Armand Sambastian v Australian Postal Corporation T/A Australia Post

[2017] FWC 6038

[2017] FWC 6038

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Armand Sambastian
v
Australian Postal Corporation T/A Australia Post
(U2017/6259)

COMMISSIONER HAMPTON ADELAIDE, 17 NOVEMBER 2017

Application for an unfair dismissal remedy – preliminary issue – manner in which future proceedings should be conducted – applicant resides in the USA and contends not currently able to return to Australia – interlocutory decision made – whether recent developments relevant - matter to be scheduled for a hearing and applicant to attend irrespective of citizenship status at that time – if no attendance, matter to be dismissed.

1. Background and the Interlocutory decision

[1] This decision concerns an application made by Mr Armand Sambastian under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal. His former employer, and the respondent in this matter, is the Australian Postal Corporation T/A Australia Post.

[2] On 31 October 2017, I issued a decision 1 (the Interlocutory decision) concerning the programming and listing of the matter for hearing. This decision should be read in conjunction with the Interlocutory decision and I adopt the background set out therein.

[3] Without repeating that background, I confirm that Mr Sambastian presently resides in the United States of America (USA), and has done so for some time. This was the case at the time of the initial directions conference conducted in this matter. It was however anticipated by the Commission, and the parties, at the time of the initial directions conference that Mr Sambastian would be returning to Australia to conduct his case.

[4] In the Interlocutory decision, having found that an in-person hearing was required given the circumstances of the parties and the issues in dispute, I stated as follows:

“[38] This means that I must consider the remaining alternatives. Before doing so, it is appropriate to deal with the nature and extent of the explanation that Mr Sambastian has provided for his alleged inability to return to Australia.

[39] At best, that explanation involves the indication that he has applied for citizenship of the USA, has recently been interviewed and approved but that his previous permanent resident card (the Green Card) which he has held for some years, has been suspended due to his time out of the country between 2013-2014. Further, he has been given an opportunity to contest that suspension by demonstrating that did not abandon his residence in the USA including by showing, amongst other matters, that during his absence he did not obtain employment abroad. That much appears to be consistent with documentation that has been provided with his submission.

[40] However, there is no evidence or formal documentation to confirm that:

• Mr Sambastian has taken up the opportunity to contest his suspension (the only documentation supplied is the form indicating that he had that opportunity and the nature of the material that he should provide);

• a decision by the relevant USA Government agency is…