Armand Sambastian v Australian Postal Corporation T/A Australia Post
[2018] FWCFB 2316
•8 MAY 2018
| [2018] FWCFB 2316 |
| FAIR WORK COMMISSION |
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 | 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 considering terminating his employment. It considered his failure to comply with the direction serious misconduct and invited him to raise any relevant matters by 5 June 2017. 5
[6] The Appellant responded on 5 June 2017 that he was “in the process of applying to the federal court for an appeal of the decision made by DP Dean” 6 (in relation to the AAT decision).
[7] Australia Post determined on 9 June 2017 to terminate the Appellant’s employment.
[8] Commission Hampton noted that on 19 July 2017 the Appellant made an application to the Federal Court for a review of the AAT decision although, it was in fact an application for an extension of time within which to appeal the AAT decision. That application was dismissed by the Federal Court on 13 October 2017. 7
[9] Commissioner Hampton considered all of the material before him and found that “the direction for Mr Sambastian to return to work was a lawful and reasonable instruction,” 8 that the Appellant “did not at any time indicate that he considered himself incapable of undertaking the duties in line with his previous rehabilitation plan or that he was seeking some further medical intervention or assessment before recommencing work”9 and that Australia Post “was entitled to act on the basis of [the AAT] decision unless and until a contrary decision was made.”10
[10] In all of these circumstances Commissioner Hampton found that the failure of the Appellant to comply with the direction to return to work was misconduct and was a valid reason for dismissal. 11
[11] The Commissioner also relevantly found that the Appellant was notified of the reason for dismissal and given an opportunity to respond. He found that there was no context within which the Appellant had sought a support person and that Australia Post was a large business with access to human resource expertise in establishing procedures leading up to the dismissal and of the dismissal itself. 12
[12] In considering any other relevant matters, Commissioner Hampton found that the Appellant had been summarily dismissed and was not paid any notice or pay in lieu of notice. In this context he observed that, as the Appellant had been on unpaid leave for some time and this circumstance was unlikely to change around the time of his dismissal, a dismissal with notice would not have resulted in any payment to him. 13
[13] The Commissioner considered the impact of the dismissal on the Appellant but, after taking all the matters into consideration found that he was not satisfied that the dismissal of the Appellant was harsh, unjust or unreasonable. 14 The Commissioner therefore dismissed the application.15
Extension of time
[14] Rule 56(2) of the Fair Work Commission Rules 2013 requires that an appeal must be instituted within 21 days after the decision appealed against, or within such time as is allowed on application. The Appellant’s appeal was lodged on 5 March 2018, 25 days after the Decision of Commission Hampton was issued. It was therefore made 4 days out of time. The Appellant has applied for an extension of time within which to file the appeal.
[15] Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged. The principles to be applied in considering whether to grant an extension of time to lodge an appeal were set out in the Full Bench decision in Jobs Australia v Mrs Donna Eland 16 as follows:
“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
• whether there is a satisfactory reason for the delay;
• the length of the delay;
• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.
[6] In broad terms the issue for the Tribunal is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.” (Citations omitted).
Reason for the delay
[16] The Appellant said that he returned to Australia after about four years in the USA on 29 January 2018. Commissioner Hampton heard the application for unfair dismissal remedy on 1 February 2018 and issued his Decision on 8 February 2018.
[17] The Appellant said that his appeal was filed late because:
• He did not realise the short time available for filing. Further, the time for filing in the Federal Court is 28 days and he assumed it was the same in the Commission;
• He had the flu for 2-3 weeks after returning to Australia that was just starting to manifest itself at the hearing before the Commission on 1 February 2018;
• His father was ill and he had to attend to his needs;
• He was busy sorting out his transport arrangements, drivers’ license, internet access and social security payments;
• He was seeking legal advice; and
• He was suffering mental issues dealing with the Decision of Commissioner Hampton and the decision of the AAT that prevented him from reading the Decision of Commissioner Hampton.
[18] Australia Post submitted that the Appellant had not provided an adequate explanation for the delay in lodging his notice of appeal. It submitted that he had produced no medical evidence that he was unwell either with the flu or “mental issues” such that he could not lodge the appeal within time. Further, the Appellant claimed to have been delayed because he was setting up his living arrangements and caring for his ill father but provided no indication as to how long any of these matters continued for and when they might have ended.
[19] Australia Post also submitted that the Appellant had appealed a judicial decision in the past and that it, too, was lodged out of time.
[20] We do not consider that any of the reasons put forward by the Appellant for the delay in lodging his appeal are compelling, particularly in circumstances where no supporting evidence is provided as to the impact each had in contributing to the delay.
[21] We do not consider that the reasons given provide substantive weight to the application for an extension of time.
The length of the delay and any prejudice to Australia Post if time was extended
[22] The delay in lodging the appeal is four days and Australia Post agrees that this would not cause it any prejudice. This weighs in favour of the grant of an extension of time.
The nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended
[23] The Decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the Fair Work Act 2009 (Cth) (the Act). Section 400(1) of the Act provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2) of the Act). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. 17 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.18
[24] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 19 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
‘... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.’ 20
[25] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal. 21 As we have mentioned, s.400(1) of the Actprovides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so.
[26] The grounds of appeal put forward by the Appellant are that the decision of Commissioner Hampton was unreasonable; the AAT decision was wrong and “corrupt”; Australia Post had placed him in danger by requiring his return to work; and his own doctor and surgeon certified him “off work”. He said that the appeal is in the public interest because Australia Post is putting workers’ lives at risk and the decision of Commissioner Hampton aides and abets this practice.
[27] In his written submissions the Appellant detailed alleged errors of fact in Commissioner Hampton’s decision. First, he said that the Commissioner was wrong in accepting that a refusal of Australia Post to continue to make workers’ compensation payments provided a reason for dismissal. He also said that Commissioner Hampton erroneously had regard to the decision of Deputy President Bean of the AAT. He said the decision of the AAT should not have been taken into account on the basis that he was not afforded a fair trial because, despite his requests, it was not adjourned until he returned from the USA, he had no legal representation and the findings were “ridiculous, biased if not corrupt.”
[28] Australia Post submitted that there is no public interest in granting permission to appeal as no apparent error in the decision of Commissioner Hampton has been identified.
[29] The Appellant’s grounds of appeal suggest that he considered the error made was in the decision of the AAT and that Commissioner Hampton was therefore in error in having regard to that decision. We do not agree. Commissioner Hampton found that the direction of Australia Post to require the Appellant to return to work was a lawful and reasonable direction given the decision of the AAT and absent any appeal of that decision. Having found that there was a lawful and reasonable direction Commissioner Hampton then found that the Appellant’s failure to comply with the direction presented a valid reason for his dismissal.
[30] Commissioner Hampton made no findings as to the correctness or otherwise of the AAT decision but did acknowledge Australia Post’s entitlement to rely on it absent a contrary decision (that is, a successful appeal), as it did. The correctness of the decisions of the AAT and the Federal Court in relation to the Appellant are not matters for this Commission but are appropriately dealt with by the Federal Court.
[31] Further, Commissioner Hampton did not find that the refusal of Australia Post to make worker’s compensation payments to the Appellant provided a valid reason for dismissal. Rather, he concluded that because no payments were being made to the Appellant a dismissal with notice would not have resulted in any payment being made to the Appellant.
[32] Having considered the matters raised by the Appellant, we are satisfied that the basis on which the Commissioner reached his decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. The correct legal principles appear to have been applied and no arguable case of appealable error is evident. We are satisfied that Commissioner Hampton properly considered the matters before him, made findings of fact based on the evidence and reached a decision reasonably open to him on those facts.
[33] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purpose of s.400(1), that:
• There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• The appeal raises issues of importance and/or general application;
• The decision at first instance manifests an injustice, or the result is counter intuitive; or
• The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
[34] Our finding weighs heavily against the grant of an extension of time.
Conclusion
[35] In our view there is no public interest in the present matter such as to support a grant of permission to appeal and we are not persuaded that an arguable case has been made out that the Commissioner made any significant errors of fact. Having regard to all of the relevant considerations we are not persuaded that it is in the interests of justice to extend time to file the appeal. Accordingly, we dismiss the Appellant’s application to extend time to file the appeal.
VICE PRESIDENT
Appearances:
A. Sambastian on his own behalf.
D. Hexter for Australian Postal Corporation T/A Australia Post.
Hearing details:
2018.
Melbourne via video link to Adelaide:
April 5.
Printed by authority of the Commonwealth Government Printer
<PR602223>
1 [2018] FWC 741.
2 PR600110.
3 [2018] FWC 741.
4 Ibid at [31].
5 Ibid at [33].
6 Ibid at [34].
7 Ibid at [37]; see also [2017] FCA 1232.
8 Ibid at [48].
9 Ibid at [50].
10 Ibid at [51].
11 Ibid at [53]-[54].
12 Ibid at [55]-[65].
13 Ibid at [67].
14 Ibid at [74].
15 Ibid at [75].
16 [2014] FWCFB 4822 at [5]-[6].
17 Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43].
18 Fair Work Act 2009 (Cth) s.400(1).
19 O’Sullivan v Farrerand another (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].
20 (2010) 197 IR 266 at [27].
21 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663 at [28].
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