Federal Court of Australia

Darlington-Thomas v Elgas Limited [2026] FCA 1566

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to bring a proceeding against the second respondent pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth).

2.    The originating application filed on 19 March 2026 be treated insofar as the second respondent is concerned as filed with leave of the Court pursuant to s 46PO(3A) of the Australian Human Rights Commission Act.

3.    The matter be referred to mediation before a registrar of this Court on a date to be fixed.

4.    Costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant, Ms Esme Darlington-Thomas, seeks leave to proceed under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) in respect of a claim against the second respondent, Zoom Recruitment Pty Ltd, alleging disability discrimination in contravention of the Disability Discrimination Act 1992 (Cth).

Employment arrangement

2    Zoom is a labour hire company. The first respondent, Elgas Limited, engaged Zoom’s labour hire services under a Labour Hire Agreement made between Zoom, Elgas, BOC Limited and others made 4 September 2023.

3    Ms Darlington-Thomas was employed by Zoom pursuant to the terms of a ‘Casual Employment Agreement’. During her employment with Zoom she was ‘assigned’ to Elgas to provide accounts receivable services.

4    Ms Darlington-Thomas made requests of Zoom and Elgas that she be permitted to work from home during periods preceding planned surgery and post-surgery. Those requests were deferred or denied. Elgas expressed its preference for Ms Darlington-Thomas not to work from home and in the end Zoom informed Ms Darlington-Thomas that Elgas had terminated the assignment.

5    It was not suggested that Ms Darlington-Thomas had any contractual right to work from home.

Elgas’s direction to Zoom that no return to work

6    On 8 May 2025 Ms Darlington-Thomas was notified of the termination of the assignment with Elgas by the following email to her from Zoom:

Dear Esme

Direction from Elgas

Please be advised that we have been directed by Elgas that you are not to return to their Canning Vale site.

As you are aware:

1    The duration or any assignment or Zoom employees to its clients is determined solely by the client.

2    Zoom has no control over any decision by a client to end the assignment of any particular Zoom employee.

3    The completion or termination of an assignment shall not, in the absence of clear written notice to the contrary be taken as evidence of the termination of employment.

4    Accordingly, despite the direction from Elgas, you remain employed by Zoom, your profile in FastTrack continues to be active and we will seek to source alternative work for you as and when it becomes available.

In the circumstances, if other assignments come up for which you are suitable, then there is no reason why Zoom will not offer you that work. Accordingly, can you please contact me to confirm your availability to work and to canvass current opportunities.

7    As the last paragraph of the extracted email indicates, Zoom said that Ms Darlington-Thomas’s assignment to Elgas was terminated but she remained on Zoom’s books for future placements. As it happens, at the time of the hearing Ms Darlington-Thomas had not been offered any alternative placements by Zoom.

Complaint to AHRC and its termination

8    Ms Darlington-Thomas made a complaint to the Australian Human Rights Commission (AHRC) under s 46P of the Australian Human Rights Commission Act alleging that both Zoom and Elgas discriminated against her on the basis of disability by refusing her requests to work from home, so that her employment effectively came to an end. Ms Darlington-Thomas alleged in effect that Elgas refused to properly consider or permit her request to work from home, and that Zoom did not assist her with her requests and her assignment with Elgas was consequently terminated.

9    Section 46PH(1B) of the Australian Human Rights Commission Act relevantly provides for mandatory termination of a complaint in certain circumstances. The President of the AHRC must terminate a complaint if they are satisfied that either the complaint is trivial, vexatious, misconceived or lacking in substance (s 46PH(1B)(a)); or there is no reasonable prospect of the matter being settled by conciliation (s 46PH(1B)(b)).

10    On 28 January 2026 the AHRC terminated Ms Darlington-Thomas’s complaint against both Elgas and Zoom under s 46PH(1B).

11    As to the claim against Zoom, it was terminated on the basis that it was lacking in substance or misconceived. As to the claim against Elgas, it was terminated on the basis that there was no prospect of it being settled by conciliation.

12    Section 46PO of the Australian Human Rights Commission Act sets out the circumstances in which, following termination of their complaint by the AHRC, a person may relevantly apply to the Federal Court alleging unlawful discrimination.

13    There are various statutory filters in relation to bringing such applications. Relevantly s 46PO(3) operates so that in relation to the claim against Zoom, Ms Darlington-Thomas cannot proceed with an application in this Court without leave (s 46PO(3A)(a)). No leave is required in relation to the application against Elgas (s 46PO(3A)(c)).

14    On 19 March 2026 Ms Darlington-Thomas brought an application in this Court alleging unlawful discrimination against both Elgas and Zoom, and now seeks leave in relation to the claim against Zoom. These reasons concern only her application for leave.

AHRC’s reasons for terminating complaint

15    The decision to terminate the AHRC complaint relevantly stated as follows:

Reasons for my decision

You allege that:

a)    in 2023, you made a request to work from home due to … surgery and recovery (2023 request), which was denied,

b)    on 4 March 2025, you made another request to work from home due to … surgery and recovery (2025 request), which was also denied, and

c)    on 8 May 2025, your work placement with Elgas was ended.

a)    2023 request to work from home

[not relevant to current proceeding]

b)    2025 request to work from home

Zoom has outlined that they are a provider of labour hire services to their clients, and Elgas is a client that has utilised their labour hire services. During your employment with Zoom, you were assigned to Elgas to provide accounts receivable services.

Elgas has confirmed that they expressly required Zoom to ensure that the accounts receivable services to be provided by them must be delivered on-site and not remotely as an inherent requirement of the position, and that you were aware of this requirement.

It appears from the information before me, that it was Elgas and not Zoom that required you to comply with a requirement or condition that accounts receivable services must be delivered on-site, and that the conditions of your assignment were not determined by Zoom.

I do not consider the information before me supports that Zoom would have been able to approve or decline your 2025 request to work from home and/or that you have been discriminated against because of your disability by Zoom regarding your 2025 request to work from home.

c)    2025 ending of work placement

Elgas has confirmed that they sought the accounts receivable services to be delivered by another worker from Zoom in 2025 after your attempts to deliver services offsite.

Zoom has outlined that:

•    they have no control over, or input into, any decision by the client to end the assignment of any particular Zoom employee, and

•    although your work placement with Elgas has ended you remained employed by Zoom and that your profile in its ‘FastTrack’ recruit system continues to be active.

I do not consider the information before me supports that Zoom discriminated against you because of your disability by ending your work placement with Elgas.

Rather, the information before me supports that Elgas was responsible for the ending of your work placement due to your requests to work offsite.

Respective contractual obligations

16    It is apparent that Zoom, in denying any basis upon which Ms Darlington-Thomas could pursue a claim against it, relied upon the purported absence of a contractual power for it to do anything about the terms or conditions of her assignment or role with Elgas.

17    Despite Zoom relying on the contractual matrix to deny liability, neither the Casual Employment Agreement nor the Labour Hire Agreement were in evidence before me until I noted their omission, and both were ultimately tendered. Supplementary submissions were filed after the hearing by both Ms Darlington-Thomas and Zoom in this regard.

18    The Casual Employment Agreement relevantly provided that:

(a)    employment with Zoom was on a casual basis, with each assignment representing a discrete period of temporary employment;

(b)    remuneration included an appropriate casual loading on all hours worked, to compensate for the fact that there was no entitlement as a casual employee for annual leave, sick leave, carers’ leave, personal leave, leave loading and redundancy payment;

(c)    employment with Zoom would be carried out under the supervision and direction of Zoom’s clients (in this case Elgas, and referred to as the Host Employer) for the purpose of completing specific tasks or assignments and for a specific duration (referred to as an Assignment) (cl 1.3);

(d)    Zoom may contact the employee prior to the commencement of any Assignment and inform them of the location, estimated duration, Host Employer, and remuneration offered in respect of that Assignment (cl 1.4);

(e)    a Zoom employee may reject an Assignment within a given timeframe, but once an Assignment for a particular period is accepted, must complete the Assignment (cl 1.5);

(f)    completion or termination of an Assignment does not result in termination of the Casual Employment Agreement (cl 2.4);

(g)    an employee must notify Zoom during an Assignment if for any reason they are unable to attend an Assignment (cl 4.1);

(h)    whilst engaged on an Assignment, the employee acknowledges and agrees that they are subject to the supervision and direction of the Host Employer, and that the Host Employer will inform the employee of the required working hours, safety regulations and the manner and proficiency in which the work is to be performed for the Host Employer (cl 4.1);

(i)    Zoom will pay the employee their wages due on a weekly basis on receipt of a time sheet relevantly signed by the employee and the Host Employer (cl 5.1); and

(j)    in the context of workplace safety, the employee will perform all work and associated functions as directed by Zoom and the Host Employer in the safest possible manner, obey all lawful written and verbal health and safety instructions issued by Zoom and the Host Employer, comply with all local site rules and requirements that may be introduced or varied by Zoom and the Host Employer; and adhere strictly to all standard operating procedures and safe systems of work (cl 12.1).

19    The terms of the ‘Assignment’ with Elgas offered by Zoom to Ms Darlington-Thomas and accepted by her were not in evidence. However, it is not in issue that the assignment was a desk-job in the Elgas accounts receivable department and that Ms Darlington-Thomas had worked in that position via Zoom since 2023 (and previously via a different labour hire company).

20    The Labour Hire Agreement relevantly provides that:

(a)    the service provider (in this case Zoom) agrees to provide services to BOC (relevantly in this case the entity Elgas) (recitals);

(b)    ‘services’ is defined to include sourcing, recruiting, placing and managing BOC’s requirements for ‘labour hire services’, which in turn is defined to mean the hire of ‘labour hire personnel’, which (allowing for a series of formatting errors in the definitions) should be taken to mean the employees, representatives, agents and subcontractors of the service provider who are on-hired to BOC (cl 1 definitions, sch 3);

(c)    the service provider is an independent contractor of BOC, and cannot act on behalf of BOC in any way (cl 2.2);

(d)    the service provider warrants to BOC that it will use its best endeavours to ensure labour hire personnel provided by it will perform any work that they are expected to perform in accordance with policies and procedures and in accordance with all reasonable directions the BOC entity may give from time to time (cl 6.2);

(e)    the service provider must provide all wages and other benefits to the labour hire personnel (cl 6.5);

(f)    the service provider must obtain the consent of BOC for any planned absences from ‘the place of work’ of labour hire personnel that exceed one day and follow given procedures in relation to such absences (cl 10, sch 6);

(g)    as to work health and safety, the service provider must comply with obligations imposed on it, including statutory obligations, and including but not limited to job assessments, employee consultation and work method statements, and must consult with BOC in a manner that will enable it to similarly comply with its obligations (cl 24);

(h)    the service provider must take all reasonable steps to ensure the labour hire personnel perform their work in the manner reasonably required by BOC and with due care and skill (sch 6);

(i)    BOC has primary responsibility for the day-to-day allocation of tasks to labour hire personnel and to consider and approve all leave requests (sch 6);

(j)    in the context of health, safety and environment obligations, the service provider shall require its labour hire personnel to comply with all requirements of BOC’s management systems, including procedures, work instructions and other requirements (sch 8 – ‘Zero Harm Requirement for Labour Hire Management’); and

(k)    labour hire personnel shall be provided with the appropriate supervision and instruction by BOC as to the outcomes of the services at a BOC site. In the event of any change to the job outcomes the service provider shall be notified prior to that change, and ‘the service provider retains control of the labour hire personnel’ (sch 8).

The events

21    Between 4 March 2025 and 8 May 2025 Ms Darlington-Thomas made numerous requests to work from home on a temporary basis while she prepared for and recovered from abdominal surgery. She had no express contractual right to work from home. She understood that other people in office positions at Elgas were allowed to work from home. She could avoid commuting by working from home and (it was suggested) she could sit and stand while undertaking her tasks at home in a manner not open to her in the office. She sought to facilitate delivery of a computer to her house. This was in the context that she was not entitled to paid sick leave and if she were unable to work, she would have no income at that time.

22    A considerable body of emails written by or received by Ms Darlington-Thomas were in evidence, although it is apparent that separately there must have been communications between Elgas and Zoom about Ms Darlington-Thomas’s position (so much is apparent from at least the terms of the 8 May 2025 email from Zoom to Ms Darlington-Thomas). These other communications were not in evidence.

23    I will summarise some of the emails in evidence.

24    Ms Darlington-Thomas first wrote to Elgas on 4 March 2025 asking that she be permitted to work from home due to a medical condition, which she said caused significant pain ‘that is worsened by prolonged sitting at a desk or commuting.’ She said she needed to work remotely for three weeks leading up to a surgery and would require continued arrangements post-surgery for an unspecified period.

25    On the same day Elgas replied telling her to discuss her request directly with Zoom as she was employed by them. Ms Darlington-Thomas forwarded her email to Elgas to Zoom.

26    Ms Darlington-Thomas also lodged a ticket through an online portal run by Linde Employee Services (which appears to be related in some manner to the BOC group) on 4 March 2024 seeking clarification of her employee status and the process regarding her request to work from home. Linde also directed her to Zoom.

27    On 5 March 2025 Zoom replied to Ms Darlington-Thomas stating that the information provided did not give them enough detail to properly assess her request. Zoom requested Ms Darlington-Thomas arrange a consultation with her doctor and provide a formal ‘fitness-for-work’ assessment.

28    Ms Darlington-Thomas provided the medical information requested by Zoom.

29    On 11 March 2025 Zoom emailed Ms Darlington-Thomas acknowledging receipt of the medical information. Zoom noted that ‘as per Fair Work Australia guidelines’ Zoom had 21 days to review and respond to her request.

30    Ms Darlington-Thomas replied to Zoom later that day asking for a more speedy response. She also asked whether Zoom would be taking into account the recovery from surgery when she would be unable to attend the office, or whether they would only consider the period up to the time of the surgery.

31    On 12 March 2025 Zoom emailed Ms Darlington-Thomas stating that ‘at this stage, we are unable to provide an ETA for the assessment of your request’. Zoom added that ‘as you are currently unfit for work, we encourage you to focus on your health…in the meantime, we will continue reviewing your request and will update you accordingly’.

32    On 19 March 2025 Ms Darlington-Thomas emailed Zoom stating that her expected hospital stay was 7 days from 24 March 2025 and that the expected recovery would be a total of 6 weeks, with the doctor reviewing whether she could work from home 14 days after the surgery. She enquired whether she would need to lodge her request again 14 days after the surgery, and whether this would mean another 21-day wait for approval.

33    On 20 March 2025 Ms Darlington-Thomas lodged a complaint with the AHRC against Zoom and Elgas in relation to its perceived failure to address her request.

34    On 20 March 2025 Zoom emailed Ms Darlington-Thomas confirming that a post-surgery request would be treated as a new request and the standard 21-day timeframe for a response would apply.

35    On 24 March 2025 Ms Darlington-Thomas underwent surgery.

36    On 8 April 2025 Zoom emailed Ms Darlington-Thomas requesting further information about medication, and whether it might adversely affect her ability to perform her duties and preclude her from working at home. Further, it sought information about the hours she intended to work, and requested an updated medical report. Zoom also asked her to complete an ergonomic assessment and confirm that her work area at home would be safe and meet the same standards as she would expect at her usual workplace at Elgas.

37    On 11 April 2025 Ms Darlington-Thomas sent an email to Zoom responding and attaching a medical report. She queried why Zoom had not sought the additional information when she first made her request.

38    On 15 April 2025 Zoom replied to Ms Darlington-Thomas stating that they would forward the information to the relevant department and ‘circle back’ to her once they had received an update.

39    On 22 April 2025 Zoom emailed Ms Darlington-Thomas requesting an updated medical certificate to support her working from home request and that she complete a checklist. Ms Darlington-Thomas emailed Zoom with her responses to the checklist the following day and said she would request a new report from her doctor.

40    It is apparent that there then was a phone call between Mr Stuart Mayne (director of Linde for Western Australia) and Ms Darlington-Thomas in which she was told that ‘working from home is not something [BOC/Linde/Elgas] want to do’.

41    On 28 April 2025 Ms Darlington-Thomas submitted a return-to-work plan from her doctor to Zoom, Linde and Elgas. She informed them that a colleague had agreed to drop off computer equipment to her so that she could begin working from home.

42    Mr Mayne emailed her on receipt (copied to Zoom and Elgas) referring to the phone call and said:

As we discussed last week on the phone, the working form home aspect is not something we want to do. My preference is that you rest until you can get back to the office.

We will need a medical clearance from yourself to ensure you are right to come back to work…

43    On 1 May 2025 Ms Darlington-Thomas sent an email to Linde, Zoom and Elgas requesting further clarification regarding her request to work from home, observing that other employees (including a team leader) had been permitted to work from home and she wanted to understand why the same accommodation had not been extended to her, as it appeared the infrastructure permitting such course existed. She requested a clear explanation of the refusal to deny her request. Ms Darlington-Thomas added that if the decision to deny her request stemmed from Zoom, she had not been informed of any refusal on its part directly, and that she had provided all required documentation to support her application.

44    On 7 May 2025 Ms Darlington-Thomas sent an email to Linde, Zoom and Elgas attaching a medical certificate and outlining that she would not be able to return to the office as planned but had a further medical review on 26 May 2025. She asked for a response to her previous email and renewed her request to work from home.

45    On 8 May 2025 Zoom sent the ‘direction’ email to Ms Darlington-Thomas stating that Zoom had been directed by Elgas that Ms Darlington-Thomas was not to return to the Canning Vale site.

46    The emails tend to disclose that Ms Darlington-Thomas faced some difficulty in obtaining timely answers or clear guidance as to her position. They also disclose that both Zoom and Elgas (and Linde on behalf of Elgas) were communicating at times with each other and with Ms Darlington-Thomas about the various requests she made to work from home.

Basis for application for leave to proceed

47    Ms Darlington-Thomas does not contend that her employment with Zoom was wrongly terminated. She proceeds on the basis that Zoom was her employer and it was the assignment with Elgas that was terminated, rather than her employment with Zoom. Her discrimination claim is founded not on termination of the assignment but on the refusal of Elgas to permit her to work from home or otherwise make reasonable adjustments to allow her to work from home on a temporary basis prior to and while she recovered from surgery.

48    Ms Darlington-Thomas set out in her application that leave to proceed should be granted because:

(a)    the claim against Zoom is reasonably arguable and not lacking in substance;

(b)    Zoom was her employer and responsible for managing the employment relationship;

(c)    she communicated directly with Zoom regarding her disability and request for reasonable adjustments;

(d)    Zoom was directly involved in the conduct giving rise to the discrimination;

(e)    Zoom failed to respond, failed to make any decision, and failed to discharge its obligations under the Disability Discrimination Act;

(f)    the AHRC’s decision was based on a narrow assessment of control and did not fully consider Zoom’s obligations as employer;

(g)    the claims against Zoom and Elgas arise out of the same facts and circumstances;

(h)    it is in the interests of justice that all issues be determined in a single proceeding; and

(i)    Zoom’s involvement was material to the alleged contraventions [by Elgas] and it is appropriate that liability be determined in the same proceeding.

49    It is apparent from the above that Ms Darlington-Thomas seeks to bring a claim against Zoom relating to the way it managed or treated her work from home requests, but also seeks to claim against Zoom in relation to its involvement in the matters that underlie her discrimination claim against Elgas.

50    Ms Darlington-Thomas seeks compensation, costs and declarations that Elgas and Zoom engaged in unlawful discrimination.

Statutory context – disability discrimination

51    Sections 5 and 6 of the Disability Discrimination Act provide definitions of ‘discrimination’. Section 5 provides:

Direct disability discrimination

(1)     For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)     For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)     the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)     the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3)    For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

52    Section 6 of the Disability Discrimination Act provides:

Indirect disability discrimination

(1)     For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)     the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)     because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)     the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2)     For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)     the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)     because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)     the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)     Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)     For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

53    Section 15 of the Disability Discrimination Act addresses discrimination by an employer.

54    Section 17 of the Disability Discrimination Act addresses discrimination against a contract worker.

55    Section 21 of the Disability Discrimination Act addresses discrimination by an employment agency.

56    Section 21A of the Disability Discrimination Act provides an exception whereby it is not unlawful for a person to discriminate against another person on the ground of disability if because of the disability the aggrieved person would not be able to carry out the ‘inherent requirements’ of the particular task, even if reasonable adjustments were made.

57    Sections 15, 17 and 21 fall within Div 1 of Pt 2 of the Disability Discrimination Act. This is relevant to the potential application of s 122 of the same Act.

58    Ms Darlington-Thomas’s reference in her application to Zoom being ‘involved’ apparently calls in aid s 122 of the Disability Discrimination Act which provides:

Liability of persons involved in unlawful acts

A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2, 2A, 3 or 6 of Part 2 is, for the purposes of this Act, taken also to have done the act.

Principles – applications for leave

59    In James v WorkPower Inc [2018] FCA 2083, Mortimer J made the following observations as to the matters relevant to the exercise of the discretion to grant leave:

[31]    Like other judicial discretions empowering leave to be granted to a party to take a step in a proceeding … or to issue a proceeding …, the interests of the administration of justice will be a governing consideration in the way the discretion falls to be exercised. However, how the assessment of what is in the interests of the administration of justice is to be undertaken will vary depending on the nature of the power in issue, and the circumstances which give rise to a request for its exercise. Here, as the respondent submits, the imposition of a leave requirement in certain circumstances by the amendments to s 46PO in 2017 had a clear purpose. Any consideration of where the interests of the administration of justice lie must recognise and give weight to that purpose.

[32]    The purpose of the leave discretion, taking into account its text and context, is to provide a filter. It removes what was previously an entitlement to bring a proceeding in this Court once the Commission has terminated a complaint. It sits alongside the limits which have always been imposed by s 46PO(3), themselves aimed at constraining the subject matter of proceedings under s 46PO to the substance of what was before the Commission.

60    Her Honour concluded:

[37]    I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

[38]    There may be a range of other permissible considerations including:

(1)    the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;

(2)    the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);

(3)    how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;

(4)    whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;

(5)    whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;

(6)    the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;

(7)    whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and

(8)    other factors that are often considered in leave applications - such as prejudice to a party.

[39]    As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing: see my comments to similar effect in Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [28]-[31] and in DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037 at [27]. It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant's underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules.

61    These statements have been applied and further explained on a number of occasions: for example, Wilson v Britten-Jones (No 2) [2020] FCA 1290 at [86]-[90] (Abraham J); and Lu v University of New South Wales (No 2) [2022] FCA 1010 at [96]-[100] (Katzmann J).

62    These statements were also approved by the Full Court in Weir v Telstra Ltd [2023] FCAFC 196; (2023) 301 FCR 26 at [56] (Collier ACJ, Rangiah and Thomas JJ), noting at [58] that the nature of the exercise might be qualified by the reasoning of the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579. That is, the Court may appropriately engage in more than an ‘impressionistic assessment of the merits’ and instead conduct a ‘detailed evaluation of the merits’ in certain circumstances, such as where there is lengthy, unexplained delay. See Przybylowski v Commonwealth of Australia [2025] FCA 862 at [15]-[17] (Stewart J). This is not such a matter, and the parties proceeded on the basis that it was not appropriate that I engage in a detailed evaluation in order to determine the leave application in this case.

Zoom’s position

63    Zoom submitted that based on the exchanges of emails in evidence it was apparent that Elgas contended that it was an inherent requirement that Ms Darlington-Thomas undertake her accounts receivable role from site. Zoom submitted that the withdrawal of an employee from an assignment in response to a directive from a client cannot constitute disability discrimination, because it was not open to Zoom to make any adjustments. It submitted that it made inquiries from Ms Darlington-Thomas because it needed to understand her medical condition so it could determine whether she could safely work with or without adjustments, and that it did so because of its obligations under work health and safety legislation. It submitted that the complaints made against it by Ms Darlington-Thomas were really as to processes and that its processes were too slow, and that it deferred making any assessment of whether she could work from home. It contends that the decision of the AHRC was undoubtedly correct. It also denies any potential liability under s 122 of the Disability Discrimination Act on the basis, it says, it was not in a position to ‘permit’ any conduct or decision by Elgas: Elgas, it said, controlled the work conditions of Ms Darlington-Thomas.

Consideration

64    Having regard to the nature of the Court’s task in assessing whether leave should be granted as discussed in James v WorkPower, I am persuaded that Ms Darlington-Thomas has met the relatively low threshold for leave to be granted to proceed with her application against Zoom. I do not suggest that the claim is by any means compelling, and Ms Darlington-Thomas will need to carefully consider the precise ambit of her claim, some insufficiencies in the way the claims are currently enunciated, and the evidentiary requirements she must meet. However, I have taken the following into account in concluding that her claim is neither misconceived nor fanciful, and that it is reasonably arguable within the meaning of James v WorkPower.

65    I observe that it is not appropriate at this stage to give detailed consideration and determination of the merits of the particular arguments, where leave is to be granted and (absent resolution) there will be full argument in the future. Nonetheless, it is apparent from the material to which I was taken, that the nature of alleged unlawful discrimination is identified.

66    The manner in which both Elgas and Zoom addressed the request that Ms Darlington-Thomas work from home on a temporary basis are intertwined, as the emails in evidence reveal. There is a factual issue raised on the materials as to the terms of the assignment under which Ms Darlington-Thomas worked for Elgas; for example, whether there was any express (or implied) inherent requirement that the accounts receivable job be undertaken on-site.

67    Other factual issues raised include whether other persons in similar positions with Elgas were permitted to work from home and on what basis.

68    It is also apparent from the documentation that there may be other significant factual issues in dispute, such as why Zoom undertook a range of medical ergonomic assessments that encompassed potentially working from home in circumstances where the position of Elgas was (on Elgas’s case as described by Zoom) apparently binary; that is Elgas required the role to be undertaken on-site. If that were in fact Elgas’s position, questions arise as to the purpose of many of the communications between Zoom, Elgas and Ms Darlington-Thomas. If, on the other hand, as the email from Mr Mayne suggests, working on site was only its preference, then there may have been scope for a different outcome and legitimate questions may arise as to reasonable adjustments.

69    It is apparent (and unsurprising) that Elgas and Zoom were separately in communication, as the ultimate (non-disclosed) direction from Elgas to Zoom apparently confirms. Ms Darlington-Thomas was not privy to all such communications, which has limited her capacity to more exhaustively deal with some of these matters.

70    There is no doubt that Ms Darlington-Thomas will need to establish the factual basis of her claims. However, on the basis of the materials relied upon in this application, the task of proving her claim against Zoom is likely to overlap with and also involve understanding and establishing the factual basis of the claim against Elgas. The facts are intertwined, as the emails reveal.

71    There are also areas of potential argument as to the meaning of at least some aspects of the legislative provisions, and if established, their application to the facts. In particular, having regard to Zoom’s submissions, one matter that clearly might be in issue is the scope of s 122, and whether through Zoom’s involvement in the communications with Elgas it in some manner ‘permitted’ any disability discrimination by Elgas. In this context Ms Darlington-Thomas has referred to the apparent prevarication of Zoom in confirming or making a decision on her requests (which she was directed to make to Zoom although it did not dictate the terms of her day-to-day role with Elgas) and the lack of clarity as to the role Zoom played in providing information to Elgas.

72    There are also areas of potential argument as to the manner in which the Labour Hire Agreement operates with the Casual Employment Agreement. It is not necessary to address all of the provisions I have extracted above. They are useful in providing context to these reasons and the respective relationships. However, at minimum, it might be said that Zoom’s contention that it is effectively distanced from all control over Ms Darlington-Thomas might be tempered by Zoom’s joint obligations relating to work health and safety, and its communications and cooperation with Elgas in this regard. For example, Ms Darlington-Thomas emphasised that sch 8 of the Labour Hire Agreement provides that a service provider (such as Zoom) ‘retains control’ of the labour hire personnel (which included her). Clause 12.1 of the Casual Employment Agreement refers to both Elgas and Zoom giving directions. I do not suggest such matters will necessarily be compelling in the end, but it cannot be said at this point that they are irrelevant.

73    There are other considerations referred to in James v WorkPower to briefly address.

74    In relation to the circumstances of the parties, it is apparent that because Ms Darlington-Thomas was not permitted to work from home, she was unable to work and earn income in that period. At the least, there was an apparent financial consequence. Zoom was responsible for her remuneration. Zoom contends that it should not be obliged to commit time and resources to a claim that has ‘no prospect of success’, and that the Court’s resources should not be diverted to deal with ‘claims that are not arguable’.

75    I do not find Zoom’s submission persuasive in this regard. As I have formed the view that the threshold for the claim being ‘reasonably arguable’ is met, I must weigh that against the usual costs risks faced by litigants. There is no evidence that the costs of the proceeding will cause Zoom financial hardship over and above such usual costs risks.

76    In relation to resources more generally, I note that, unless the matter is resolved before trial (and it is hoped that a mediation might bring about such a result), the Court will be obliged to hear and determine the dispute against Elgas in any event. If leave is granted, the claim against Zoom will proceed concurrently with the claim against Elgas and many of the same facts and legal issues arise. They are intertwined as previously addressed. It is not a case where refusal of leave will avoid the involvement of Zoom, even as witnesses, and nor is it a case where refusal of leave will obviate a trial proceeding.

77    Whilst Zoom contends that no matters of public importance arise, the question of contractor rights and working from home might be seen as having some public interest, even if limited. I consider the issue to be neutral in this case.

78    As to the consideration given to the claims by the AHRC, it is unclear what materials were before the AHRC. For example, I have not seen the evidence referred to by the AHRC in its reasons extracted above that ‘Elgas has confirmed that they expressly required Zoom to ensure that the accounts receivable services to be provided by them must be delivered on-site and not remotely as an inherent requirement of the position’. Whether such evidence exists is now in issue. Therefore, I am not satisfied that the AHRC comprehensively dealt with the claims against Zoom and came to a conclusion in a manner that indicates the claim clearly has no merit.

79    I agree with Zoom that other issues such as attempts at external resolution, and delay as referred to in James v WorkPower are neutral factors in this case before me.

Conclusion

80    It follows that I am satisfied that it is appropriate to grant leave to Ms Darlington-Thomas to bring a proceeding against Zoom pursuant to s 46PO of the Australian Human Rights Commission Act.

81    I remain of the view that there is benefit in the parties attempting to resolve this matter out of Court and accordingly I direct that the matter be referred to a mediation before further steps in the proceeding are undertaken.

Associate:

Dated:    21 October 2026