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…

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.

Continue reading Armand Sambastian v Australian Postal Corporation T/A Austra...

Details

AGLC: Armand Sambastian v Australian Postal Corporation T/A Australia Post [2017] FWC 5453
Case: [2017] FWC 5453
Decision Date: 31 OCTOBER 2017

CaseChat Overview and Summary

The case of Armand Sambastian against Australian Postal Corporation T/A Australia Post, presented to the Fair Work Commission, involves a claim for unfair dismissal. The applicant, Mr. Sambastian, resides in the United States and asserts that he is unable to return to Australia for the proceedings. The central issue before the court was the appropriate manner in which to conduct future proceedings, particularly the substantive hearing. The court had to decide whether the proceedings should be conducted via telephone due to the applicant's inability to travel to Australia, or if the matter should be adjourned until the applicant could return. The court also considered whether the matter should be dismissed if the applicant did not confirm his return to attend the hearing.

In reaching its decision, the court carefully weighed the need for the proceedings to proceed against the practicalities of the applicant's situation. The court recognised the applicant's claim that he was currently unable to return to Australia but emphasised the importance of the proceedings being conducted in a manner that allowed for full participation and fairness. The court concluded that while it was necessary to accommodate the applicant's circumstances, it was also crucial to ensure that the proceedings could proceed without undue delay. Therefore, the court decided that the matter should be scheduled for a hearing, subject to confirmation that the applicant would return to Australia to attend. If the applicant did not provide this confirmation, the matter would be dismissed.

Ultimately, the court ordered that the matter would proceed to a hearing, but only if the applicant confirmed his return to Australia. If no such confirmation was received, the matter would be dismissed. This decision balanced the need for the proceedings to move forward with the practical constraints faced by the applicant. The court's order reflects a pragmatic approach, aiming to ensure the efficiency of the legal process while accommodating the applicant's current situation.

Orders