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. Applicant's evidence 1. On 26 April 2022, the applicant filed a bundle of eight documents under cover of a title page. The bundle's principal document set out her reasons for late acceptance. This document contained a mixture of evidence and submissions, as might reasonably be expected of an applicant who was then self-represented. 2. In the principal document, the applicant outlined that: 1. Her mental health had deteriorated due to the stress and anxiety she had experienced from being unable to do the job she loved, and from not being allowed to attend her workplace. 2. She was holding out "a small hope" the public health orders would change so that she would be able to resume her work. 3. Her anxiety was escalated due to her loss of income and a concern about paying her mortgage and living expenses. 4. She was unable to apply for other positions for which she was qualified as they also required that she be vaccinated. 5. On 17 March 2022 she commenced consideration of an unfair dismissal claim. 6. On a date which she does not specify she concluded that she had until 22 March 2022 to lodge a claim for unfair dismissal. 7. On 22 March 2022 she became aware that her unfair dismissal claim should be made to the New South Wales Industrial Relations Commission ("IRC"). Prior to this point she had planned to submit her unfair dismissal claim to the Fair Work Commission ("FWC"). 8. On discovering that her claim should be lodged through the IRC she immediately rang the IRC office, told them her circumstances, and was advised the IRC office would close in "an hour". She states that she was unable to get from her home to Parramatta in that timeframe. 9. Later on 22 March 2022 her sister-in-law contacted her and then came to her home and assisted her to complete an application to the IRC. 10. On 23 March 2022 she attended her GP and was "put on a mental health plan". 11. In the afternoon of 23 March 2022, she filed her unfair dismissal application at the IRC. 12. She feels that she has lost everything that was important to her because of a "provisional vaccine" and believes her circumstances are different when compared with an employee who has genuinely done the wrong thing where a business has reasonable grounds to terminate that employee. 1. Attached as a second document in her bundle was a statutory declaration setting out the above facts in the form of an executed declaration. 2. Also attached was an executed statutory declaration by a Carmel Matheson, who I understand is the applicant's sister-in-law. This declaration attests to Ms Matheson's observations of the applicant's mental state and Ms Matheson's views of the impact of the dismissal and the events leading to the dismissal on the applicant. 3. Also attached were a range of documents, which on their face were made by a Dr Emmanuel Udebunu concerning the applicant. Most of these are dated 23 March 2022. One is a document titled medical certificate and dated 24 April 2022. Each of these documents supports, in general terms, the statements of the applicant as to her mental state. Beyond the documents themselves, there was no explanation of what the IRC should specifically make of each document. 4. The applicant's material in reply filed on 9 August 2022 included an affidavit made by the applicant on that date. It set out the applicant's rate of pay when employed by the respondent, and the rate the applicant now received from employment she obtained commencing on 30 May 2022. The latter rate of pay was lower than her rate of pay while employed by the respondent. 5. The applicant also attached to her affidavit of 9 August 2022 a media release which she described as being made by Minister Brad Hazzard MP on 17 February 2022. It appears from the face of the media release it is a New South Wales Health media release, which contains quotes from a range of ministers, including Minister Hazzard. The media release is headed "NSW Government update to COVID-19 settings". Respondent's evidence 1. On 10 May 2022, the respondent filed submissions, supported by an affidavit of Monica Lonergan, People and Culture Manager at the respondent. In her affidavit Ms Lonergan stated that: 1. On 23 July 2021, the local government area ("LGA") in which the applicant resided was added as an area of concern by the New South Wales government under a public health order. 2. On 30 August 2021 a further public health order was made, the effect of which was that the applicant was unable to leave her LGA for work unless she had received at least one dose of a COVID-19 vaccine. 3. The nature of the applicant's work, which involved supervision of children, meant that working from home was not an option for the applicant. 4. The respondent had no remote working roles that matched the applicant's skill and available technology. 5. On 23 September 2021 the New South Wales government published a public health order which included the requirement for all workers covered by the public health order to have received two doses of a COVID-19 vaccine before 8 November 2021 or they could not carry out work at a childcare centre after that date. This requirement applied to the applicant. 6. Subsequent public health orders contained minor changes, but they continued to require vaccination of childcare workers. 7. In October 2021, the respondent commenced discussions with staff about a COVID vaccination policy. On 9 December 2021 the chief executive of the respondent implemented a policy for its staff requiring workers performing various roles, including the role performed by the applicant, to be vaccinated against COVID-19. 8. On 25 October 2021 Ms Lonergan emailed the applicant to remind the applicant that the public health orders required the applicant to be vaccinated in order for her to perform her work. 9. On 25 October Ms Lonergan received an email reply from the applicant requesting copies of the applicant's contracts. Ms Lonergan replied to this email providing copies of the applicant's contracts. 10. On 8 November 2021, as she had not received evidence from the applicant of vaccination or a medical contraindication, Ms Lonergan emailed the applicant, "standing the applicant down on leave" and again requesting that the applicant provide her supervisor with evidence of vaccination or a medical contraindication. 11. On 10 November 2021 Ms Lonergan received an email from the applicant confirming receipt of Ms Lonergan's email of 8 November. The 10 November email did not provide any information on the applicant's vaccination status or any medical contraindication. 12. Between 3 December 2021 and 23 December 2021 Ms Lonergan and the applicant exchanged a series of emails relating to the respondent's COVID vaccination policy and questions the applicant had concerning that policy. 13. On 24 December 2021 Ms Lonergan emailed and posted to the applicant a letter which included a directive that the applicant be fully vaccinated by 31 January 2022 to comply with public health orders and the respondent's COVID vaccination policy. The letter set out that if the applicant was unable to provide evidence of vaccination or a medical contraindication that the applicant would be managed under the non-compliance clause of the respondent's COVID vaccination policy. Ms Lonergan attached a copy of all past correspondence, the public health order, and the respondent's COVID vaccination policy. 14. On 20 February 2022 after considering responses from the applicant, and considering the time provided to the applicant to seek advice, Ms Lonergan sent a letter to the applicant requesting a "Show Cause meeting" for 25 February 2022. Ms Lonergan set out that the meeting would be for the applicant to show cause why she should not be dismissed for non-compliance with the vaccination requirements. 15. At the request of the applicant the meeting was rescheduled to 1 March 2022. 16. The applicant did not provide any evidence of a medical contraindication and was therefore unable to show a reason for exemption from the vaccination requirement of the public health order. At the 1 March meeting the applicant made several statements including that "she had seen a number of doctors but was unable to get a medical contraindication certificate", and stated that doctors were scared to provide such a certificate. 17. Ms Lonergan stated that the applicant "made it clear she did not intend to get vaccinated and raised concerns over the validity of the vaccines. Her position was that she did not agree with the public health order and believed it was not enforceable." Legal issues - summary 1. Section 85 of the IR Act prescribes the time for making applications for relief from an unfair dismissal. An application is to be made within 21 days of the date of dismissal, with 2 exceptions provided. Only subsection 85(3) is directly relevant to this application. 2. Section 85(3) provides: (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. 1. It is apparent from the section that the onus to establish a sufficient reason is borne by the applicant. The Act does not prescribe what constitutes a sufficient reason. 2. It is clear from the section that consideration must be given to the matters set out in each of paragraphs (a), (b) and (c). 3. A sufficient reason may arise from the issues specified in one of paragraphs (a), (b) and (c), a combination of them or otherwise. It may indeed be a balance between factors for and against the exercise of discretion from the totality of the issues specified in paragraphs (a), (b) and (c), with or without other factors. 4. In short, the Commission should have specific regard to the matters in each of the paragraphs of section 85(3) but should be guided by the overall justice of the case. The onus is on an applicant to persuade the Commission that discretion should be exercised in her favour. Applicant's submissions 1. 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. 1. By the time the applicant's submissions in reply were filed the applicant was legally represented. The applicant's submissions in reply were signed by Shane Prince SC and Tammy Wong, both of Counsel. 2. The reply submissions summarise that "the merits of her case, lack of prejudice to the [respondent], negligible delay and compelling evidence regarding her mental health are such that the interests of justice weigh heavily against any decision to deprive her of the opportunity to prosecute her case." 3. In more detail, the reply submissions set out that: 1. The applicant was self-represented and did not have the benefit of legal advice at the time she filed the Unfair Dismissal Application or her original submissions regarding an extension of time. 2. Previous decisions of the IRC support the conclusions set out in paragraphs [15 – 17] above [1] . The lack of knowledge of a 21-day limitation is a relevant consideration in determining whether to accept an application out of time [2] . 3. The IRC should not arbitrarily adopt an approach that ignorance of the law is no excuse, as such an approach may fail to give proper consideration to the particular circumstances of an individual application [3] . 4. Where an applicant is self represented the IRC is bound to ensure that an applicant does not suffer disadvantage for that reason [4] . 5. The preponderance of factors in s 85(3) "plainly" weigh in the applicant's favour. In particular, the submissions point to the Unfair Dismissal Application only being 24-hours delayed. 6. The submissions set out the reasons, based on the applicant's evidence, as to why the Unfair Dismissal Application was late, largely repeating the matters set out in [7] above. The reasons refer to a medical certificate issued by Dr Udebunu on 24 April 2022 and to the applicant realising "in the late afternoon" of 22 March 2022 that her claim should be commenced in the IRC. 7. The IRC need only satisfy itself of the applicant's reason for a delay of one day, and particularly in the circumstances where the applicant was unrepresented this has been adequately explained. Moreover, the applicant's error in proposing to file her claim with the FWC is "so common that the remedy is enacted into … the Act … ." Indeed, had the applicant filed her application with the FWC as originally proposed she would have had the time for filing with the IRC automatically extended by 21 days after the rejection or withdrawal of the FWC application. 8. The applicant should not be penalised for not knowing that she could have filed her Unfair Dismissal Application at a Local Court Registry in circumstances where she only discovered the processes of the IRC through a telephone call to the Registry at around 3.00pm on 22 March 2022 and that there was no mention in the call that she could file documents at a Local Court. 9. The fact that the applicant was aware of a 21-day timeframe as it related to the FWC is irrelevant to her knowledge of such a timeframe in relation to an application to the IRC. 10. The applicant's medical evidence should be accepted in the form filed as a compelling explanation for why the applicant did not file the Unfair Dismissal Application on 22 March 2022. The submission went on to explain how the material, filed by the applicant previously, established the basis for an extension. 11. The respondent has made no submissions as to prejudice it would suffer and should be taken to concede that it will suffer no prejudice if the matter is to proceed. 12. To the extent that the applicant is required to address whether she has an arguable case, and her prospects of success, decisions of the FWC should have little to no bearing given the different statutory regime applying under the Fair Work Act 2009 (Cth) ("FW Act"). This is especially so when there has been only one decision of the IRC related to the dismissal of a worker subject to public health orders. 13. The fact the timing of the dismissal in the decided IRC matter was "well before any lifting of restrictions was announced by the state", together with that decision concerning a healthcare worker, distinguished it from the present case. 14. Referring to the media release previously filed by the applicant, it was submitted that "[o]n 17 February 2022 the New South Wales government issued a press release in which it significantly altered the COVID-19 settings applicable to the state including by abolishing density limits and significantly reducing the situations in much which masks were mandated. Notably masks were no longer mandated in education or childcare contexts …" 15. The respondent delayed taking action against her until 20 February 2022 "three days after the New South Wales government had indicated the lifting of restrictions. It is plain that the actions taken to terminate the applicant's [employment] were taken apropos the imminent lifting of restrictions when it was foreseeable that the New South Wales government's attitude towards vaccination mandates was seen to change." 16. On 13 May 2022 the final public-health order concerning education and childcare workers expired and no further health order relating to educational childcare workers has since been made. The applicant was two months from being lawfully permitted to retain her employment with the respondent, and so it was harsh to impose the permanent consequences of termination when it had permitted her to remain away from the workplace since 9 September 2021. Respondent's submissions 1. The respondent's submissions, which pre-date the substantial submissions of the applicant which were made in reply, set out that: 1. While the applicant references commencement of an application to the FWC, there is no evidence that such an application was submitted. 2. The IR Act does not define what constitutes sufficient reasons, but each case must be decided on its own facts and circumstances [5] . 3. While various factors such as the applicant's knowledge of a time limitation for making an application, and the strength of the applicant's case can be relevant to accepting an out of time application, "the ultimate exercise of discretion is governed by the requirements of justice in a particular case" [6] . 4. The applicant was provided a fair process prior to her termination, the respondent considered whether there were alternative roles which the applicant could undertake which might not have required her to be vaccinated. 5. The respondent was under an obligation created by a public health order not to allow the applicant to work whilst she remained unvaccinated. 6. The New South Wales Supreme Court has held the public health order to be valid. 7. The applicant refused to be vaccinated or produce a medical contraindication certificate as required, therefore the termination was not harsh, unjust or unreasonable. 8. The FWC has held that employee non-compliance with a public health order is a valid reason for termination. While those cases are in the federal jurisdiction pursuant to the FW Act, they are persuasive to reach the conclusion that non-compliance with a public health order is generally a valid reason to dismiss an employee. 9. Where an application is unlikely to succeed it would do nothing more than delay the inevitable and visit cost and inconvenience on both parties to allow a late application to proceed [7] . 10. The IRC is not bound by the rules of evidence and must inform itself in a way that it considers to be just according to equity good conscience and the substantial merits of the case. Nevertheless, there are a range of objections to the medical evidence purportedly given by the applicant. These include that both the applicant and Ms Matheson purport to give expert evidence which they are not qualified to give. Further there are insufficient bases to tie the medical evidence temporally and factually to the issues in dispute. The best that can be said from the various medical evidence produced by the applicant is that it demonstrates how the applicant felt. 11. Any evidence from Ms Matheson as to inadequate responses to the applicant in relation to her employment are objectionable and at best a report of how the applicant perceived the respondent's conduct. The respondent rejected any assertion of "limited responses." 12. The applicant was aware that, assuming she was making an application to the FWC, she was faced with a 21-day deadline. There is no evidence the applicant was in a position to file an application with the FWC by the deadline of which she acknowledges she was aware. Consideration 1. The position of the applicant can fairly be summarised by the matters set out at [21] above. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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 1. 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. 1. 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. 2. 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. Decision 1. Accordingly, the Commission declines to accept the Application for Relief in Relation to Unfair Dismissal out of time. C Muir Commissioner ********** Endnotes 1. McClymont v Thomson Financial Pty Ltd [2002] NSWIRComm 283 at [27] per Sams DP 2. Brady v Kennedy (t/as Sardines) (1991) 91 IR 258 as cited in Hurrell v Queensland Cotton Corporation Limited 92002) 125 ALIR 145 at [13]. 3. Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on behalf of Vian (1993) 52 IR 186 at [14] 4. McHughes v Secretary, Department of Education [2020] NSWIRComm 1033 at [7] per Constant CC 5. John Nicolis v Canterbury Bankstown Council [2018] NSWIRComm 1082 at [37] 6. Hurrell v Queensland Cotton Corporation Limited 92002) 125 ALIR 145 at [13] 7. Vijayaratnam v NSW Department of Education and Training [2010] NSWIRComm 1034, citing Waine v BHP Steel [unreported No IRC 3138 of 2001] at [19] 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: 26 October 2022