Hausmeister v Willoughby Council (No 2) [2023] NSWIRComm 1022

Industrial Relations Commission New South Wales Medium Neutral Citation: Hausmeister v Willoughby Council (No 2) [2023] NSWIRComm 1022 Hearing dates: 10 March 2023 Date of orders: 10 March 2023 Decision date: 17 March 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan, Commissioner Webster and Commissioner McDonald Decision: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of Commissioner Muir, published on 26 October 2022, to decline to accept the Unfair Dismissal Application out of time is quashed. 4. Pursuant to s 85(3) Industrial Relations Act 1996 the Unfair Dismissal Application is accepted out of time. 5. The matter will be returned to Commissioner Muir. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal from decision to decline to accept unfair dismissal application accepted out of time – whether Commissioner erred in finding the employer would suffer hardship or prejudice if application accepted – whether that finding supported by evidence – whether Commissioner erred in consideration of applicant's prospects of success on the application Legislation Cited: Civil Procedure Act 2005 s 63 Industrial Relations Act 1996 ss 84, 85, 187, 188, 191 Industrial Relations Commission Rules 2022 r 2.1 Uniform Civil Procedure Rules 2005 r 12.7 Cases Cited: Fraser v Commissioner of Fire and Rescue NSW [2022] NSWIRComm 1026 Hausmeister v Willoughby Council [2022] NSWIRComm 1091 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145; [2003] NSWIRComm 139 Mace v Murray (1955) 92 CLR 370; [1955] HCA 2 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Vijayaratnam v New South Wales Department of Education and Training [2010] NSWIRComm 1034 Texts Cited: Nil Category: Principal judgment Parties: Lisa Hausmeister (Appellant) Willoughby Council (Respondent) Representation: Counsel: S Prince SC with T Wong (Appellant) L Saunders (Respondent) Solicitors: Local Government NSW (Respondent) File Number(s): 2022/00344969 Publication restriction: No Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: [2022] NSWIRComm 1091 Date of Decision: 26 October 2022 Before: Commissioner Muir File Number(s): 2022/00083512