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 pending and what that may involve, including any timeframes;

• that Mr Sambastian will be prejudiced if he leaves the USA whilst any contest of his suspended Green Card is being considered (although I would be prepared to accept that this might be so); or

• that he has sought advice about making an application to travel whilst the review decision is pending.

[41] This does not mean that these things have not occurred but despite an opportunity to provide information to confirm his circumstances and to support his requests, there is no evidence or documentary material to confirm these matters.

[42] In that light, there is at best, considerable uncertainty about Mr Sambastian’s circumstances and little to support the notion that he is unable to leave the USA to return to Australia. It is a reasonable inference that Mr Sambastian is making an election not to return based upon his own priority to pursue his USA citizenship status. In addition, there is no indication from Mr Sambastian that he will immediately return to Australia, regardless of the outcome of his citizenship application and the apparent review of his Green Card (even if unfavourable), whenever that outcome is known. Further, Mr Sambastian is seeking that he be reinstated and that he be able to resume his employment with Australia Post in Australia. This all strongly militates against further delays and should be taken into account when assessing Mr Sambastian’s circumstances and his request in relation to this matter.

[43] In all of the circumstances evident here, I do not consider that it is appropriate to adjourn the matter until such time that Mr Sambastian elects to returns to Australia. Amongst other factors, there is no certainty about the timeframes or whether that will in fact occur.

[44] Australia Post has sought that the application be summarily dismissed. This is not an appropriate course of action at this point. Rather, I consider that it is appropriate to set the matter down for hearing in Adelaide as originally intended. Further, I will require Mr Sambastian to provide a written undertaking to the Commission well in advance of the scheduled hearing date confirming that he will be back in Australia to attend the hearing. If that confirmation is given, Australia Post will be required to file its relevant evidentiary and other material for the substantive hearing of this matter. If the required confirmation is not given and/or Mr Sambastian does not subsequently attend the hearing as scheduled, the unfair dismissal application will be dismissed without further notice or hearing.

5. Directions

[45] Directions consistent with the above are being issued in conjunction with this decision.

[46] The directions will require the written confirmation by Mr Sambastian to be provided to the Commission and Australia Post by no later than 17 November 2017. Subject to that confirmation, the hearing will be conducted by the Commission in Adelaide on Thursday 21 December 2017.

[47] The consequences of non-compliance as set out in this decision will also be confirmed in the directions.”

2. Subsequent developments

[5] On 1 November 2017, Australia Post sought that the hearing be brought forward given the unavailability of Counsel. This was rejected by the Commission given existing commitments and the fact that permission for representation (other than in the context of the directions conferences) had not yet been dealt with.

[6] On 1 November 2017, Mr Sambastian sought a delay of the scheduled hearing based upon the capacity to get a reasonable flight to Australia (presumably a question of cost) in the lead up to Christmas.

[7] On 2 November 2017, Mr Sambastian advised that there had been a development in his citizenship application in that the application had been approved, the final step was for an oath ceremony to be conducted and whilst no date was known it could be as early as December 21. He further stated that the law requires him to exit the USA on an American passport which would take two weeks after the oath ceremony. Mr Sambastian also indicated that he “understood that his immigration issues are not relevant to Australia Post or the Commission” but requested that this development be taken into account. Mr Sambastian attached what appeared to be a photo of a “screenshot” of a US Citizenship and Immigration Services (CIS) website with a notice confirming that an oath ceremony for a (redacted) application had been scheduled and that a notice had been provided. Also attached was a photo of a “screenshot” of a list of citizenship ceremony dates displayed on the CIS website.

[8] On 4 November 2017, the Commission required that Ms Sambastian provide a copy of the notice of the oath ceremony, confirm that he would be returning to Australia to attend a hearing of his unfair dismissal matter, and outline the extent of any delay sought with specific details. An opportunity was also given to Australia Post to provide a response in light of the above.

[9] On 8 November 2017, Mr Sambastian indicated that he had not yet received the actual notice confirming the date of the oath ceremony, but that it would be after 25 November 2017 given the website notice received (the same screenshot was provided in support); that he would be required to leave the USA using his (new) USA passport when issued; he could apply for the passport after the oath ceremony; and that a 4 to 6 week wait for a new passport applied. Mr Sambastian also indicated that he would like the hearing to be at the end of January (2018) and that he would be in Australia for the hearing.

[10] In response, Australia Post indicated that:

•  Mr Sambastian had not provided the actual notice of his oath ceremony as required or confirmed which oath ceremony was to be attended;

•  The confirmation that Mr Sambastian would be returning to Australia appeared to be conditional upon a later date being scheduled and that different reasons had been given by Mr Sambastian for the requested delay;

•  No details of the extent of the adjournment had been provided; and

•  In the absence of any compelling reason to accommodate Mr Sabastian’s position, which he had not provided, the Commission should dismiss the unfair dismissal application as indicated in the earlier interlocutory decision.

3. The status and future programing of the matter

[11] Whilst I am not without reservations about the veracity of the CIS information relied upon by Mr Sambastian, I accept on face value that there has been a relevant very recent development bearing upon this matter. Although the timeframes remain uncertain, and the actual notice of the oath ceremony has not yet been received, 2 the fact that Mr Sambastian apparently has been approved for USA citizenship means that he should in the near future be able to leave that country without surrendering his capacity to return to the USA and take up future employment there.

[12] The question remains as to whether this is sufficiently relevant to the disposition and scheduling of the application and whether it is reasonable to make any further accommodation for Mr Sambastian’s circumstances.

[13] At the outset, I would observe that the implications of these circumstances involve different considerations than those that applied during his employment. That is, unlike at the time of the events leading to the dismissal, Mr Sambastian is now not employed in Australia and his return is necessary to conduct Commission proceedings associated with a dismissal. Mr Sambastian is also obligated to mitigate his losses and to the extent that he may in the future seek to rely upon his capacity to work in the USA, his location at this juncture appears to be significant.

[14] As would be clear from the Interlocutory decision, Mr Sambastian’s citizenship status is not a primary concern for the Commission, and his apparent inability or unwillingness to leave the USA is contrary to the basis of the unfair dismissal application. Further, the cause of the delay would be relevant to any remedy should that be considered. However, given all of the circumstances of this matter it is not in either party’s interests for any future employment options in the USA to be compromised.

[15] I also observe that the veracity of the explanation for any delay, that is Mr Sambastian’s citizenship application and associated circumstances, can be tested during any hearing that is ultimately conducted. These matters may also be relevant to a costs application 3 should one be made at some point.

[16] These factors must however be weighed against the potential prejudice to Australia Post and the broader considerations outlined in the Interlocutory decision. Although much of the prejudice can be taken into account in terms of steps taken in the lead up to any hearing and the consideration of any remedy should that ultimately become relevant, these factors require that there be a firm deadline and schedule established if any accommodation is to be made. Further, the fact that the additional delay to the hearing involved is relatively short is a factor weighing in favour of providing some accommodation at this juncture.

[17] On somewhat of a fine balance I do not consider that it is appropriate to dismiss the s.394 application at this stage. Rather, I consider that the following is appropriate:

1. The hearing of this matter will now be scheduled to be conducted on Thursday 1 February 2018 in Adelaide.

2. Mr Sambastian is to attend this hearing in person and must do so irrespective of the status of his citizenship or associated matters at the time. If he indicates that he cannot comply with this condition, and/or does not do so, he will be taken to have abandoned his application. In those circumstances, the unfair dismissal application will be dismissed without further notice or hearing.

3. Australia Post is by Friday 22 December 2017 to file and serve its submissions and evidentiary materials in relation to the unfair dismissal application together with a written submission outlining its grounds for seeking permission to be represented under s.596 of the FW Act.

4. Mr Sambastian is by Monday 8 January 2018 to file and serve any response to the s.596 application should he wish to be heard on that issue.

[18] I direct accordingly.

COMMISSIONER

Written submissions:

Mr Sambastian: 2 and 8 November 2017.

Australia Post: 10 November 2017.

 1   Armand Sambastian v Australian Postal Corporation T/A Australia Post[2017] FWC 5453.

 2   This is consistent with the website notice provided by Mr Sambastian.

 3 Sections 400A and 611 of the FW Act.

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