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Postie Loses Unfair Dismissal Claim After Being Absent From Work For A Decade

Postie loses unfair dismissal claim after being absent from work for a decade

An injured Australia Post worker who lost his job after refusing a directive to return to work after a decade off, has lost his unfair dismissal claim.

The worker claimed there was no acceptable return to work plan in place, even though he had spent some of the ten years living and working in the United States.

Postie received workers comp for a decade

Armand Sambastian started working as a motorbike postie in Adelaide in 1999, but suffered a shoulder injury in 2001 while delivering mail.

He received two weeks of workers compensation and returned to work, but said he was unable to perform full time duties on an ongoing basis.

He sustained another injury in 2002, he said, as a result of the continuing problems with his shoulder.

With the exception of a few days in 2004 and 2013, Mr Sambastian remained absent from work, receiving workers compensation payments until a decision was made by Australia Post to suspend the payments in 2013.

Australia Post believed worker was fit to work

Australia Post believed that Mr Sambastian was fit to undertake modified duties in line with a rehabilitation plan, something he disagreed with, so he sought to appeal the suspension of his compensation payments at the Administrative Appeals Tribunal.

By then, Mr Sambastian had moved to the United States, where he was living and working, having secured a Green Card.

Australia Post warned Mr Sambastian that his employment was under review, eventually dismissing him on 9 June 2017 on the basis of his refusal to attend work.

Unfair dismissal claim

Mr Sambastian took his case to the Fair Work Commission seeking reinstatement.

He argued his dismissal was unfair because the decision that he return to work was made despite Australia Post knowing that he was in the USA, and there was no acceptable return to work plan in place, and that he was required to report for duty within nine days.

He also argued that a further medical assessment should have been made prior to him being directed to return to work, and this couldn’t happen because Australia Post refused to pay for one.

For its part, Australia Post told the Commission that Mr Sambastian’s dismissal was valid as he had not attended work for a significant period of time, and that represented serious misconduct.  

It further argued that the dismissal was handled in a fair manner.

Direction to return work ‘lawful and reasonable’

Commissioner Peter Hampton found that the direction to return to work was lawful and reasonable.  

He said that although Mr Sambastian was in the USA, he did not tell Australia Post, and did not respond to the letter about his employment being under review.

Further, the Commissioner noted that at no time did Mr Sambastian say that he was incapable of returning to work under the rehabilitation plan.  

Commissioner Hampton ruled that his failure to act on a reasonable direction was grounds for dismissal, and the dismissal was not harsh, unjust or unreasonable.

Worker had it ‘too good for too long’

Miles Heffernan, Director of Litigation at Industrial Relations Claims, said Mr Sambastian had it too good for too long.

“If you disobey a workplace direction, the Fair Work Act gives a green light for an employer to instantly dismiss you, so long as the direction is lawful,” he said.

“That extends to even directing you to do something that is outside your day job – but that you can do.

“In this case, it is unfathomable for someone who is being paid compensation for an injury, and is working overseas, and who ignores the direction of his employer, to then cry foul when he loses his job,” Mr Heffernan said.

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