[2018] FWC 741 [Note: An appeal pursuant to s.604 (C2018/1159) was lodged against this decision- refer to Full Bench decision dated 8 May 2018 [[2018] FWCFB 2316] for result of appeal.]
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, 8 FEBRUARY 2018

Application for an unfair dismissal remedy – whether valid reason for dismissal – long-term absence from work – accepted workers compensation claim for closed periods - AAT proceedings determined fitness to undertake rehabilitation plan – direction made to return to work – limited response provided by applicant – applicant did not return to work – whether direction lawful and reasonable - failure to follow a reasonable direction found - valid reason for dismissal existed – whether dismissal unfair in all of the circumstances including location and response of the applicant - procedural fairness afforded – consequences considered – dismissal not harsh, unjust or unreasonable - application dismissed.

1. Introduction and case outline

[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] There is no contest that Mr Sambastian was protected from unfair dismissal and that a valid application has been made.

[3] 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 Mr Sambastian to return to full duties on an ongoing basis. For a variety of reasons, including an apparent exacerbation of the injury and other events, some of which are in dispute, this has not occurred.

[4] There have been a series of legal 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). Other than a few days in 2004 and 2013, Mr Sambastian has not undertaken work with Australia Post since 2002 and for much of the time since late 2013 or early 2014, he has resided in the United States of America (USA).

[5] According to the originating application, Mr Sambastian was dismissed by Australia Post on 9 June 2017 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. The immediate context for the dismissal is that in April 2017, the AAT determined 1 that Mr Sambastian was entitled to receive workers compensation payments for two closed periods (7 to 28 March 2013 and 17 September 2012 to 28 March 2013) but that the rehabilitation program established by Australia Post was reasonable and the suspension of Mr Sambastian in light of his refusal to participate would not be overturned.

[6] On 31 October 2017, I issued a decision 2 concerning the programing and listing of the matter for hearing.

[7] On 17 November 2017, I issued a further decision 3 in response to an application made by Australia Post to dismiss that application associated with Mr Sambastian’s location (the USA). I did not consider it appropriate to dismiss the s.394 application. Rather, the matter was set down for hearing on 1 February 2018 on the basis that Mr Sambastian would return to Australia as indicated to participate in the proceedings, which subsequently occurred.

[8] The substance of Mr Sambastian’s contention that the dismissal was unfair is as follows:

  The direction that he return to work was unreasonable because it was made despite Australia Post knowing that he was in the USA and there was no (acceptable) return to work plan in place;

  The direction also required him to report for duty 9 days after it was issued and this was also unreasonable given the above circumstances; and

  He had advised Australia Post that he was appealing the AAT decision and the consideration of his position should have awaited the outcome of that review.

[9] Mr Sambastian contends that a further medical assessment should have been made prior to him being directed to return to work and that he was unable to obtain medical advice from his Doctor as Australia Post had suspended him without pay and refused to pay for his medical expenses.

[10] Mr Sambastian also contends that Australia Post did not ever genuinely contemplate his return to work and sought to keep him suspended indefinitely. Further, the dismissal was undertaken to avoid having to deal with him as a worker who had been injured at work and not treated appropriately through the fault of Australia Post.

[11] Mr Sambastian seeks reinstatement to his former position, albeit on somewhat of a conditional basis consistent with his view about the prerequisites for any return to work.

[12] Australia Post was represented with permission 4 by Ms Stewart of counsel. Australia Post contends that there was a valid reason for dismissal based upon the conduct of Mr Sambastian. In support of that proposition, Australia Post contends that Mr Sambastian had not attended work for a significant amount of time. The decision of the AAT prompted it to send correspondence to Mr Sambastian requesting that he return to work in accordance with his (approved) rehabilitation plan. In the absence of a response to that correspondence, Australia Post gave notice of its intention to terminate Mr Sambastian’s employment on 29 May 2017 and provided him with an opportunity to provide any further information. Mr Sambastian responded to that intention, advising only that he would appeal the decision of the AAT.

[13] Australia Post contends that Mr Sambastian’s conduct represents both serious misconduct and a valid reason for dismissal. It further contends that the dismissal was handled in a procedurally fair manner and that the dismissal was not unfair on any grounds.

[14] Australia Post submits that the application should be dismissed and that no remedy is appropriate in all of the circumstances.

2. The evidence before the Commission

[15] Mr Sambastian provided various statements 5 in support of his position and in response to that advanced by Australia Post. He also gave sworn evidence in which he confirmed his position in relation to the various factual assertions contained in those documents.

[16] Amongst the documents provided by Mr Sambastian was a bundle of three radiology reports 6 provided to his treating Doctor in 2013. These arose from “Ultrasound Guided PRP Injections” of Mr Sambastian’s right elbow.

[17] Australia Post provided witness statements and led evidence from the following:

  Mr Tony Stavropoulos – Head of Workplace Relations HR e-commerce delivery – who at the time was the Workplace Relations Manager for the division in which Mr Sambastian was employed and provided advice in relation to the dismissal; and

  Mr Neville Clark – State Manager – Letter and Mail Delivery Network SA/NT and the manager who had delegated authority to make decisions in relation to the dismissal of Mr Sambastian.

[18] In addition, Australia Post provided various documents, including the communications between the parties in the lead up to the dismissal. Further, a copy of the June 2017 AAT decision and some of the transcript of those proceedings 7 was tendered by Australia Post and subject to some submissions by the parties.

[19] There is no medical evidence before the Commission beyond the brief radiology reports.

[20] In general terms I found that each of the witnesses gave their evidence openly and honestly. However, Mr Sambastian had a tendency to be very subjective and somewhat naive in his view of events. This included the tendency for Mr Sambastian to make broad allegations that were an exaggeration of the actual circumstances. This does not mean that I have discounted his evidence entirely; however, I have treated it with some caution.

[21] I found that the evidence of Mr Stavropoulos and Mr Clark was credible and convincing.

3. Findings about the events leading the dismissal

[22] Mr Sambastian commenced employment with Australia Post as a Postal Delivery Officer on 24 June 1999. He had earlier worked for a labour hire business providing services to the respondent.

[23] In August 2001, Mr Sambastian injured his right shoulder in the course of performing his delivery duties and received workers compensation payments for a period of about two weeks before returning to duties. In March 2002, Mr Sambastian sustained a further injury and he contends that this was the result of continuing problems with his right shoulder.

[24] The cause of any continuing injury and/or medical status was apparently in dispute and in 2005, the AAT determined that there was a compensable claim and subsequently an operation was performed on Mr Sambastian. After that operation, Mr Sambastian was due to return to work but instead took a year off work without pay and indicated that this would enable his injuries to properly heal.

[25] With the exception of a few days in 2004 and 2013, Mr Sambastian remained absent from work, receiving, or being entitled to, workers compensation payments until a decision was made by Australia Post to suspend his right to compensation pursuant to s.19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in March 2013. Australia Post apparently considered that Mr Sambastian was fit to undertake the modified duties that had been offered to him pursuant to a rehabilitation plan and that he had failed to undertake the rehabilitation plan.

[26] Mr Sambastian had contrary medical advice and he filed an application under the SRC Act with the AAT for review of the decision to suspend his compensation payments. He apparently remained absent from work on unpaid “leave” pending the outcome.

[27] In late 2013 or early 2014, Mr Sambastian travelled to the USA and lived and worked there under the terms of a Green Card. The conditions associated with that Green Card and certain other developments meant that there were limitations upon Mr Sambastian’s capacity or willingness to return to Australia. I note that later, Mr Sambastian applied for citizenship of the USA and this also meant that he was unable to leave the USA without significantly compromising that application. 8

[28] I accept that amongst other reasons that Mr Sambastian had for living in the USA, he was, as a result of some accommodation that was available to him and other circumstances, able to live more cheaply than in Australia.

[29] A hearing was conducted by the AAT in relation to the SRC application in December 2015 and judgment was delivered on 7 April 2017. The AAT concluded 9 that there was a compensable claim and Australia Post was liable to pay Mr Sambastian in respect of certain closed periods; but otherwise upheld the decision to suspend his right to compensation as at and from 28 October 2013. I understand that Mr Sambastian did not receive the compensation for the closed periods as he declined to provide his account details to Australia Post.

[30] I also note that during the course of the AAT proceedings in December 2015, Australia Post became formally aware that Mr Sambastian was residing in the USA, was a Green Card holder and undertaking some paid work, and was applying for USA citizenship.

[31] On 19 May 2017, Australia Post wrote to Mr Sambastian in the following terms:

“I am writing to you following the outcome of your AAT Hearing on 7 April 17. The decision was that Australia Post is liable for incapacity from 17 September 2012 to 28 March 2013 and that your compensation is to remain suspended due to you not complying with your Rehabilitation Plan.

Given the above, and as previously stated to you on 25 July 13 there are suitable duties for you to perform in line with your previous Rehabilitation Plan at Marleston Delivery Centre, 65 Galway Avenue Marleston and you are therefore directed to return to work at this location by no later than Monday 29 May 2017 at 6am.

Failure to follow the above direction may impact on your on-going employment with Australia Post.

Confidential counselling support is also available to you through Australia Post’s Employee Assistance Program (EAP). You can make an appointment with our EAP counselling providers by calling 1300 *** ***.

Please contact myself on 08 8309 **** if wish to discuss this matter further.” 10

[32] Mr Sambastian could not recall reading this letter and his evidence as to whether he received and read the email which attached the document was equivocal. This included that he may have read the email but not the attached letter. I accept that in sending a copy to the only known physical address for Mr Sambastian, which is the address he has used in this matter, and providing a copy to his email address, Australia Post took all reasonable steps to communicate with the applicant.

[33] In any event, the subsequent letter of 29 May 2017 was received and read by Mr Sambastian and it provided as follows:

Notification of Employment Review

I refer to my previous letter dated 19 May 2017 regarding your ongoing absence from work since 4 December 2016 and to your failure to return to work as directed.

Due to your failure to co-operate with respect to the direction to return to work at 6am today (29 May 2017) at Marleston Delivery Centre, 65 Galway Avenue Marleston, Australia Post is now considering termination of your employment.

Australia Post considers that your conduct above amounts to a failure to comply with a lawful and reasonable direction and constitutes serious misconduct justifying the termination of your employment.

You were given an opportunity to provide an explanation or return to work by way of letter dated 19 May 2017. You have not returned to work or contacted me to discuss your return to work.

To assist us in determining this mater I invite you to provide me with any additional material or advice to demonstrate why your employment should not be terminated that you would like us to consider prior to us making any final decision.

Please provide me with any information you wish to be considered by close of business Monday 5 June 2017.

If we do not hear from you by this date we will make a decision based on the information at hand at this time, which may include a decision to terminate your employment.

Please contact me on 08 8309 **** or email dale******@*******.com.au if you wish to discuss this matter further.” 11

[34] On 5 June 2017, Mr Sambastian emailed the following response to Australia Post:

“i am in the process of applying to the federal court for an appeal to the decision made by DP Bean

i am having Justice net applying to the federal court of an appeal

i will forward your letter to justice net to get advise [sic]” 12

[35] I understand that the reference to the decision made by DP Dean is to the relevant AAT decision discussed earlier in these reasons.

[36] On 9 June 2017, Australia Post determined that it would dismiss Mr Sambastian and wrote to him in the following terms:

Notification of Cessation of Employment at Australia Post

I refer to correspondence from Dale Ellis (Delivery Manager, Marleston Delivery Centre) dated 29 May 2017 regarding your ongoing absence from work and advising you that Australia Post was seriously considering terminating your employment. You were given the opportunity to provide any information for consideration prior to a decision being made.

I note you provided an email response dated 5 June 2017 and I have taken that into consideration in making my decision.

You were directed to return to work at Marleston Delivery Centre on Monday 29 May 2017. You failed to return to work on that date and have not attended for duty or provided a suitable explanation for your absence since that date.

I consider your actions as described above in failing to comply with a lawful and reasonable direction amounts to serious misconduct. Therefore you are formally advised that your employment is terminated with immediate effect from the date of this letter. Termination for serious misconduct does not require any payment in-lieu of notice.

Any final payments will be made to you as soon as possible after this date.

Should you wish to consider your rights, including under the Fair Work Act 2009, in respect to legal remedies, including the time limits that apply, you will need to seek independent external advice.” 13

[37] On 19 July 2017, Mr Sambastian lodged his appeal with the FCA against the AAT decision. This was, in reality, an application seeking an extension of time to appeal the decision. That application was dismissed 14 by the FCA on 13 October 2017 and Mr Sambastian is apparently seeking further review of that decision.

[38] I note also that in this case, Mr Sambastian makes various criticisms of the medical advice provided to and relied upon by Australia Post. I am not in a position to make any findings about these matters given the nature and extent of the evidence that is before the Commission and my present statutory charter. I also note that these issues are largely matters for the AAT and the FCA.

[39] I further note that Mr Sambastian contends that Australia Post had monitored his movements in and out of Australia and as a result should have been aware that he was in the USA at the time of his dismissal. This arose from the fact that during the AAT hearing, he was cross-examined about certain international travel movements. Based upon the limited material that is before the Commission, including the transcript of those proceedings, it is probable that this arose from the fact that flight details were subpoenaed in the lead up to those proceedings in 2015 and that Australia Post did not otherwise maintain a watching brief on the applicant’s travel. I am however satisfied that Australia Post knew that Mr Sambastian was in the USA in December 2015 and would have reasonably suspected that this remained the case. This is consistent with the evidence of the Australia Post witnesses.

4. Was Mr Sambastian’s dismissal unfair within the meaning of the FW Act?

[40] Section 385 of the FW Act provides as follows:

385 What is an unfair dismissal

(1) A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[41] Mr Sambastian was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.

[42] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[43] The FW Act relevantly provides as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal is related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[44] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.

[45] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Sambastian’s capacity or conduct (including its effect on the safety and welfare of other employees)

[46] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.15

[47] The failure to follow a lawful instruction or comply with policy which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee’s employment.16 It is however, clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.17 Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.18

[48] I consider that in the circumstances, the direction for Mr Sambastian to return to work was a lawful and reasonable instruction. That is, it had obtained a decision from the AAT that confirmed that the rehabilitation plan and associated work that it had offered Mr Sambastian was reasonable and the suspension of the applicant given his refusal was not overturned. In that context, it had reasonable grounds to require Mr Sambastian to return to work.

[49] In terms of the timeframes and the requirement, in effect, that Mr Sambastian return to Australia within 10 days of that notice, the following context is important. Although Australia Post knew in 2015 that Mr Sambastian was in the USA and might have presumed that this continued to be the case, the applicant did not advise Australia Post of that fact. Further, the fact that Mr Sambastian was in the USA was something that might have been taken into account, at least in terms of the extent of notice; however, the applicant did not respond to the letter of 19 May 2017 and did not confirm his location or raise any considerations associated with that location in his response to the letter of 5 June 2017. He did not, for instance, seek further time to respond.

[50] In addition, Mr Sambastian did not at any time indicate that he considered himself incapable of undertaking the duties in line with his previous rehabilitation plan or that he was seeking some further medical intervention or assessment before recommencing work. In any event, Mr Sambastian’s absence from Australia, which he was not willing to change until his USA citizenship was granted (this eventually occurred in late November 2017), made that somewhat problematic.

[51] Although it would be reasonable for Australia Post to presume that Mr Sambastian did not accept that part of the AAT decision which confirmed his suspension, it was entitled to act on the basis of that decision unless and until a contrary decision was made. It could also not assume that an appeal would be made, noting that an appeal was in fact not made within time, and was not in my view required to await whatever process might unfold without some proper basis for doing so.

[52] To the extent that Mr Sambastian’s circumstances arising from his USA citizenship application were a relevant consideration, as the status of that matter and the consequences for the applicant’s willingness to leave the USA were not known by Australia Post, it could not be expected to take those into account.

[53] In all of these circumstances, the failure of Mr Sambastian to comply with the direction to return to work was misconduct of the kind that provided a sound, defensible and well-founded reason for dismissal.

[54] I am satisfied that there was a valid reason for dismissal related to Mr Sambastian’s conduct.

Section 387(b) – whether Mr Sambastian was notified of the reasons for dismissal

[55] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.19

[56] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and clear terms.

[57] Given the facts of this matter, Mr Sambastian was notified of the reasons for dismissal.

Section 387(c) – whether Mr Sambastian was given an opportunity to respond to any reason related to his capacity or conduct

[58] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.

[59] This process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. 20

[60] In circumstances where Mr Sambastian had advised of his circumstances, including the issues associated with his citizenship application and his view about the need for some further medical assessment, I might have some concerns about the timeframes provided for the responses. However, Mr Sambastian had sufficient time to raise these and other relevant considerations and potentially seek further time prior to the dismissal decision, but did not do so.

[61] In all of the circumstances I find that Mr Sambastian was aware of the nature of the employer’s concerns about his conduct and had a reasonable opportunity to respond to these concerns.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Sambastian a support person

[62] There was no context in which Mr Sambastian sought to have a support person and accordingly there was no unreasonable refusal of such a request. This consideration does not arise in this case.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Sambastian – whether he has been warned about that unsatisfactory performance before the dismissal

[63] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work.21

[64] In this case, the dismissal was fundamentally related to conduct and as a result, this consideration does not arise.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

Section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[65] Australia Post is a large business and had access to human resource expertise in establishing the procedures leading to the dismissal and the dismissal itself.

Section 387(h) - other matters considered to be relevant

[66] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission22 and I have assessed this in reaching my final conclusions.

[67] In this case, Australia Post terminated the applicant’s employment for alleged serious misconduct and contended that this conduct met the definition of Regulation 1.07 of the Fair Work Regulations 2009. Mr Sambastian was not paid any notice or pay in lieu of notice. The absence of any notice or pay in lieu of notice may be a factor to be weighted into whether the dismissal was disproportionate to the conduct. 23 However, in the circumstances, given that Mr Sambastian had been on an extended period of unpaid leave (suspension which was endorsed by the AAT) , and was likely to continue on that basis for the foreseeable future, even if he were given formal notice of the termination of his employment, he would not have received any payment. Accordingly, it is not necessary for me to consider whether the dismissal constituted serious misconduct within the scope of the regulation. I have however considered the absence of notice and all of the relevant circumstances in reaching my assessment of the dismissal.

[68] I have also taken into account the length and nature of service involved with Mr Sambastian’s employment with Australia Post. This includes the fact that he has experienced one or more work related injuries and that these have been found to lead to compensable absences from work for certain periods. This is a mitigating factor when assessing the reasonable consequences of the misconduct.

[69] Because nothing specific has been put to me, I accept, without finding, that Mr Sambastian’s dismissal may have some implications for his capacity to pursue his SRC Act claim. Further, the dismissal clearly means that without intervention to alter that decision, Mr Sambastian will not have further employment in Australia with Australia Post. Given his circumstances, this impact may be significant, notwithstanding the recent acceptance of his USA citizenship.

[70] In all of the circumstances, these and other consequences for Mr Sambastian were unfortunate but arose in large part from the manner in which he conducted his affairs following the AAT decision. These consequences must also be weighed against the seriousness and impact of the fact that Mr Sambastian did not comply with what I have found to be a lawful and reasonable instruction to return to work.

Conclusions on the dismissal

[71] In determining matters in this jurisdiction, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in that position.24

[72] Further, as outlined earlier, the FW Act requires a global assessment having regard to the various relevant statutory considerations. This is reinforced by the objects relating to Part 3-2 Unfair Dismissal of the FW Act in s.381 which relevantly provides as follows:

381 Object of the Part

… …

(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.”

[73] As revealed in various decisions of the Commission (and the Court), each case must be considered in its own circumstances and it is appropriate, amongst other factors, to have regard to whether the procedural deficiencies made any difference to the fairness of the outcome.25 In this case, I have not found procedural deficiencies with the approach adopted by Australia Post given all of the circumstances.

[74] Having regard to my findings of fact based upon the evidence, and having considered each of the matters established by s.387 of the FW Act, in all of the circumstances evident in this case, I am not satisfied that the dismissal of Mr Sambastian was harsh, unjust or unreasonable.

5. Conclusions and orders

[75] As a result, the dismissal was not unfair within the meaning of the FW Act. This application must therefore be dismissed and an order26 to that end is being issued with this decision.

COMMISSIONER

Appearances:

A Sambastian, the Applicant in person.

K Stewart (of counsel), with permission, for Australian Postal Corporation.

Hearing details:

Adelaide

2018

1 February.

Printed by authority of the Commonwealth Government Printer

<PR600109>

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

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

 3   Armand Sambastian v Australian Postal Corporation T/A Australia Post [2017] FWC 54.

 4   Reasons for this determination were supplied to the parties at the time of that decision.

 5   Exhibits A1, A2, A3 and A5.

 6   Exhibit A4.

 7   Exhibit R3.

 8   These circumstances were discussed in the two interlocutory decisions of the Commission made in the lead up to the hearing of this application.

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

 10   Exhibit R2, p. 9.

 11   Exhibit R2, p. 11.

 12   Exhibit R2, p. 13.

 13   Exhibit R2, p. 15.

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

15 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at [36].

16 Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.

17 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 (17 March 2000) per Ross VP, Williams SDP, Hingley C; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 (11 May 2000) per Ross VP, Acton SDP and Cribb C, and Rode v Burwood Mitsubishi AIRCFB Print R4471 (11 May 1999) per Ross VP, Polites SDP, Foggo C.

18 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 (8 October 2002), per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

19 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

20 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

21 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

22 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

 23   However, this is not a substitute for the consideration as to whether the dismissal was for a valid reason – see Annetta v Ansett Australia Ltd (2000) 98 IR 233 and Potter v WorkCover Corporation (2004) 133 IR 458

24 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685; Miller v University of New South Wales (2003) 132 FCR 147 and [13].

25 See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples.

26 PR600110.