Absent for a decade: injured postie sacked

Absent for a decade: injured postie sacked

By Daniel Sleiman on 7 March 2018 An injured Australia Post worker who refused to follow a directive to return to work was not unfairly sacked, the FWC has ruled.  

Background 


Armand Sambastian started working at Australia Post on 24 June 1999 delivering mail on a motorcycle. He sustained an injury in 2001 to his right shoulder while performing delivery duties.

He received two weeks of workers compensation and returned to work. His return did not last long as he was unable to perform full duties on an ongoing basis, despite various rehabilitation programs which were designed to facilitate his return.

In March 2012 he sustained a further injury which he contended was because of continual problems stemming from his right shoulder injury.
 
In 2005 the Administrative Appeals Tribunal (currently the NSW Civil and Administrative Tribunal) determined that Mr Sambastian had a compensable claim. The applicant had surgery on his shoulder following the AAT’s decision and took an unpaid year off work.
 
Mr Sambastian remained absent from work with the exception of a few days in 2004 and 2013. He received compensation payments until Australia Post decided to suspend his right to compensation under s19 of the Safety, Rehabilitation, and Compensation Act 1988

Australia Post considered that Mr Sambastian could return to work and have modified duties. Mr Sambastian disagreed and sought an appeal of the decision to suspend his compensation. 

His appeal was heard in December 2015 and a judgment was issued on 7 April 2017. The AAT decided that he was entitled to compensation for a closed period (17 Sep 2012-28 March 2013) but it did not overturn the respondent’s decision to suspend his compensation.

Following the decision, Australia Post advised Mr Sambastian that he return to work in line with his rehabilitation plan. He did not return to work and the respondent sent a further letter notifying him that his employment was under review.

Mr Sambastian responded to the employment review letter stating that he would appeal the AAT decision.
 
On 9 June 2017 Australia Post notified Mr Sambastian that his employment was being terminated. On 19 July 2017 the applicant lodged an appeal with the Fair Work Commission claiming he was unfairly dismissed. 

The law 


If a person is dismissed, and that dismissal is harsh, unjust or unreasonable, then it is unfair (s385 of the Fair Work Act). There are several criteria for setting out whether a dismissal is harsh, unjust or unreasonable and these include whether or not there was a valid reason, whether the person was notified of the reason and whether the person being fired was given an opportunity to respond (s387).

Arguments 


Mr Sambastian argued that the requirement he return to work was unreasonable because at the time he was in the US. He further argued Australia Post should have waited until the outcome of his appeal before ordering him to return to work. Mr Sambastian also submitted that Australia Post did not genuinely contemplate his return to work and sought to keep him suspended indefinitely. 

The respondent argued that Mr Sambastian’s dismissal was valid as he had not attended work a for significant period of time, even after the AAT’s decision to suspend his compensation. Australia Post contended that the actions of the applicant amounted to serious misconduct. 

Legal question 


The commission needed to determine whether the applicant’s dismissal was harsh, unfair, unreasonable under the Fair Work Act 2009 in particular by considering the criteria under section 397.

Decision 


Commissioner Hampton considered a number of relevant criteria under s397 of the Act. 

Was there a valid reason for terminating the applicant’s employment? 


The commission found that the direction to return to work was lawful and reasonable. Although Mr Sambastian was in the US, and Australia Post could have presumed he was still there, he did not advise the respondent of that fact, and did not respond to the letter about his employment being under review. 

The commission also noted that at no time did Mr Sambastian say that he was incapable of returning to work under the rehabilitation plan. The failure to act on a reasonable direction was grounds for dismissal. 

Was the applicant notified of the reasons for his dismissal? 


Letters to Mr Sambastian outlined the reasons for dismissal. 

Was the applicant given a chance to respond? 


The commission found Mr Sambastian had sufficient time to respond despite being overseas. He could have sought extra time to respond.

Order


The commission ruled that Mr Sambastian's dismissal was not harsh, unjust or unreasonable.

The application was dismissed. 

Armand Sambastian v Australian Postal Corporation T/A Australia Post [2018] FWC 741
 

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