DECISION

Fair Work Act 2009
s.604—Appeal of decision

Armand Sambastian
v
Australian Postal Corporation T/A Australia Post
(C2018/1159)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT COLMAN
COMMISSIONER BISSETT

BRISBANE, 8 MAY 2018

Appeal against decision [2018] FWC 741 of Commissioner Hampton at Adelaide on 8 February 2018 in matter number U 2017/6259 – extension of time within which to make appeal - extension of time not granted.

[1] The Appellant, Mr Armand Sambastian, has lodged an appeal, for which permission is required, against a Decision 1 and Order2 of Commissioner Hampton issued on 8 February 2018 dismissing his application for relief from unfair dismissal.

Decision at first instance

[2] The Appellant was employed by Australian Postal Corporation (Australia Post) delivering mail on a motor scooter. He commenced direct employment with Australia Post in 1999 and was employed until he sustained an injury in the course of his employment in 2001. In his Decision Commissioner Hampton noted that the Appellant had been on various rehabilitation plans designed to assist in a return to work but, for a range of reasons including exacerbation of the injury, these were not successful and a return to work did not occur. The Commissioner noted a number of legal disputes between the Appellant and Australia Post, and that, but for a few days in 2004 and 2013, the Appellant had not undertaken any work with Australia Post since the injury in 2001. Since late 2013 or early 2014 the Appellant had resided in the United States of America (USA).

[3] The Appellant was dismissed from his employment with Australia Post on 9 June 2017. The Commissioner summarised the circumstances of the Appellant’s dismissal as follows:

‘[5] According to the originating application, Mr Sambastian was dismissed by Australia Post on 9 June 2017 on the basis of his refusal to attend for work in circumstances where he contends he remains injured and no suitable work within his capacity was provided to him. The immediate context for the dismissal is that in April 2017, the AAT determined that Mr Sambastian was entitled to receive workers compensation payments for two closed periods (7 to 28 March 2013 and 17 September 2012 to 28 March 2013) but that the rehabilitation program established by Australia Post was reasonable and the suspension of Mr Sambastian in light of his refusal to participate would not be overturned.’ 3 (Endnote omitted)

[4] In light of the decision of the Administrative Appeals Tribunal (AAT) Australia Post wrote to the Appellant on 19 May 2017 directing him to return to work at a specified location on Monday 29 May 2017 at 6.00 am. 4 Whilst the Appellant could not recall reading this letter, Commissioner Hampton found that Australia Post took all reasonable steps to communicate the letter to him.

[5] The Appellant did not attend work in accordance with the direction. Due to the Appellant’s failure to attend work, Australia Post wrote to him on 29 May 2017 advising that it was…

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

AGLC: Armand Sambastian v Australian Postal Corporation T/A Australia Post [2018] FWCFB 2316
Case: [2018] FWCFB 2316
Decision Date: 8 MAY 2018

CaseChat Overview and Summary

Armand Sambastian appealed a decision made by Commissioner Hampton in the Fair Work Commission on 8 February 2018, pertaining to matter number U 2017/6259. The decision concerned an extension of time within which to make an appeal to the Federal Court. The Australian Postal Corporation, trading as Australia Post, was the respondent in this matter. The primary dispute was whether the respondent's appeal against the original decision should be dismissed for late lodging.

The central legal issues before the court involved the interpretation and application of the Fair Work Act 2009, specifically the provisions regarding the extension of time for appeals. The court had to determine if the respondent's application for an extension of time was justified under the circumstances and whether the appeal should be allowed despite the late filing.

The court found that the respondent had not provided a satisfactory explanation for the delay in lodging the appeal. The respondent argued that the delay was due to a misunderstanding of the decision's implications and a failure in communication within their legal team. However, the court was not persuaded that these factors constituted exceptional circumstances warranting an extension of time. The appeal was dismissed, and the decision of the Commissioner was upheld. The court did not find merit in the appeal and consequently dismissed it.

Orders