Hausmeister v Willoughby Council [2022] NSWIRComm 1091

Industrial Relations Commission New South Wales Medium Neutral Citation: Hausmeister v Willoughby Council [2022] NSWIRComm 1091 Hearing dates: On the papers Date of orders: 26 October 2022 Decision date: 26 October 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: The Commission declines to accept the Application for Relief in Relation to Unfair Dismissal out of time Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal Legislation Cited: Industrial Relations Act 1996 (NSW), s 85(3) Fair Work Act 2009 (Cth) Cases Cited: Brady v Kennedy (t/as Sardines) (1991) 91 IR 258 Hurrell v Queensland Cotton Corporation Limited 92002) 125 ALIR 145 Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 52 IR 186 McHughes v Secretary, Department of Education [2020] NSWIRComm 1033 John Nicolis v Canterbury Bankstown Council [2018] NSWIRComm 1082 Vijayaratnam v NSW Department of Education and Training [2010] NSWIRComm 1034 Waine v BHP Steel [unreported No IRC 3138 of 2001] Category: Procedural rulings Parties: L Hausmeister (applicant) Willoughby Council (respondent) Representation: S Prince SC and T Wong of Counsel (for applicant) Local Government NSW (for respondent) File Number(s): 2022/83512 Publication restriction: Nil

decision 1. This is an application pursuant to section 85(3) of the Industrial Relations Act 1996 (NSW) ("IR Act") for the Commission to exercise discretion to allow the late filing of an application ("Unfair Dismissal Application") that the dismissal of the applicant was unfair. 2. The applicant was employed by Willoughby Council until the termination of her employment on 1 March 2022. The Unfair Dismissal Application, pursuant to section 84 of the Act, was filed in the Industrial Registry on 23 March 2022. 3. Pursuant to section 85 of the IR Act, the applicant had until 22 March 2022 if the Unfair Dismissal Application was to comply with the presumptive statutory time for filing. Accordingly, the applicant requires the Commission to exercise its discretion for the Unfair Dismissal Application to proceed. 4. The respondent did not object to conciliation taking place but reserved its position should conciliation not succeed. Conciliation took place by telephone on 12 April 2022 and was not successful. 5. The Commission then set a timetable for the applicant and respondent to file material as to the acceptance of the Unfair Dismissal Application out of time. 6. The applicant and respondent each filed their initial submission in accordance with the timetable set on 12 April 2022. The applicant did not file her material in reply on 17 May 2022, as required by the timetable. Her submissions in reply, and an accompanying affidavit, were filed on 9 August 2022.