Armand Sambastian v Australian Postal Corporation T/A Australia Post

[2017] FWC 5453

[2017] FWC 5453

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, 31 OCTOBER 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 – whether appropriate for substantive hearing to be conducted via telephone – whether matter should be adjourned pending applicant’s return – matter to be scheduled for a hearing subject to confirmation that applicant will return to Australia to attend the hearing – if no confirmation, matter to be dismissed.

1. What this decision is about

[1] Mr Armand Sambastian made an application on 11 June 2017 under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal. Mr Sambastian commenced direct employment with Australia Post in 1999 delivering mail on a motor cycle, colloquially called a “postie scooter” and did so until he sustained an injury in the course of his employment in 2001. Thereinafter, various rehabilitation programs were implemented and other developments occurred, including partial returns to work, which were designed to enable to Mr Sambastian to return to full duties on an ongoing basis. For a variety of reasons, some of which are in dispute, this has not occurred.

[2] There have been a series of disputes between Mr Sambastian and Australia Post surrounding the events outlined above, including various proceedings before the Administrative Appeals Tribunal (AAT), and more recently, the Federal Court of Australia (FCA).

[3] According to the originating application, Mr Sambastian was dismissed by Australia Post 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.

[4] This matter was not resolved at conciliation and following allocation to this arm of the Commission for determination, a telephone directions conference was conducted. Directions were subsequently issued, with the consent of the parties, for the filing of materials and with the matter being set down for a hearing on 17 and 18 October 2017 in Adelaide.

[5] 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. 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.

[6] Despite some initial delays, and after some further intervention by the Commission, 1 Mr Sambastian has filed his materials in support of his unfair dismissal application. However, he has not returned to Australia and now seeks to either have his matter delayed until some point in time where he will be able to travel back to this country, or alternatively, have the hearing conducted by telephone.

[7] Australia Post opposes both options and contends that Mr Sambastian should be required to return to Australia if he wishes to proceed with his case, or alternatively, that his unfair dismissal application be dismissed.

[8] Following a further telephone directions conference, both parties have now filed submissions about their respective positions, including some documentary material. Part of that process was to provide Mr Sambastian with an opportunity to provide some evidence that might shed some light on his present circumstances, including why he contends that he is unable to return to Australia.

[9] This decision deals with how the Commission will deal with this application in light of the above developments.

2. Mr Sambastian’s request

[10] Mr Sambastian’s request for this matter to be adjourned or dealt with by telephone is based upon his contentions about his present circumstances and the consequences of him having to leave the USA at this juncture.

[11] In terms of the more immediate background, Mr Sambastian states that:

“5. Suspended for not attempting a rehabilitation plan that exceeded my abilities being that it was twice the size of a fully able postie’s delivery round.

6. AAT tribunal wrongly believed that I should have attempted the delivery round even with a undiagnosed condition of my right arm / hand.

7. Attempted delivery round and could not continue due to non functioning right hand.

8. Treating doctor (not Australia post doctor) ordered me to stop work and seek treatment and diagnosis procedure.

9. Australia post again suspended me for not continuing work.

10. 2013 Non Australia Post doctor discovered torn tendon epiaondalyitis which is consistent with loss of function of right hand.

11. Australia post would not pay for procedure or medication. And discouraged me from doing the procedure.

12. 7th May 2017 AAT finds that work was suitable and Australia post not liable for epicondylitis (what !!!).

13. I appeal to the federal court my appeal is thrown out because I cannot attend hearing and was not allowed to have adjournment or telephone hearing.

14. Appealing to the high court.” 2

[12] I note the reference to the AAT finding is to a decision 3 issued by the AAT on 7 April 2017 concerning the review of decisions made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) denying continuing liability for Mr Sambastian’s shoulder and elbow injuries.

[13] The reference to the FCA matter was a very recent decision 4 of the Court refusing an adjournment and an extension of time application made by Mr Sambastian seeking a review of the AAT decision.

[14] In relation to his present circumstances, Mr Sambastian states that he has been a permanent resident of the USA but is not (yet) a USA citizen. In that regard he has stated that:

“17. July 31st 2017 I attend final interview and test for citizenship. I’ve had a permanent resident card (Green card) since 2006. I pass test but am told that my Green card is suspended for being in Australia for nearly two years between 2013-2014.

18. I’m given an opportunity to contest the suspended green card by written submissions which I have done. As of 20th October I have not been notified of the outcome.

19. I’m told that if I’m outside the USA and my green card is suspended I will not have the right to appeal the decision and will be refused entry into the USA for 10 years.

20. Australia post claimed that I have used this excuse for not attending the AAT hearings in 2015. not true during this time I was wrongly charged with a criminal offence in the USA and was not allowed to leave the country or state.

21. American citizenship will allow me the freedom to live in Australia and still have to freedom enter the USA without harassment or fear of being denied entry. This I stated under oath at the AAT tribunal.

22. Australia post have been trying to cease my employment on a number of occasions since my injury in 2001.

23. They claim I have given them a false address that being (address supplied) which I have used legally as a permanent address forever. since it is my parents permanent home and therefore the best way to contact me and all mail they receive gets forward to my ever changing address…” 5

[15] Mr Sambastian contends that his application should be adjourned until he can return to Australia. Alternatively, he has indicated that he would be willing to have the hearing undertaken by telephone as he could take steps to “setup a Wi-Fi hotspot to get internet access while simultaneously being on the phone.” 6

[16] In his substantive application and the submissions filed to date, Mr Sambastian raises concerns, amongst other matters, that in May 2017 he was “ordered back to work knowing that I was in the USA, no return to work plan was given. Insufficient time given for me to return to Australia.” 7 Mr Sambastian is seeking that he be reinstated and will contend that “Australia post needs to have my current physical condition checked and develop a suitable return to work plan in detailed writing so that my treating doctor can approve or modify it before I can commence a work program.”8

3. Australia Post’s position

[17] As set out earlier, Australia Post contends that Mr Sambastian should be required to return to Australia to prosecute his case, or alternatively, his application should now be dismissed.

[18] In support of its first position, Australia Post contends that:

● there is no evidence before the Commission on which it can be satisfied that the applicant is currently unable to return to Australia;
● the reasons given by Mr Sambastian in his email to the Commission of 27 September 2017 was at odds with the explanation he gave during the directions hearing. That explanation (that he has been a permanent resident of the USA since 2006) was only provided when the respondent submitted that he had given sworn evidence during proceedings before the AAT in December 2015;
● there is no evidence before the Commission on which it can be satisfied that the applicant's circumstances will change within a short period of time; and
● the request for the Commission to adjourn the hearing until he returns to Australia should be rejected on the basis that the period of adjournment sought is uncertain.

[19] In that regard, Australia Post contends that an assessment of Mr Sambastian’s history with regard to his USA citizenship reveals that he has stated that he has been in the process of obtaining that citizenship in various proceedings since April 2009 and is now “essentially saying the same thing, more than eight years later.” 9

[20] Further, it contends that it is unclear what impact the decision regarding his USA citizenship has on Mr Sambastian’s ability to leave the USA. That is, the supporting documentation provided by the applicant does not provide evidence that his green card has in fact been suspended or that he is unable to leave the USA while his application for citizenship is pending. Rather, it simply demonstrates that on 31 July 2017, he was interviewed by a Citizenship and Immigration Services officer and was informed that he passed the tests of English and USA history and government, which are presumably part of the requirements to obtain USA citizenship. The same form notified the applicant that a decision about his citizenship could not be made until he provided (i) proof of physical presence in the USA during the years 2012 until the present day; and (ii) evidence that he did not abandon his residence in the USA. The separate note headed “Attachment – Establishing Physical Presence and Residence” states that records show the applicant took a trip outside of the USA that lasted six months or more since he became a lawful permanent resident and he was therefore required to submit evidence that he did not abandon his residence before a decision regarding his citizenship could be made.

[21] Finally, Australia Post contends that the applicant's position regarding his immigration status is inconsistent with him being serious about prosecuting his application. He states that he is seeking to be reinstated by the Respondent. This is despite the fact that on his own application to the Commission, he is either unwilling or unable to leave the USA.

[22] In terms of Mr Sambastian’s request for the hearing to be conducted by telephone, Australia Post contends that this has already been rejected by the Commission. Further, the applicant has not provided any evidence on which the Commission could be persuaded to overturn its decision in this regard. Having internet access through his mobile phone will not enable him to have the facility to scan and/or print documents off for the purposes of cross-examination. In addition, it contends that the Commission should have regard to the fact that the applicant’s assertion that he can access the internet contradicts the information he provided to the Commission at the last directions conference.

4. Consideration

[23] The options open to the Commission in dealing with this application include the following:

● conduct the hearing of the application with a telephone link to Mr Sambastian in the USA;
● adjourn any hearing of the application until Mr Sambastian elects to return to Australia; or
● require Mr Sambastian to return to Australia if he wishes to continue with the application, and if he does not do so, dismiss the matter.

[24] The Commission’s consideration of these options involves an assessment of the circumstances of the parties and the relevant statutory charter which includes the following.

[25] Sections 577 and 578 of the FW Act provide as follows:

“577 Performance of functions etc by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) Is fair and just; and

(b) Is quick, informal and avoids unnecessary technicalities; and

(c) Is open and transparent; and

(d) Promotes harmonious and cooperative workplace relations.

Note: The President is also responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).

578 Matters the FWC must take into account in performing functions etc

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) The objects of this Act, and any objects of the part of this Act; and

(b) Equity, good conscience and the merits of the matter; and

(c) The need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

[26] The object of the FW Act is set out in s.3 and relevantly provides as follows:

“3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

… …

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and … …”

[27] The object of Part 3-2 Unfair Dismissal is provided in s.381 of the FW Act in the following terms:

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[28] Section 397 and 399 of the FW Act bear upon whether it is necessary to hold a hearing in this matter and provide as follows:

“397 Matters involving contested facts

The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.

… …

399 Hearings

(1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:

(a) the views of the parties to the matter; and

(b) whether a hearing would be the most effective and efficient way to resolve the matter.

(2) If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

(3) The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.”

[29] Mr Sambastian has already filed his materials and the substance of his unfair dismissal case appears to rely upon the following propositions:

● in 2012, the AAT found that Australia Post was liable for his injury, that he should have attempted the duties then offered and his suspension was lifted to enable him to go back to work for a rehabilitation program and get medical treatment;
● he was later again suspended from work for not completing the return to work program and a list of “bogus reasons”;
● the AAT determined (wrongly) that Australia Post had provided suitable duties; and
● Australia Post ordered him back to work knowing that he was in the USA, that there was no return to work plan given and that insufficient time was provided for him to return to Australia.

[30] Mr Sambastian’s fundamental proposition is that:

“I have not worked for Australia post since 2004 (sic – 2014) as they will not provide any suitable duties; will not train me for alternative work insisting that I return to work as a delivery officer; my right arm is still suffering from a torn tendon and I’m experiencing loss of function and pain in my right arm/ hand my left shoulder is still suffering from a suspected lateral tear of the rotator cuff. Australia post have terminated my employment only to eliminate a problem that they had created by forcing an injured worker back to work.” 10

[31] Australia Post’s case, based upon its initial response to the application, includes that:

“1. The Applicant was on workers compensation.

2. The Applicant’s compensation was suspended in October 2013 for not complying with his rehabilitation plan.

3. The Applicant lodged an appeal to the Administrative Appeal Tribunal (AAT) regarding the suspension of his compensation, on 7 April 2017 the AAT determined the Respondent had offered the Applicant suitable duties which he declined to carry out and upheld the suspension of the Applicant’s compensation for non-compliance with his rehabilitation plan.

4. The Respondent wrote to the Applicant on 19 May 2017 directing him to return to work by 29 May 2017 and advising him there are suitable duties for him to perform in line his previous rehabilitation plan.

5. The Applicant did not return to work by 29 May 2017 or make any contact.

6. The Respondent wrote to the Applicant again on 29 May 2017 advising him they are considering terminating his employment and giving him the opportunity to respond as to why his employment should not be terminated.

7. The Applicant sent an email to the Respondent on 5 June 2017 advising he intends to appeal the decision of the AAT to the Federal Court, he did not provide any further information to explain his absence from the workplace.

8. The Applicant was advised in writing on 9 June 2017 that his employment was terminated for not attending work from 29 May 2017 or providing a suitable explanation for his absence from that date.

9. Based on the Applicant not attending for work or giving any indication that he intends to return to work the decision to terminate his employment is appropriate in these circumstances.” 11

[32] Although Australia Post is yet to file its substantive materials, it is evident from the material that is already before the Commission that there are facts that are in dispute. In that light, and given the import of s.397 of the FW Act, it will be necessary to conduct a hearing or determinative conference in order to hear evidence and have that evidence tested. During an earlier directions conference, having consulted with the parties, I formed the view that it was appropriate in this case that the matter be subject to a hearing. I remain of that view.

[33] I would also observe that some of Mr Sambastian’s case looks like the re-agitation of matters determined by the AAT. Further, part of the substantive case will involve consideration as to whether the direction to require Mr Sambastian to return to work was a lawful and reasonable instruction given the circumstances, and the applicant’s situation in the USA will also loom large in that context. Finally, to the extent that I would be required to deal with medical evidence and the credibility of the parties’ position in that context, Mr Sambastian has not provided any such medical evidence and any of that material relied upon by Australia Post would need to be put to the applicant in a procedurally fair manner.

[34] The parties have advised the Commission that in any substantive hearing, Mr Sambastian will give evidence and that Australia Post will lead two witnesses. I proceed on the basis that it is very likely that each of these witnesses will be subject to challenge and will need to be cross-examined.

[35] In light of the above, it is convenient to firstly deal with the proposal that a hearing be conducted with a telephone link for Mr Sambastian. In a directions conference conducted on 10 October 2017, Mr Sambastian indicated in relation to his capacity to access documents during any hearing that:

“I haven’t got internet here. I can’t get internet here. I’m a bit off the grid…I can only get internet from my phone but I can’t be on the phone at the same time as using the internet.” 12

[36] In his more recent submissions, Mr Sambastian has suggested that he could, in effect, set up a Wi-Fi hotspot and access documents whilst participating on the phone. Even putting aside the significant tension between these statements and the remaining uncertainty about Mr Sambastian’s practical circumstances, I am not satisfied that the hearing of this matter could be fairly, effectively or efficiently conducted having him participate by telephone from the USA. Amongst other considerations leading to that conclusion:

● Mr Sambastian is not only the key witness in his case, he is not represented and would therefore need to conduct the entirety of his case by telephone;
● there are substantive matters for the Commission to hear evidence about;
● there are issues of credibility – already directly raised by Australia Post in relation to Mr Sambastian – and potentially in relation to the Australia Post witnesses, given that the application seeks to suggest improper motives for the dismissal decision;
● sound quality and consistency with international mobile telephones can be problematic; and
● Mr Sambastian and the other witnesses will need to be taken to documents, and in all probability, multiple documents, and I am not satisfied that this can be done effectively or fairly to all parties over the telephone, even if I were to accept Mr Sambastian’s most recent assertions on face value.

[37] Accordingly, I do not consider that it is appropriate to conduct the hearing in this matter with Mr Sambastian appearing by telephone.

[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.

COMMISSIONER

Appearances:

A Sambastian, the applicant, on his own behalf.

K Stewart (of counsel) with A Thompson of Minter Ellison, both with permission for the Australian Postal Corporation.

Further Directions Conference details:

2017

October 10

By Telephone.

Final written submissions:

Australia Post: 13 and 24 October 2017.

Mr Sambastian: 20 October 2017.

 1   A non-compliance hearing was conducted by Platt C on 27 September 2017.

 2   Written submission of 20 October 2017.

 3   Sambastian v Australian Postal Corporation [2017] AATA 448.

 4   Sambastian v Australian Postal Corporation [2017] FCA 1232.

 5   Sambastian written submission of 20 October 2017 – references to attachments removed.

 6   Ibid.

 7   Sambastian witness statement and submissions, 2 October 2017.

 8   Sambastian written submission of 20 October 2017.

 9   Australia Post written submissions of 13 October 2017.

 10   Sambastian witness statement and submissions, 2 October 2017.

 11   Form F3 Employer Response.

 12   Audio recording of Directions Conference 10 October 2017.

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