Ms Chloe Etchells v Downer Professional Services Pty Ltd - [2025] FWC 2676

[2025] FWC 2676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Chloe Etchells

Downer Professional Services Pty Ltd

(C2025/6635)

COMMISSIONER WALKADEN

SYDNEY, 9 SEPTEMBER 2025

Application to deal with contraventions involving dismissal – extension of time – extension of time refused

This decision determines an application made by Ms Chloe Etchells for an extension of time pursuant to section 366(2) of the Fair Work Act 2009 (Cth) (FW Act) to make a general protections dismissal dispute application (Dismissal Application) against her former employer. The Dismissal Application filed by Ms Etchells identified Downer Professional Services Pty Ltd as the Respondent. The employer of Ms Etchells was Downer EDI Services Pty Ltd. Pursuant to section 586 of the FW Act, the Dismissal Application was corrected or amended, without objection, to identify Downer EDI Services Pty Ltd (Downer / the Respondent) as the Respondent. The Dismissal Application is an application made under section 365 of the FW Act.
The application for an extension of time was sought in circumstances where Ms Etchells filed the Dismissal Application on 9 July 2025,[1] which was 35 days after the date that Ms Etchells’ dismissal took effect. It was accepted by the parties that Ms Etchells’ dismissal took effect on 4 June 2025.[2] Ms Etchells accepts that her Dismissal Application was filed outside of the 21 day period specified in section 366(1)(a) of the FW Act and for her Dismissal Application to proceed that an extension of time is required under section 366(2) of the FW Act.
On 8 September 2025, Ms Etchells’ application for an extension of time was the subject of a hearing before me. Ms Etchells appeared for herself. Ms Kate McFarlane who is employed as Legal Counsel with Respondent appeared for the Respondent. Ms Etchells relied upon a witness statement from her partner, Lachlan Langmead,[3] her own witness statement,[4] supporting documents and an outline of submissions.[5] Ms Etchells was cross-examined. The Respondent relied upon its written submissions.[6] The parties made verbal submissions at the hearing. All the evidence and submissions made by the parties has been considered.
For the reasons explained below, I have decided not to grant the extension of time and dismiss the Dismissal Application.

Legislation

Section 366(1) of the FW Act provides that an application made under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Fair Work Commission allows under subsection (2)

Section 366(2) provides that the Fair Work Commission (Commission) may allow a further period if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 2676
Decision Date: 9 SEPTEMBER 2025

CaseChat Overview and Summary

The Fair Work Commission heard an application by Ms Chloe Etchells for an extension of time to file a dismissal dispute under section 365 of the Fair Work Act 2009 (FW Act). Ms Etchells sought an extension to file her application 35 days after the dismissal took effect on 4 June 2025. The application was filed on 9 July 2025. Section 366(1)(a) of the FW Act requires that an application be made within 21 days after dismissal. Ms Etchells accepted that her application was outside this period and sought an extension under section 366(2) of the FW Act. The Commission considered the application on 8 September 2025.

The legal issues the Commission had to decide were whether there were exceptional circumstances to warrant an extension of time. The Commission considered each of the factors set out in section 366(2) of the FW Act, including the reason for the delay, any action taken by Ms Etchells to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between Ms Etchells and other persons in a similar position. The Commission found that the reasons for the delay were not exceptional, that Ms Etchells had not taken any action to dispute the dismissal, that the employer had not suffered any prejudice, and that the merits of the application were a neutral factor. The Commission found that the employer had not suffered any prejudice, and that the fairness factor was a neutral factor.

The Commission found that the reasons for the delay were not exceptional. Ms Etchells had misunderstood the time limit, but the Commission found that a good faith misunderstanding is not exceptional. The Commission also found that the emotional strain, stress and mental health challenges experienced by Ms Etchells were not exceptional, and that the death of a pet and veterinary costs are not exceptional circumstances. The Commission found that the absence of prejudice to the employer and the neutral nature of the merits and fairness factors did not support a finding of exceptional circumstances. The Commission concluded that there were no exceptional circumstances to warrant an extension of time and dismissed the application. The Commission will issue an order to that effect separately.

Orders