being granted leave to include as a head of damage the allegation that Mr Johnson was not remunerated for the unreasonable hours the CSC alleges ATKA required him to perform. ATKA submits that, even if Mr Johnson were to succeed on his claim based on s 62(1) of the FW Act, and establish an entitlement to being paid for the additional hours he worked, the remuneration to which he would be entitled would be calculated by reference to National Minimum Wage. Such amount, however, would be covered by a term of the Employment Contract (remuneration term) that provided that Mr Johnson's salary was calculated to compensate him for all ordinary hours and all additional hours that he works.
2. I do not accept ATKA's submission. It assumes that the remuneration to which Mr Johnson would be entitled for the additional work he allegedly performed would be covered by the remuneration term; but this is a matter to be determined at trial by reference to the proper construction of the Employment Contract, and the relationship between the Employment Contract, and the operation of s 62(1) of the FW Act. Further, I am not prepared to find that Mr Johnson would have no reasonable prospects of successfully contending that he would be paid for any additional hours at a rate calculated by reference to the rate of remuneration provided for by the Employment Contract. If Mr Johnson succeeds in establishing ATKA breached s 62(1) of the FW Act, the question of compensation will be determined by comparing the position Mr Johnson was in, given the alleged contravention, and the position he would have been in, had the contravention not occurred. Mr Johnson will presumably contend that the difference would include Mr Johnson's having worked for no additional remuneration to that provided for by the Employment Contract. That would give rise to a question of how the work Mr Johnson performed should be valued. There is no reason to suppose that the value of the additional work is necessarily to be measured by reference to the rates provided for by the National Minium Wage.
3. I therefore propose to permit Mr Johnson to file a second further amended statement of claim that includes the Additional Hours claim.

1. I will grant Mr Johnson leave to file a further amended statement of claim in the form of the PASC, but excluding paragraphs 51-55 of the PASC and paragraphs 22A-22C, being paragraphs which appear to be relevant only to the Breach of Safety Term claim. I will also make the following directions, subject to the parties having liberty to apply to vary any of them:

(a) By 12 March 2026 Mr Jonhson file and serve the further amended statement of claim.

(b) By 9 April 2026 ATKA file and serve a defence to the further amended statement of claim.

(c) The matter be listed for a directions hearing at 9.30 am on 16 April 2026.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

[5] Lynch v Cash Converters Personal Finance Pty Ltd [2016] FCA 1536, at [55].

[6] KTC v David [2022] FCAFC 60, at [111].

[7] Relying on Kennedy v State of Queensland [2025] FCA 836.

[8] Slater & Gordon Ltd v Sellars [2020] NSWSC 1793.

[9] Slater & Gordon Ltd v Sellars [2020] NSWSC 1793, at [28].

[10] Slater & Gordon Ltd v Sellars [2020] NSWSC 1793, at [26].

[11] Vision Australia Ltd v Elisha [2023] VSCA 265, at [41].

[12] Arend v Construction Forestry Maritime Employees Union [2025] FedCFamC2G 1646.

[13] Arend v Construction Forestry Maritime Employees Union [2025] FedCFamC2G 1646, at [68].