Hausmeister v Willoughby Council

The Decision

1. The Decision was handed down on 26 October 2022. To place the discussion which follows into context, it is necessary to reproduce the Decision at some length. Having summarised the evidence and submissions advanced by the parties, and outlining the legal issues to which the Council's objection gave rise, Commissioner Muir observed: "21. In addition to the essentially factual matters set out in her initial submissions, the applicant's legal position was, in summary, that: (1) She had attempted to file her application on time but had misunderstood the jurisdiction in which she should file; (2) She was one day late; and (3) Her mental state following her dismissal, including because of events leading up to her dismissal, was such that she had difficulty completing her application on time. … Consideration 26. The position of the applicant can fairly be summarised by the matters set out at [21] above. 27. The applicant further submits that the respondent will suffer no hardship if her application is accepted out of time. The applicant submits that the respondent has accepted this by not making any submission on this point. 28. The applicant submits that there is no basis on which it could be said that the prospects of her application succeeding should weigh against her application being accepted. 29. I note that the applicant did not expressly submit that she had a strong case, although various matters were advanced which I understood were intended to, at the least, distinguish the applicant's case from other largely similar cases decided against applicants in those matters. 30. In summary these matters asserted that restrictions imposed by the New South Wales Government relating to COVID-19 were being relaxed at the time the applicant was dismissed. 31. I do not accept that the respondent will suffer no prejudice, or that it is fair to rely on the respondent's failure to say anything about this point in their submissions. The applicant was three months late filing her submission in reply and this has effectively doubled the gap which would otherwise have existed between the end of conciliation and this point of the proceedings. 32. I find this is a factor against the applicant. Clearly the longer the time between the dismissal and the hearing the more difficulty there is in gathering evidence and in people's recollections. The delay is unequivocally the result of the applicant's conduct. 33. I do not accept that the difference between the regime applicable under the FW Act and the IR Act is so different that nothing can be taken from decisions of the FWC about dismissal of unvaccinated employees based on public health orders. 34. Individual circumstances need to be accounted for, and clearly it cannot be said that the applicant's case is bound to fail, but there is no evidence or suggestion that there is anything about the applicant's circumstances which would put her outside the body of cases nationally concerning workers covered by a public health order requiring them to be vaccinated. 35. The submission that restrictions were in the process of being lifted is misconceived for multiple reasons: (1) Firstly, the submission attempts to conflate the easing of mask requirements with the central issue in this case of a vaccine requirement. Paragraph 32 of the applicant's reply submissions are therefore directed at irrelevant issues. (2) Secondly, the reply submissions attempt to re-analyse the circumstances as they existed at the date of dismissal in light of subsequent events, without acknowledging that the Commission's task is to determine the fairness or unfairness of the dismissal at the date it was made. As the applicant submits, it was some two months after her dismissal that the public health orders requiring her to be vaccinated came to an end. (3) There was an attempt to impugn the respondent's decision based on an assertion it was taken because the respondent had somehow surmised that the vaccination requirement would be lifted. Not only was this submission only raised in reply, when the respondent had no opportunity to respond to it, the submission implicitly supposes the respondent's overarching desire was to dismiss the applicant, regardless of the public health order. (4) The submission ignores the alternative, and at least as likely hypothesis, that had the respondent known or suspected the vaccination requirement would be lifted, it would not have needed to dismiss the applicant. She had after all worked for the respondent for 14 years. (5) The applicant's evidence in reply did not address the direct evidence of the respondent that the applicant had no special or particular reason not to be vaccinated, and that she told the respondent she would not under any circumstances be vaccinated. 36. The applicant's explanation as to being 24 hours late in filing is clear and sound on its face. She was preparing to file an application to the FWC and discovered late that she should file an application to the IRC. 37. The applicant's reply submissions dismiss the respondent's submissions on the timing as misconceived. I cannot accept the respondent's submissions should be dismissed so readily. 38. There is, as the respondent submits, no evidence that the applicant was ready and able to file an application with the FWC by the date she states she knew was the presumptive deadline. As the respondent submits, the applicant knew there was a 21-day time limit, she merely had the destination for that application wrong. 39. We do not know the time the applicant rang the IRC, or the time she discovered the IRC was the proper jurisdiction. The applicant's submissions in reply appear to surmise that the time of the call was 3pm, but this is not explicit in the applicant's evidence. 40. By the time of her submissions in reply the applicant was legally represented, and if her submissions are to rely on such specifics, it would be appropriate to have provided specific evidence. Further evidence in reply was submitted. 41. Similarly, the submissions in reply assert that the applicant was not told that she could file her application in a Local Court. In fact, the evidence of the applicant is silent on this point. There is no evidence as to whether the applicant was told this or not told this. Again, as the applicant was legally represented by the time of her reply evidence, it could have been expected that if she was able to give evidence that she was not told about filing in a Local Court she would have put on specific evidence of this. 42. The applicant submitted that the termination has caused 'significant financial hardship' to her and her family. No elaboration or quantification beyond that submission was provided. 43. On the material submitted, I can see no hardship to the applicant beyond that of any applicant whose out of time application is declined, which it is accepted is nevertheless real. Outcome 44. Considering each of the factors set out in s 85(3), I consider that: (1) The applicant's explanation for her lateness is moderately in her favour, given she was then unrepresented. In isolation it would warrant exercising discretion in her favour; (2) On the question of hardship each way, the balance is against the applicant; and (3) Contrary to the submissions of the applicant, the employer's conduct in not acting swiftly to dismiss the applicant was if anything likely a factor in the respondent's favour. Nevertheless, I find the conduct of the employer in this case to be largely a neutral factor for current purposes. 45. As to other matters, the three-month delay of the applicant in complying with the final step in her application for leave to proceed, despite repeated attempts by the IRC to have the matter progress, is a moderate factor against the applicant. 46. In totality, the statutory and other factors do not constitute a sufficient reason to accept the Unfair Dismissal Application out of time. On the contrary, the totality of matters on balance favours the Commission declining to exercise discretion to allow the late Unfair Dismissal Application to proceed."

The appeal

1. On 16 November 2022 Ms Hausmeister filed an Application for Leave to Appeal and Appeal pursuant to s 187 of the Act. The grounds of appeal asserted by Ms Hausmeister (removing one ground which was abandoned during the course of the appeal proceedings) were set out as follows: "H. Grounds of the appeal are: 1. The Commissioner erred in fact and law at [36] to [41] in finding that the Appellant's reason for filing her application 24 hours out of time was not substantiated upon the evidence. 2. The Commissioner erred in law and fact at [31] and [32] in finding that the Respondent would suffer prejudice as a result of the Appellant filing her application 24 hours out of time when: a. The Respondent did not raise prejudice in submissions; b. The Respondent did not advance any evidence as to prejudice. 3. The Commissioner denied procedural fairness to the Appellant at [31] and [35(3)] when he found that the Respondent had suffered prejudice in the absence of submission or evidence advanced by the Respondent on the topic. The Commissioner should have given notice to the Appellant that he was considering making an adverse finding on the basis of prejudice. … 5. The Commissioner erred in law at [34] to [35] in: a. failing to find that the Applicant had established a prima facie case; b. unduly considering hypothetical defences (in the absence of evidence) against the Applicant's established prima facie case; c. making a determination about the prospects of the Applicant's case in the absence of evidence. 6. The Commissioner erred in fact at [42] and [43] when he found that there was 'no hardship to the applicant beyond that of any applicant whose out of time application is declined'. The Commissioner erred in failing to take into account the Appellant's evidence of the significant decrease in her earnings following termination. 7. The Commissioner erred in failing to apply the guidance in Hamod v State of New South Wales & Anor [2011] NSWCA 375 that an unrepresented Appellant should not be penalised for her lack of knowledge of the jurisdiction of the Commission."

The law applying to appeals

1. Section 188 of the Act provides that an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
2. In Fraser v Commissioner of Fire and Rescue NSW [2022] NSWIRComm 1026 the Full Bench observed: "18. The applicable principles in deciding whether to grant leave are well settled and were summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10]-[11]. In summary: (1) an appeal under the Act is an appeal in the strict sense, and the Full Bench will only intervene to correct error; (2) leave will not be lightly or automatically granted, unless substantial issues of principle or law are raised, or there are otherwise wider implications for the jurisprudence of the Commission or the proper administration of justice; and (3) where an appeal primarily challenges finding of fact leave will rarely be granted."
3. If leave to appeal is granted, an appeal to a Full Bench "is not by way of a new hearing": s 191(1) of the Act. The Full Bench "cannot merely substitute its decision on the matter but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received": s 191(3).
4. The Decision involved the exercise by Commissioner Muir of the discretion conferred on the Commission by s 85(3) of the Act. It is not enough that the Full Bench might have exercised that discretion differently. For the appeal to succeed, Ms Hausmeister must show that Commissioner Muir failed to properly exercise the discretion committed to him: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10], citing Mace v Murray (1955) 92 CLR 370; [1955] HCA 2 and House v The King (1936) 55 CLR 499; [1936] HCA 40.

Consideration

1. Section 85 of the Act is relevantly in the following terms: 85 Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. … (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to - (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal.
2. The language of s 85(3) leads to three observations. First, it is a matter within the Commission's discretion whether to accept an application out of time. Second, to exercise that discretion the Commission must consider that there is sufficient reason to do so. Third, while the Commission is to have particular regard to the factors set out at s 85(3)(a)-(c), the matters to which the Commission might have regard in that respect are not limited to those factors.

Reason for the delay

1. Ground 1 of the appeal asserts error by the Commissioner in "finding that the Appellant's reason for filing her application 24 hours out of time was not substantiated upon the evidence". The Council submitted that the Commissioner in fact found to the opposite, noting his observation at [36] of the Decision that "[t]he applicant's explanation as to being 24 hours late in filing is clear and sound on its face".
2. Read in context, [36] of the Decision cannot be taken as a finding by the Commissioner that he accepted Ms Hausmeister's explanation for the delay. It does no more than outline the basis of that explanation. The Commissioner's use of the words "on its face" bears particular significance. At [37]-[41] of the Decision the Commissioner proceeded to call into question Ms Hausmeister's explanation, due to perceived deficiencies in her evidence including the lack of "specific" or "explicit" evidence.
3. The Commissioner stated at [38] that there was no evidence that Ms Hausmeister was ready and able to file an application with the Fair Work Commission by the date she knew was the presumptive deadline. He appears to have inferred that no such application was prepared.
4. Ms Hausmeister's evidence was that she had "worked on [her] application through Fair Work which [she] knew could be submitted online". If the Council sought to challenge that evidence, it could have called Ms Hausmeister for cross-examination. In the absence of such a challenge, there was no proper basis for the Commissioner to draw an adverse inference against Ms Hausmeister's version of events, simply on the basis that she did not produce the Fair Work Commission application itself.
5. The Commissioner stated at [39] that "[w]e do not know the time the applicant rang the IRC, or the time she discovered the IRC was the proper jurisdiction". He observed that Ms Hausmeister's submissions "surmise" that the time of the call was 3.00pm and appeared to criticise her evidence for not being "explicit" in this regard.
6. In her evidence, Ms Hausmeister stated that she became aware on 22 March 2022 that her unfair dismissal claim should be made to the Commission, rather than the Fair Work Commission. She stated that she "immediately rang the IRC office in Paramatta and told them [her] circumstances and was told they would be closing in an hour" (our emphasis).
7. The Industrial Registry is "open for business from 9am to 4pm on all business days": r 2.1(a) of the Industrial Relations Commission Rules 2022. In our view there was sufficient evidence to find that Ms Hausmeister placed a call to the Registry at or about 3.00pm on 22 March 2022, and that it was shortly before that call that she had become aware that the Commission was the proper jurisdiction in which to commence proceedings.
8. Contrary to the terms of ground 1 of the appeal, the Commissioner did not in terms find that Ms Hausmeister's explanation for the delay "was not substantiated upon the evidence". However, that is the effect of his reasoning. For the reasons set out above, we consider that the Commissioner erred. There was no cogent basis offered on which Ms Hausmeister's unchallenged evidence ought not to have been accepted.
9. On this basis, we were persuaded that ground 1 of the appeal had been made out.

Hardship/prejudice

1. It can be seen from [31], [32], [42], [43], [44(2)] and [45] of the Decision that the question of hardship, or "prejudice" to which the Commissioner also referred, featured prominently in his reasoning.
2. In ground 2 of the appeal, Ms Hausmeister contended that [31] of the Decision disclosed an error, in that Commissioner Muir conflated in his consideration under s 85(3)(b) of the Act the hardship that may have been caused to the Council by the delay in her filing the Application, with prejudice that the Council may have suffered as a result of her delay in filing her evidence and submissions in reply in respect of the Council's objection to the Commission determining the Application on the basis that it was filed out of time. The first was said to arise properly under s 85(3)(b), while the second was a matter for case management.
3. We agree that in the context of s 85 in its entirety, s 85(3)(b) is to be construed as requiring the Commission to have regard to any hardship that might be suffered by the employer as a result of the delay in the applicant filing their application. It would not extend to encompass other prejudice that may have been suffered by the employer as a consequence of the manner in which the applicant has thereafter conducted their case. As Ms Hausmeister submitted, other means are available to address poor case management by a party.
4. However, we do not consider that Commissioner Muir erred in this regard. It is apparent from [44] and [45] of the Decision that he regarded the delay in Ms Hausmeister filing her evidence and submissions in reply as an "other matter" which stood apart from his consideration of the "factors set out in s 85(3)".
5. We have some reservations as to the extent to which an applicant's case management would generally have a bearing on the determination of an application under s 85(3), particularly having regard to the powers which the Commission would have to address such matters under, for example, s 63(3)(a) of the Civil Procedure Act 2005 or r 12.7 of the Uniform Civil Procedure Rules 2005. That said, there is nothing on the terms of s 85 that would preclude a Commissioner from having regard to matters such as the applicant's compliance with directions and the manner in which they have prosecuted their claim.
6. The difficulty in the present case is that the Council led no evidence in the proceedings below as to hardship or prejudice, whether arising from the delay in filing the Application or Ms Hausmeister's delay in filing her evidence and submissions in reply. The factual matters to which the Commissioner referred at [31] and [45] of the Decision were not raised by the Council.
7. The Council also made no submissions in the proceedings below asserting hardship or prejudice. This is recognised at [31] of the Decision. The observations made by the Commissioner regarding the hardship or prejudice which the Council would suffer, seen particularly at [32] of the Decision, were not advanced by the Council itself.
8. The observations of the Commissioner at [31]-[32] of the Decision, including his conclusion not to accept Ms Hausmeister's contention that the Council would suffer no prejudice as a result of the Application being accepted out of time, are premised on Ms Hausmeister's delay in filing her reply material. We acknowledge that the Commissioner was entitled to rely on his knowledge as to the progress of the proceedings. There was, however, no evidentiary basis for the Commissioner to find that this would cause the Council prejudice, including for the reasons set out at [32].
9. There was similarly no evidence to support the conclusion reached at [44(2)] of the Decision. In so far as the Commissioner is to be seen as confining that conclusion to his consideration under s 85(3)(b) of the Act, there was no suggestion that the delay in the filing of the Application would cause the Council hardship. There was no evidence of hardship "each way" that allowed for the balancing to which the Commissioner referred.
10. For these reasons, we were persuaded that Ms Hausmeister had made out ground 2 of the appeal.

Ms Hausmeister's prospects of success

1. It is reasonably clear that Commissioner Muir considered that Ms Hausmeister had an arguable case. This flows from his observation at [34] of the Decision that "clearly it cannot be said that the applicant's case is bound to fail". It followed that the appeal could not, in our view, succeed on ground 5a. of the appeal.
2. However, the balance of paragraphs [34] and [35] of the Decision reveal that the Commissioner determined that Ms Hausmeister nevertheless had limited prospects of success on the Application, and that this informed his determination not to accept the Application out of time. Two matters arise from the Commissioner's analysis.
3. First, and most significantly, we accepted Ms Hausmeister's submissions that the Commissioner considered her prospects of success on the Application by reference to hypothetical defences which the Council might run, but which it had not put forward. The arguments advanced by the Commissioner at [35] of the Decision were not advanced by the Council.
4. The evidence led by the Council in the proceedings below was confined, in the main, to the circumstances culminating in Ms Hausmeister's dismissal. Its submissions in relation to prospects of success were limited to restating its evidence and drawing attention to authorities in which Public Health Orders had been held to be valid or in which employee non-compliance with such Orders had been held to justify termination of employment.
5. The Council's submissions in the proceedings below as to Ms Hausmeister's prospects of success were otherwise limited to the following: "26. The Applicant refused to be vaccinated or produce a medical contraindication as required and the termination is therefore not Harsh, Unjust or Unreasonable. … 30. The Applicant has no prospects of success and no arguable case, because the Respondent was required to ensure that the Applicant was vaccinated or provide a medical contraindication certificate pursuant to the NSW Health Orders… The Applicant refused to get vaccinated or provide a medical confrontation as required by the NSW Health Orders... 31. In the case of the Vijayaratnam v New South Wales Department of Education and Training [2010] NSWIRComm 1034, citing another unreported case of Waine v BHP Steel [Matter No. IRC 3138 of 2001] at [19] that: '…if an out of time Part 6 applicant is unlikely to succeed, it goes without saying that to refuse his claim will not, in fact, constitute the type of hardship to the dismissed employee referred to in s 85(3). It would do nothing more than delay the inevitable and (avoid) considerable cost and inconvenience to both parties' (emphasis added). 32. Therefore, to grant an extension of time will just delay the inevitable as the Applicants application is unlikely to succeed." (Sic, emphasis in original)
6. Second, the Commissioner appears to have offered a largely concluded view as to the likely outcome of the proceedings in the absence of any material evidence from Ms Hausmeister as to the merits of her Application. Her evidence was confined to the reasons for her delay in filing the Application, her earnings subsequent to her dismissal by the Council, and a press release issued by the Honourable Brad Hazzard, Minister for Health, on 17 February 2022. The submissions she advanced below traversed some of the arguments that might be advanced at a substantive hearing, which we infer drew in part from the evidence led by the Council. This was sufficient for the Commissioner to find that Ms Hausmeister's case was not "bound to fail", but there was a limited basis on which he could proceed to consider the ultimate prospects of success on the Application.
7. In Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145; [2003] NSWIRComm 139 ("Hurrell") the Full Bench observed: "21. In cases where the acceptance of a late application is determined as a preliminary issue, it may be appropriate to consider whether the applicant has an arguable case and the applicant's prospects of success. While it is inappropriate effectively to decide the substantive issue in interlocutory proceedings, whether there is an arguable case and the parties' prospects of success are matters appropriately considered in determining whether a 'sufficient reason' has been established to accept an application out of time. This is particularly so, given the subject matter of an application for relief against an allegedly unfair dismissal, and the recognition that a refusal to extend time would finally determine the proceedings and prevent the hearing of such an application on its merits. 22. Indeed, it has been held that a consideration of the prospects of success may be a necessary, although not determinative, consideration in the exercise of discretion: Brady at 269. Moreover, the parties should be given an opportunity to address on any such prospects, where they arise as relevant discretionary considerations: Sebastian v Roads and Traffic Authority of New South Wales (1995) 62 IR 190 at 193 - 194. It should be emphasised, however, that any assessment of an arguable case or an applicant's prospects of success, will, of necessity be made in the absence of all the relevant evidence and, as such, can be only preliminary in nature."
8. We observe that immediately following the passage in Vijayaratnam v New South Wales Department of Education and Training [2010] NSWIRComm 1034 on which the Council relied below, Commissioner Connor quoted these passages from Hurrell.
9. The approach adopted by the Commissioner was not consistent with that articulated by the Full Bench in Hurrell. Having ostensibly found that Ms Hausmeister had an arguable case, he proceeded "effectively to decide the substantive issue" in a manner that does not appear to be "preliminary in nature". He did this without properly giving the parties an opportunity to address on the prospects of success on the Application, in particular by considering matters that did not arise directly from the positions advanced by the parties in their evidence and submissions.
10. For these reasons we were persuaded that grounds 5b. and c. had been substantiated.

Other grounds

1. In light of our decision in respect of grounds 1, 2 and 5 of the appeal, it is unnecessary to consider the other appeal grounds.

Conclusion

1. Having found grounds 1, 2 and 5 of the appeal to have been substantiated, we were satisfied that it was in the public interest that leave to appeal should be granted and the appeal upheld.

Acceptance of Application out of time

1. Having reached that decision, we determined that it was appropriate to order that the Application be accepted out of time. In many ways this flows from our finding in respect of ground 1 of the appeal.
2. A consideration of the factors in s 85(3) of the Act supports the Application being accepted out of time. The delay in filing the Application was only one day. It was caused in large part by Ms Hausmeister mistakenly thinking that it was to be made to the Fair Work Commission. As she submitted, this is such a common misunderstanding that it is recognised in the terms of s 85(2) of the Act. It was relevant that there was evidence that since her dismissal by the Council, Ms Hausmeister had been suffering from mental health issues, which may have contributed to the delay. Further, for the reasons already explored, there was no basis on which the Full Bench could find that accepting the Application out of time would cause any hardship to the Council. It was common ground that the factor in s 85(3)(c) was "neutral" in this case.
3. We agree with Commissioner Muir's observation that the Application is not "bound to fail". While the weight of authority, in the Commission and in other jurisdictions, might be against her, the submissions that Ms Hausmeister advanced below reveal arguments that she is entitled to have tested before the Commission.
4. It was appropriate, in all the circumstances of the case, that the Application be accepted out of time and that the matter be returned to Commissioner Muir for determination, including by arbitration if necessary.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2023