Al-Attar v Consulate General of the Republic of Iraq, Sydney - [2021] FCCA 500

FEDERAL CIRCUIT COURT OF AUSTRALIA
Al-Attar v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 500

File number(s): SYG 1756 of 2019

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 19 March 2021

Catchwords: INDUSTRIAL LAW – general protections – applicant employed as translator by a consulate (Consulate) pursuant to a contract of employment for a fixed term – the Consulate informed the employee before the term of his contract of employment ended that the employee’s contract will not be renewed – the Consulate so informed the employee after the employee had made enquiries of the Fair Work Ombudsman (FWO), and after he made a complaint to, and made an enquiry of, the Consulate in relation to his employment, and after he had lodged an application with the Fair Work Commission (FWC) alleging bullying – the employee claims he was dismissed because he had made enquiries of the FWO and complaints to, and enquiries of, the Consulate in relation to his employment, and because he had lodged a bullying complaint with the FWC – whether the employee’s enquiries of the FWO, complaints to and enquiries of the Consulate, and lodgement with the FWC of a bullying complaint constituted the exercise of a workplace right – whether at the time the Consulate notified the employee it would not renew the employee’s contract of employment the Consulate was a prospective employer and the employee a prospective employee – whether by notifying the employee that the Consulate would not renew the employee’s contract of employment the Consulate as prospective employer refused to employ the employee and therefore took adverse action against the employee as prospective employee – whether the Consulate decided not to renew the employee’s contract of employment for the reason stated by the Consulate, namely, that the Consulate’s policy was to employ only qualified translators which the employee was not and to eliminate the financial burden of having to pay the employee as an unqualified translator in circumstances where the Consulate also had to pay for qualified translators – the Consulate did not discharge the burden that was on it to show it decided not to renew the employee’s contract of employment for the reasons it claimed it did not renew the employee’s contract of employment – the Consulate as the prospective employer therefore is presumed to have taken adverse action against the employee as prospective employee because the employee had exercised his workplace rights by making enquiries of the FWO and by lodging a bullying application with the FWC.

Legislation:
Consular Privileges and Immunities Act 1972 (Cth)

Fair Work Act 2009 (Cth) ss 12(1), 14, 30B, 30C(1), 30D, 30G(1), 30L, 337, 339(a), 339(b), 340, 341(1)(b), 341(1)(c), 342, 360, 361(1)

Industrial Relations (Commonwealth Powers) Act 2009 (NSW)

Vienna Convention on Consular Relations Arts 1(1), 3, 35(1), 61

Cases cited:
Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893

Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204

Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124

PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271

Stephens v Australian Postal Corporation [2014] FCA 732

Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771

Visscher v The Honourable President Justice Giudice [2009] HCA 34

Willis Australia Group Services Pty Limited v Mitchell-Innes [2015] NSWCA 381

Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499

Number of paragraphs: 107

Date of last submission/s: 15 September 2020

Date of hearing: 1, 2, 3, 4 and 7 September 2020

Place: Sydney

The Applicant: Appeared in person

Counsel for the Respondent: Mr J Fernon SC

Solicitor for the Respondent: Macpherson Kelley
ORDERS

SYG 1756 of 2019

BETWEEN:
ALI AL-ATTAR

Applicant

AND:
CONSULATE GENERAL OF THE REPUBLIC OF IRAQ, SYDNEY

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

19 MARCH 2021

THE COURT DECLARES THAT:
1.The respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) by notifying the applicant by letter dated 27 November 2018 that it would not renew the applicant’s contract of employment that was due to end on 31 December 2018.

THE COURT ORDERS THAT:
2.The matter be listed at 9:30 am on 26 March 2021 for directions for the purpose of fixing at that directions hearing a time and day to hear submissions on:
(a)the denomination in which the order for compensation should be expressed;
(b)whether it is open to the Court to find that the applicant claims the respondent:
(i)failed to provide payslips to the applicant;
(ii)failed to pay superannuation in relation to the applicant; and
(iii)required the applicant to take annual and sick leave during the course of the year without allowing these benefits to accrue;

(c)whether it is open to the Court to consider whether the respondent took adverse action against the applicant on 27 November 2018 when Mr Witwit directed him not to return to the respondent’s premises; and
(d)if (b) or (c) or both are answered in the affirmative, what directions, if any should be made for the Court to be in a position to hear the claims referred to in (b) or to consider the question in (c).

REASONS FOR JUDGMENT
INTRODUCTION

The applicant, Mr Al-Attar, applies for relief under the Fair Work Act 2009 (Cth) (FW Act) against the Consulate General of the Republic of Iraq, Sydney (Consulate). Mr Al-Attar, who is not legally represented, claims the Consulate contravened s 340(1) of the FW Act by dismissing him from his employment as a translator because he made complaints or enquiries in relation to his employment, and because he initiated a bullying proceeding in the Fair Work Commission (FWC).
The Consulate accepts Mr Al-Attar was employed at the Consulate as a translator since 1 June 2016, and that his employment with the Consulate ended on 31 December 2018; but the Consulate denies it dismissed Mr Al-Attar. The Consulate claims Mr Al-Attar’s employment ended by effluxion of time in accordance with the terms of a contract of employment he signed on 1 May 2018 after the Consulate, by letter dated 27 November 2018, informed Mr Al-Attar that his contract of employment would not be renewed. Further, although the Consulate accepts Mr Al-Attar had entered into two other contracts of employment with the Consulate, one for one year commencing on 1 June 2016, and the other for the period 1 May 2017 to 30 April 2018, the Consulate claims it decided not to renew Mr Al-Attar’s employment after 31 December 2018 for a reason that did not include Mr Al-Attar’s having exercised any workplace right. The Consulate claims it did not renew Mr Al-Attar’s contract of employment because in July 2018 Mr Witwit, the Consulate’s then Acting Consul General, decided that, in accordance with a policy directive from the Iraqi Ministry of Foreign Affairs (Ministry), the translation services Mr Al-Attar had provided in the course of his employment needed to be provided by an accredited translator, not by Mr Al-Attar, who is not an accredited translator; and the Consulate wished to eliminate the financial burden of having to employ unqualified translators in circumstances where the Consulate was paying for qualified translators.
The principal questions I consider in these reasons for judgment, therefore, are whether the Consulate’s decision not to renew Mr Al-Attar’s employment contract constituted “adverse action” within the meaning of s 342 of the FW Act and, if it did, whether the Consulate decided not to renew Mr Al-Attar’s employment “because” Mr Al-Attar had made complaints or enquiries in relation to his employment, or because he initiated a proceeding with the FWC. I will also address at the end of these reasons whether Mr Al-Attar arguably makes any additional claims under the FW Act. The Consulate submits the only claim Mr Al-Attar has made, and the only claim the Consulate came prepared to defend, is Mr Al-Attar’s claim based on the circumstances in which his employment with the Consulate ended.
There is also one other set of issues; and these arise from the entity against whom Mr Al-Attar has brought the proceeding, namely, the Consulate. Mr Al-Attar and the Consulate assume the Consulate is a legal person that is capable of being sued, and that it is the Consulate that employed Mr Al-Attar. Further, the Consulate has not submitted the FW Act does not apply to it; and it has not raised any claim for immunity under the Vienna Convention on Consular Relations as incorporated into law in Australia by the Consular Privileges and Immunities Act 1972 (Cth) (Consular Convention). It will be necessary, however, to consider whether it is correct to dispose of the application on the premises that the Consulate is a legal person and, if so, that the Consulate is the person against whom Mr Al-Attar ought to have brought this proceeding. I will consider these issues later in these reasons. In the meantime, however, I will assume the Consulate is a person or body that is capable of being sued, and that it is the proper respondent to Mr Al-Attar’s claims.
COURSE OF HEARING
I heard Mr Al-Attar’s application for relief together with applications for relief under the FW Act two other former employees of the Consulate separately commenced in this Court. Those former employees are Ms Yalda and Mr Sultan, each of whom is also not legally represented. I heard the three matters together after I made orders in each proceeding to the effect that evidence in each proceeding be evidence in all proceedings.[1] Each of Mr Al-Attar, Ms Yalda, and Mr Sultan read their affidavits and was cross-examined by Mr Fernon SC on behalf of the Consulate. The Consulate then led its evidence, which largely consisted of affidavits made by Mr Witwit; and he was cross-examined by each of Mr Al-Attar, Ms Yalda, and Mr Sultan. The cross-examination proceeded on the basis that Mr Al-Attar, Ms Yalda, and Mr Sultan would each direct his or her cross-examination of Mr Witwit to matters that concerned each of their claims, and that Mr Witwit would not be cross-examined about matters on which he had already been cross-examined. Mr Al-Attar, Ms Yalda, and Mr Sultan made oral submissions in their own cases. Mr Fernon SC then made submissions on behalf of the Consulate in relation to the claims made by each of Mr Al-Attar, Ms Yalda, and Mr Sultan.
[1] I made these orders on 14 August 2020.
APPROACH
The determination of the principal questions turns on findings of fact I will make on the evidence. A significant area of inquiry, however, relates to two documents on which the Consulate relies. The first is a memorandum dated 10 August 2018 addressed to the Ministry (10 August 2018 memorandum). That memorandum purports to contain Mr Witwit’s recommendation that Mr Al-Attar’s employment, and the employment of another translator, Ms Yalda, not be renewed after 31 December 2018, and purports to record the reasons why their employment should not be renewed. The second document is a memorandum dated 1 November 2018 purportedly from the Ministry addressed to the Consulate (1 November 2018 memorandum) which the Consulate claims responded to the 10 August 2018 memorandum by authorising the Consulate not to renew Ms Yalda’s and Mr Al-Attar’s contracts of employment.
Ms Yalda submits, as does Mr Al-Attar, that the 10 August 2018 memorandum is an invention. By that I understand Ms Yalda and Mr Al-Attar to submit the 10 August 2018 memorandum was not created by Mr Witwit at the date on which or the purpose for which the memorandum represents it was prepared; it was not sent to the Ministry, if it was sent at all, on 11 August 2018; and, more broadly, it does not reflect any transaction or event that occurred before the Consulate decided not to renew Mr Al-Attar’s contract of employment. Neither Ms Yalda nor Mr Al-Attar expressly submit that the 1 November 2018 memorandum is also an invention. Ms Yalda, however, in her cross-examination of Mr Witwit, asked questions that put in issue the authenticity of what purports to be the Arabic version of the 1 November 2018 memorandum. In any event, Ms Yalda’s and Mr Al-Attar’s submissions that the 10 August 2018 memorandum is an invention necessarily calls into question the authenticity of a document – the 1 November 2018 memorandum – the Consulate claims was a response to the 10 August 2018 memorandum. Thus, an important question of fact in Mr Al-Attar’s claims, as in Ms Yalda’s claims, is whether the 10 August 2018 memorandum and the 1 November 2018 memorandum are what the Consulate claim them to be.
At the time I commenced writing these reasons for judgment I had already completed a draft of my reasons for judgment in relation to the claims Ms Yalda has made. I propose to publish those reasons for judgment (Yalda Judgment) when I publish these reasons for judgment.[2] In the Yalda Judgment I identified some principles that should guide me in assessing evidence, and, in particular, in assessing whether the 10 August 2018 memorandum and the 1 November 2018 memorandum are what the Consulate claim them to be. I also made findings about the authenticity of the 10 August 2018 memorandum and of the 1 November 2018 memorandum. I will repeat in these reasons for judgment those findings, but I will not reproduce the reasons on which I relied for making those findings; I will simply refer to the relevant paragraphs in the Yalda Judgment that contain my reasons. That means that the Yalda Judgment must be read with these reasons for judgment. The Yalda Judgment, however, also makes findings that are relevant to Mr Al-Attar’s claims. I have decided it would be convenient if I also set out in these reasons for judgment not only the findings I made in the Yalda Judgment, but also the reasons I there set out for those findings.
[2] Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499
I will therefore proceed as follows. First, I will set out the evidence in narrative form, and in the course of doing so make findings of fact. In making these findings, I rely on the principles I have identified in the Yalda Judgment.[3] Unless the context suggests otherwise, my stating a fact in these reasons without qualification is to be taken to be a finding of the fact I state. Next, I will then consider, on the basis of the findings I have made, whether the Consulate has taken any adverse action against Mr Al-Attar and, if so, whether the Consulate did so in contravention of s 340(1) of the FW Act.
[3] Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499, at [9]-[31]
EVIDENCE AND FINDINGS
Mr Al-Attar commenced his employment with the Consulate in Sydney on 1 June 2016 as a translator.[4] The Consulate classified Mr Al-Attar as a “locally engaged staff” (Local Employee), namely, a person who is either an Australian citizen or a permanent resident of Australia.[5] Mr Al-Attar’s direct supervisor was a Mr Mohanad Mahal, who held the position of Vice Consul.[6]
[4] Affidavit A M B Witwit 12.06.2020, [23]
[5] Affidavit A M B Witwit 12.06.2020, [18]
[6] Affidavit A M B Witwit 12.06.2020, [33]
Consulate’s practice in engaging Local Employees
The Consulate engaged each Local Employee for a fixed term on the terms set out in a written contract. Within one month before a contract of a Local Employee was due to expire, the Consulate’s administration manager provided or arranged to provide a draft contract of employment to the Local Employee. If the Local Employee wished to renew his or her current contract of employment, he or she would sign the draft contract.[7] The contract as signed by the Local Employee was then provided to the “Head of Mission”, being the Consul General, or Deputy Consul General, or such other person who acted as Consul General.[8] The Head of Mission then considered and had the ultimate say in determining whether to renew the contract with the Local Employee.[9]
[7] Affidavit A M B Witwit 12.06.2020, [20]
[8] See affidavit A M B Witwit 12.06.2020, [18], where Mr Witwit says that “consulates” are referred to as “Missions”.
[9] Affidavit A M B Witwit 12.06.2020, [21]
According to Mr Witwit,[10] whose evidence on this point I accept, it was not the Consulate’s practice to renew automatically a Local Employee’s employment contract. The contracts of Local Employees who had performance issues, for example, would be renewed, if at all, only after the employee had a meeting with the Consul General, or Deputy Consul General, or the administration manager. Additionally, when considering whether to renew a Local Employee’s contract of employment, the Head of Mission “was also required to consider any limitations placed on the Consulate by the Ministry, for example, budget constraints and regulations”. After receiving feedback about the relevant Local Employee’s performance from his or her supervisor, the Head of Mission “then made the decision . . . either to renew or not to renew the employment contract”. The Head of Mission would signify the Consulate’s decision to renew the Local Employee’s contract of employment by signing the contract.
[10] Affidavit A M B Witwit 12.06.2020, [21], [22]
The general practice of renewing employment contracts with Local Employees, as described by Mr Witwit, appears to have been followed in relation to Mr Al-Attar. On 1 May 2017 Mr Al-Attar signed a contract of employment for one year commencing on 1 May 2017, and that contract was signed by the Head of Mission on 3 July 2017; and on 1 May 2018 Mr Al-Attar signed a contract of employment for eight months, which the Head of Mission, Ms Anwar Alesi, signed on 27 June 2018.[11] The party with whom Mr Al-Attar signed the contract was designated “Consulate/Embassy of Republic of Iraq in Sydney represented by Head of Mission (Deputy Consul General) in his official capacity”.
[11] Exhibit AW-1, pages 9-12
31 March 2018 – Ministry issues regulation for employment of Local Employees
On 31 March 2018 the Ministry issued a memorandum to all of its diplomatic and consular missions abroad titled “Subject: Regulations related to the employment of the local employees for the Year 2018”.[12] The memorandum states that “the regulations related to the local employees of the year 2016 and the circulars attached thereto” were cancelled, and that the “New Regulations of the year 2018 related to the local employees attached shall be approved as from the date indicated above”. The memorandum attached a document titled “Regulations regarding the Employment of Local Employees” (2018 Regulation). Clause 9 is particularly relevant:
The Committee on the Employment of Local Employees set up within the Mission shall examine the applicants for the job title “Translator” from the Arabic language to the Local language and vice versa with a view to assessing their qualifications. The Applicant shall hold a related university certificate.
[12] Exhibit AW-1, pages 13-16
In his affidavit Mr Witwit says “from the start of the 2018 Regulations, all translators were required to hold tertiary qualifications”.[13] For the reasons I have given in the Yalda Judgment,[14] I find that that at no time did Mr Witwit, or the Head of Mission, or any other person who had authority on behalf of the Consulate to renew or terminate contracts of employment with Local Employees, understand or believe that the 2018 Regulation required the Consulate to employ as translators only persons who hold a “related university certificate”, or that it required the Consulate replace employees who occupied the position of translators but who did not hold a “related university certificate” with persons who did hold a “related university certificate”.
[13] Affidavit A M B Witwit 12.06.2020, [34]
[14] Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499
1 May 2018 – Mr Al-Attar signs employment contract

On 1 May 2018 Mr Al-Attar signed a contract of employment for eight months commencing on 1 May 2018. Given the practice by which the employment contracts of Local Employees were renewed, I find that the administration manager provided or arranged to provide to Mr Al-Attar a draft of the contract he signed by no earlier than one month before 30 April 2018, being the day on which the employment contract Mr Al-Attar signed on 1 May 2017 was due to expire.[15] There is no evidence of any performance issue relating to Mr Al-Attar. The Head of Mission, Ms Alesi, signed Mr Al-Attar’s employment contract on 27 June 2018.
[15] Exhibit AW-1, pages 19-26
Mr Witwit has given evidence about the reason why Mr Al-Attar’s contract was set for a term of eight months, rather than for one year. Mr Witwit says that in around May 2018, when he was in the role of Deputy Consul-General, he was not involved in the authorising of Mr Al-Attar’s employment contract. Mr Witwit says, however, that at around that time Ms Alesi, the Head of Mission, informed Mr Witwit that Local Employee contracts, including the contract in relation to Mr Al-Attar, were only going to be renewed for an eight-month term. Mr Witwit says he recalls discussing “this matter with Ms Alesi in a number of meetings”. Ms Alesi said words to the effect that the reason contracts were being renewed for eight months “was due to the fact that the 2018 budget for the Consulate had been set earlier that year and, notwithstanding the Ministry changed its guidelines for the employment of [Local Employees] in March 2018 . . . there were sufficient funds in the budget to accommodate the local employees’ salaries, including Mr Al-Attar’s salary, for the remainder of the calendar year”.[16]
[16] Affidavit A M B Witwit 12.06.2020, [27]
Mr Witwit, however, has also given evidence which I understand is intended to explain why Mr Al-Attar’s contract was renewed on 27 June 2018 in circumstances where, according to Mr Witwit, the 2018 Regulation required translators whom the Consulate employed to have tertiary qualifications, but Mr Al-Attar did not have such qualifications. Mr Witwit’s evidence is as follows:[17]
When Mr Al-Attar first started working at the Consulate it was not a requirement of the Ministry that translators hold tertiary qualifications. However, from the start of the 2018 Regulations, all translators were required to hold tertiary qualifications. I was in the role of Deputy Consul-General and as stated above I was informed by the then Consul-General that the budget for the 2018 year had already been set before the 2018 Regulations were issued and that there was sufficient in the budget for Mr Al-Attar’s salary to the end of the year. It was in that context I was informed that Mr Al-Attar’s contract was renewed for 8 months to the end of the calendar year.
[17] Affidavit A M B Witwit 12.06.2020, [34]
Mr Witwit had given similar evidence in relation to Ms Yalda; and the observations I made in the Yalda Judgment about Mr Witwit’s evidence apply equally to the evidence Mr Witwit has given in relation to Mr Al-Attar. First, on his own evidence, Mr Witwit was not involved in authorising Mr Al-Attar’s contract of employment. According to the ordinary course of renewing contracts of employment of Local Employees, a draft contract was provided to the Local Employee by the administration manager; and, once signed, the decision whether to renew the contract on the terms signed by the Local Employee rested with the Head of Mission or some other person who had authority to act for or as the Head of Mission. In the case of Mr Al-Attar’s contract of employment, that decision rested with, and was made by, the Head of Mission, Ms Alesi. In those circumstances, there is nothing to suggest there would have been any occasion on which Ms Alesi, the Consulate’s Head of Mission, would have had any discussion with Mr Witwit about the renewal of Mr Al-Attar’s contract in particular.
Second, Mr Witwit’s evidence reports what he says Ms Alesi said to him about why Mr Al-Attar’s contract had been set for a term of eight months; and I read Mr Witwit’s evidence as intending to imply that Ms Alesi decided to renew Mr Al-Attar’s contract of employment, notwithstanding Mr Al-Attar’s not being a translator who meets the requirements of what Mr Witwit says is the effect of the 2018 Regulation, because there were sufficient funds in the budget to maintain Mr Al-Attar’s employment until the end of 2018. Counsel for the Consulate in fact submits, on the basis of Mr Witwit’s evidence, that that is the reason Mr Al-Attar’s employment contract as a translator was renewed, notwithstanding his not meeting the requirements of what Mr Witwit says is the effect of the 2018 Regulation. There are three difficulties with this submission.
(a)Mr Witwit does not report statements by Ms Alesi to the effect that she was aware of the 2018 Regulation; that she understood the 2018 Regulation to require the persons whom the Consulate employed as translators must hold a tertiary qualification; or that she approved the renewal of Mr Al-Attar’s employment as a translator, notwithstanding his not holding any tertiary qualification, because there was money in the budget to pay for Mr Al-Attar’s employment up to 31 December 2018.
(b)The Consulate has not called Ms Alesi to give evidence; and it has given no explanation why Ms Alesi has not been called. In the absence of any evidence from Ms Alesi, I am not prepared to infer that Ms Alesi decided to renew Mr Al-Attar’s employment, notwithstanding Mr Al-Attar’s not being a translator who meets the requirements of what Mr Witwit asserts is the effect of the 2018 Regulation, because there were sufficient funds in the budget to maintain Mr Al-Attar’s employment until the end of 2018.
(c)That there was money available in the budget to pay for Mr Al-Attar’s employment until 31 December 2018 is incapable of rationally reconciling a state of affairs stated by Mr Witwit, namely, that the 2018 Regulation required, or those within the Consulate who had the authority to employ Local Employees believed or understood the 2018 Regulation required, that the Consulate employ as translators only persons who held tertiary qualifications, and the Consulate’s nevertheless deciding to engage Mr Al-Attar and Ms Yalda, persons who did not hold a tertiary qualification. If, in truth, the 2018 Regulation required the employment of Local Employees who were qualified translators, the Consulate would have used money provided in the budget to engage Local Employees who were qualified translators or to engage external qualified translators, or to the extent the budget was not sufficient, the Consulate would have sought to increase the amount that had been budgeted for the engagement of qualified translators.
Relevant to the third difficulty is the following evidence Mr Witwit gave:[18]
HIS HONOUR: All right. So can I just then ask you to go to paragraph 38 of your affidavit – sorry – paragraph 37. You say there that you were informed by the Consul-General that the budget for the 2018 year had already been set and there was sufficient budgets for Ms Yalda’s salary to the end of the year, and that’s what you understood to be the explanation for her contract being renewed ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ after there came into effect ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ a requirement that there be a qualified translator?‑‑‑Yes.
Well, couldn’t that budget have been used to, in effect – you may not want to – well, can’t answer that. That’s appropriate. Wasn’t that budget available to engage some other qualified interpreter or not?‑‑‑Sorry, your Honour. I didn’t understand your question.
Well, you say there was a budget for Ms Yalda’s employment in place, and that’s the explanation you give in your affidavit for saying her contract was renewed even though she was not qualified. Do you understand?‑‑‑Yes.
What I’m saying is wasn’t that budget available to actually engage a qualified interpreter or not?‑‑‑No. Because the – the – the position was already being occupied as – as a number of staff by Ms Yalda and Mr Al-Attar.
All right?‑‑‑So we – we couldn’t hire or afford to appoint a new translator that we don’t have a spot for him.
All right. . . . .
[18] 03.09.2020 T301.40-T302.15
The effect of Mr Witwit’s evidence is that the position of “translator” each of Mr Al-Attar and Ms Yalda held was one that had been provided for in the budget and, for that reason, the position could only be filled by Mr Al-Attar and Ms Yalda, persons who did not hold a tertiary qualification. The difficulty with this evidence is that at the time Mr Al-Attar was given a draft of the employment contract he signed on 1 May 2017, he was engaged to be an employee only up to 30 April 2018. Mr Al-Attar was not engaged to remain an employee until 31 December 2018. Mr Al-Attar was engaged to remain in that position because on 27 June 2018 Ms Alesi signed Mr Al-Attar’s contract of employment on behalf of the Consulate. In other words, the Consulate was not obliged to offer Mr Al-Attar employment; but it was at liberty to engage as a translator a person who held tertiary qualifications.
There is a further difficulty. As will appear later, it was Mr Witwit who told Mr Al-Attar that his contract of employment would not be renewed; and Mr Witwit told Mr Al-Attar of this fact at a meeting on 27 November 2018 when Mr Witwit handed to Mr Al-Attar a letter titled “Notice of non-renewal of employment contract”. In evidence given in cross-examination Mr Witwit said he told Mr Al-Attar not to return to the office after 27 November 2018. If, as Mr Witwit says, the Consulate decided to renew Mr Al-Attar’s contract of employment on 27 June 2018, even though he was not a qualified translator, because the budget had provided for his continuing to be employed until 31 December 2018, Mr Witwit would not have told Mr Al-Attar on 27 November 2018 not to return to the office after 27 November 2018; the Consulate would have instead continued to require him to perform his duties under his contract of employment until 31 December 2018.
I am not satisfied that at the time she signed Mr Al-Attar’s contract of employment Ms Alesi believed the 2018 Regulation required the Consulate to employ as translators only persons who held tertiary qualifications, or that Ms Alesi signed Mr Al-Attar’s contract of employment holding such belief because the budget provided for the payment of Mr Al-Attar’s salary until 31 December 2018. Nor am I satisfied that at the time Ms Alesi signed Mr Al-Attar’s contract of employment Mr Witwit believed, or had any discussion with Ms Alesi which could have led him to believe, that Ms Alesi held any such beliefs. Further, given Mr Witwit was “not involved in the authorising of Mr Al-Attar’s contract”, I am not satisfied Mr Witwit directed his mind to whether the 2018 Regulation applied to Mr Al-Attar or whether, given that regulation, it was open or otherwise appropriate for the Consulate to employ Mr Al-Attar after 30 April 2018 because he held no tertiary qualifications. I am prepared to find, and I do find, that Mr Al-Attar’s contract had been renewed for eight months rather that for one year because there was a change in the Consulate or Ministry’s budgeting practices. I also find that Mr Al-Attar’s contract was renewed in accordance with the usual practice by which the Consulate renewed the contracts of employment of Local Employees without asking Mr Al-Attar to attend any meeting before the Consulate renewed his contract, and without Mr Al-Attar being informed of any direction from the Ministry or any other policy that related to his employment.
July 2018 – Mr Witwit says he decided not to renew Mr Al-Attar’s contract
According to Mr Witwit, in July 2018, after being appointed Acting Consul General, he decided that Mr Al-Attar’s contract would not be renewed when the contract expired at the end of the year. Mr Witwit further says as follows:[19]
This was because Mr Al-Attar did not have tertiary qualifications as a translator. I also considered that I could not justify Mr Al-Attar’s role as a non-qualified translator because of the austerity policy of the Ministry to reduce expenses. I decided that the Consulate could not continue to engage and pay external translators to translate official documents, in addition to paying Mr Al-Attar’s monthly salary. As a result, Mr Al-Attar’s contract was not to be renewed.
[19] Affidavit A M B Witwit 12.06.2020, [36]
This part of Mr Witwit’s evidence assumes that it is he alone who had decided on behalf of the Consulate that Mr Al-Attar’s contract of employment was not to be renewed; and the Consulate’s case itself is predicated on Mr Witwit’s alone deciding on behalf of the Consulate not to renew Mr Al-Attar’s employment contract.[20] These assumptions, however, are not supported by the documents on which the Consulate particularly relies, namely the 10 August 2018 memorandum and the 1 November 2018 memorandum, assuming they are what the Consulate claims them to be. As will become apparent shortly, the 10 August 2018 memorandum purports to be a recommendation from Mr Witwit to the Ministry that the employment contracts of Mr Al-Attar and Ms Yalda not be renewed; and the 1 November 2018 memorandum purports to record the authorisation by a person or persons within the Ministry that the Consulate not renew Mr Al-Attar’s contract of employment. [21] For this reason alone, I do not accept Mr Witwit alone decided Mr Al-Attar’s employment contract was not to be renewed. Assuming the 10 August 2018 memorandum and the 1 November 2018 memorandum are what the Consulate claim them to be, Mr Witwit recommended to the Ministry that Mr Al-Attar’s contract of employment not be renewed, and then he put into effect an instruction the Ministry issued to the Consulate that Mr Al-Attar’s contract not be renewed. In any event, whether Mr Witwit alone decided not to renew Mr Al-Attar’s contract of employment or he instead decided to put into effect an instruction issued by a person or persons within the Ministry, there is the question whether I should accept Mr Witwit’s evidence that he had decided in July 2018 that Mr Al-Attar’s contract would not to be renewed.
[20] “Mr Witwit made the decision not to renew Mr Al-Attar’s contract of employment” – Respondent’s Outline of Submission for hearing on 7 September 2020, [43]
[21] In evidence given under cross-examination by Mr Al-Attar, Mr Witwit said that it was his decision not to renew the employment contracts of Mr Al-Attar and Ms Yalda, but he needed to obtain the authorisation of the Ministry because there were financial consequences to not renewing Mr Al-Attar’s and Ms Yalda’s contracts of employment (04.09.2020 T367.35). Even if I accept that evidence, it would appear that Mr Witwit would have still required the authority of the Ministry before the Consulate could inform Mr Al-Attar and Ms Yalda that their contracts would not be renewed which, in turn, means it would have been for the Ministry, not the Consulate, to decide whether to renew Mr Al-Attar’s and Ms Yalda’s contracts of employment. In any event, I do not accept Mr Witwit’s evidence. It is not supported by the terms of the 10 August 2018 memorandum or the 1 November 2018 memorandum; and the memoranda do not identify any amount for which any authority to spend is sought.
I begin with Ms Yalda’s cross-examination of Mr Witwit. Ms Yalda asked Mr Witwit whether the Consulate had engaged any external translators during Ms Yalda’s employment with the Consulate. At the hearing on 2 September 2020 Ms Yalda asked Mr Witwit whether he had “evidence that shows that you paid other office or other person qualified to do some translation work from 2016 until… my employment has ended”. After Mr Witwit said it was “not a matter of yes or no”, I intervened and said that the question Ms Yalda was asking was whether, to Mr Witwit’s knowledge, the Consulate “engaged external translators and paid them fees for translation”. Mr Witwit said he had “some invoices”, but the invoices “to the end of 2018 are gone . . . because the directives and regulations from the ministry was precise on requiring the documents to be translated by accredited translator . . . [a]n official translation, not an informal translation”.[22] I again expressed the question I understood Ms Yalda intended to ask of Mr Witwit, namely, whether the Consulate had “engaged external translators to translate documents up to the time Ms Yalda was in employment”. Mr Witwit answered: “I don’t recall”.[23] The following exchange then occurred:[24]
HIS HONOUR: Well, I think Ms Yalda is calling for you to produce invoices which evidence your consulate engaging external interpreters to translate. So that’s – your lawyer will understand that. Because I think in one of your affidavits you say that cost was an aspect to it and the question here is – what’s going to be put to you is, in fact, you weren’t paying any external people to do the work. That’s what’s going to be put to you. So your lawyers will have on notice that there’s a call made that evidence the payment to external interpreters and they can look at it overnight and produce the documents tomorrow. So your answer is you don’t recall whether you’ve – up to the time that Ms Yalda was in employment you don’t recall whether the consulate engaged external interpreters appropriately qualified to undertake translation of documents in Arabic?‑‑‑Yes, your Honour, but, as I mentioned, there – there was a new requirement from the ministry ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ that within the correspondence if anything to be sent to them it need to be translated from a qualified translator.
Yes. And you got that direction in March of 2018?‑‑‑Within – within March and the – and later on, yes.
Yes. And, as I understand it, Ms Yalda and Mr Al-Attar were still translating until they ‑ ‑ ‑?‑‑‑They were working at that time but ‑ ‑ ‑
Yes. And . . . after you received the direction did you comply with the direction and engage external people to do the interpreting?‑‑‑Yes, your Honour.
So there’s a call on the documents to evidence that. So that will be over to you, Mr Fernon, by tomorrow.
[22] 02.09.2020 T196.10-20
[23] 02.09.2020 T196.10-T196.40
[24] 02.09.2020 T196.45-T197.5
In response to a call Ms Yalda made, the lawyers for the Consulate forwarded two documents to Ms Yalda and to my associate’s email address; and Ms Yalda cross-examined Mr Witwit about these documents at the hearing on 3 September 2020:[25]
[25] 03.09.2020 T265.25-T266.5. Although a copy of the invoices was handed up, the documents were not marked or admitted into evidence.
MS YALDA: . . . . Now, based on that, yesterday, I wanted to know or I asked for any evidence that shows that while I was in the consulate in that seven years and then we dropped it back to two years as – for two years, the last two years before I finish, to show me any evidence of receipts or cheques or anything paid from the consulate to officers or people that’s actually official translators. And I was – I was emailed today two – with the copy of exhibit question, there was two more attachments. They were receipts, tax invoices, which says zero balance; correct? Do you recall your lawyer sending this to me, Mr Ali Witwit?‑‑‑Yes. Yes.
So, Mr Ali Witwit, there was two of them only; correct?‑‑‑Yes.
Okay. One was dated 31 July 2019. Do you have a copy of this, your Honour?
HIS HONOUR: I do.
MS YALDA: Okay.
HIS HONOUR: Thank you.
MS YALDA: The other one was dated 5 April 2020?‑‑‑I think so, yes.
Okay. So both these dates were after I left; correct?‑‑‑Yes.
So that did not actually answer my question and this was not an evidence to what I’ve asked for, your Honour. I’ve asked if there was any receipts to show that I was a burden on the consulate’s budget while I was working in the consulate ‑ ‑ ‑
HIS HONOUR:   I think the ‑ ‑ ‑
MS YALDA:   ‑ ‑ ‑ for not seven years. I could drop it down to two years at least, before I left.
HIS HONOUR:   Can I just – I think what you want to ask is there are no – sorry.
You have produced no documents evidencing the engagement of an external translator during the period of – the last two years of Ms Yalda’s employment; is that right?‑‑‑Yes.

Mr Al-Attar also cross-examined Mr Witwit about whether the Consulate had engaged external translators:[26]
[26] 04.09.2020 T360.5-35
MR AL-ATTAR: Okay. Same point, but it’s the second page, which is 112, and I quote:
I decided that the consulate did not continue to engage the external translators to translate official document in addition to paying Mr Al-Attar a monthly salary.
Do you have one invoice that could or can prove you have paid actually an extra service during my employment, Mr Witwit? I just need one?‑‑‑I think this question has been answered with Ms Yalda.
Regardless, I’m talking about my case.
HIS HONOUR:   But what’s your answer to this question?‑‑‑
MR AL-ATTAR:   My case, your Honour?‑‑‑The same ‑ ‑ ‑
Give me one ‑ ‑ ‑?‑‑‑The same answer that I have provided to Ms Yalda.
Same answer. You don’t have this?‑‑‑Yes.
Okay. Perfect.
HIS HONOUR:   Just for my benefit, the question is do you have a single invoice to prove that you had engaged and paid external translators to translate official documents during the time that Mr Al-Attar was employed? What’s your answer?‑‑‑No.
No? All right.
I do not accept Mr Witwit’s evidence that he decided not to renew Mr Al-Attar’s contract because the “Consulate could not continue to engage and pay external translators to translate official documents, in addition to paying Mr Al-Attar’s monthly salary”. I also do not accept that any person with authority to decide not to renew Mr Al-Attar’s contract had formed the view in around July 2018 that the Consulate would not renew Mr Al-Attar’s contract of employment because the Consulate could not continue to engage and pay external translators to translate official documents, in addition to paying Mr Al-Attar’s monthly salary. If any such view had been formed, it is reasonable to expect the Consulate would have been in a position to produce, and would have produced, evidence that it had engaged and paid for external translators at the time the Consulate employed Mr Al-Attar and that, as Mr Witwit claimed, that constituted a financial burden to the Consulate.
The Consulate’s purported 10 August 2018 memorandum to the Ministry
According to Mr Witwit, after he decided not to renew the employment contracts of Mr Al-Attar and Ms Yalda he considered he would need to give the Ministry “as much notice as possible for the approval of termination payments to Mr Al-Attar”; and on 10 August 2018 Mr Witwit “sought approval for this payment from the Ministry in a memorandum entitled “Local Employee in the Grade of Translator””.[27] That is a reference to the 10 August 2018 memorandum, a translation of which is as follows:[28]
[27] Affidavit A M B Witwit 12.06.2020, [37]
[28] Exhibit AW-1, page 20
Republic of Iraq
Consulate General of the Republic of Iraq
Sydney
Number: Thal/1/3/2240  Date: 10.08.2018
Ministry of Foreign Affairs/the Administrative Department
Subject: Local Employee in the “Grade of Translator”
Reference: Circular number 289 of 31.03.2018
In view of the fact that the Mission is bearing financial burdens arising out of using the services of licensed and accredited Translation Offices for the official and accredited translation of the correspondence required to run the work of the Mission; and, as the Mission does not have local employees holding a certificate related to translation or accredited translator’s licence; and, in implementation of paragraph (9) of your above Circular,
The mission recommends the non-renewal of the contracts of the following local employees whose contracts expire on 31.12.2018 and serving them notifications to that effect within ample time and granting them the termination of service allowance and any other entitlements due to them in conformity with the Australian employment law to avoid falling in any legal violation of that law.
The names:
1.   Mariam Ashor Yalda/Translator
2.   Ali Abdulhussein Jawad Al Attar/Translator
Kindly requested to peruse and instruct
- Signed on 10.08.2018 by Ali Mohammed Witwit, the Consul General
- Duly stamped by the seal of the Consulate General of the Republic of Iraq/Sydney
Mr Witwit gave the following evidence of the circumstances in which this document came into existence:[29]
The budget did not make provision for the termination of employment payments that I considered it would be necessary to pay to Mr Al-Attar when his contract was not renewed. I considered that I would need to give the Ministry as much notice as possible for the approval of termination payments to Mr Al-Attar. On 10 August 2018, I sought approval for this payment from the Ministry in a memorandum entitled “Local Employee in the Grade of Translator”, in which I informed the Ministry of the non-renewal of the contracts of two local employees in the position of translators, one being Mr Al-Attar. . . . In addition, my purpose in the memorandum was to advise that Mr Al-Attar, was to be given notice that his contract [of] employment would not be renewed, given the financial burdens the Ministry was facing at the time and the fact that Mr Al-Attar did not hold an accredited translator’s licence. I also sent the memorandum of 10 August 2018 to the Ministry as a matter of courtesy to keep the Ministry informed of my decision not to renew the translators’ contracts in accordance with the 2018 Regulations.
[29] Affidavit A M B Witwit 12.06.2020, [37]
For reasons I give in the Yalda Judgment,[30] I am not satisfied the 10 August 2018 memorandum is a document that was created at or around the date it bears, or that it is a document that was created in connection with the Consulate’s decision not to renew Mr Al-Attar’s contract of employment, or that it reflects any transaction or event that occurred before the Consulate decided not to renew Mr Al-Attar’s employment contract; and I do not accept that it records the reasons on which the Consulate relied in deciding not to renew Mr Al-Attar’s contract of employment.
[30] Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499, at [59]-[83]
I should also refer to the following evidence Mr Witwit has given in his affidavit:[31]
I had decided by 10 August 2018 (and to the best of my recollection in July 2018) that Mr Al-Attar’s contract would not be renewed.
[31] Affidavit A M B Witwit 12.06.2020, [43.c.]
I do not accept this evidence. First, I have not accepted Mr Witwit’s evidence that he believed or had formed the view that the Consulate would not renew Mr Al-Attar’s contract of employment because the Consulate could not continue to engage and pay external translators to translate official documents, in addition to paying Mr Al-Attar’s monthly salary. Second, I have found I am not satisfied the 10 August 2018 memorandum is a document that was created at or around the date it bears, or that it is a document that was created in connection with the Consulate’s decision not to renew Mr Al-Attar’s contract of employment; or that it records any event that occurred before the Consulate decided not to renew Mr Al-Attar’s contract of employment; or that it records the reasons on which the Consulate relied in deciding not to renew Mr Al-Attar’s contract of employment.
31 August 2018 – Mr Al-Attar lodges bullying complaint with FWC
On 31 August 2018 Mr Al-Attar lodged with the FWC an “Application for an order to stop bullying”.[32] In that document Mr Al-Attar alleged that “[f]or two years, I’ve been under continuous bulling by “[Mr Al-Mashhadani]””. In section 2.2 of that application Mr Al-Attar referred to an incident he alleged occurred on 28 August 2018 which Mr Al-Attar alleged consisted of Mr Al-Mashhadani shouting at him, throwing a client’s passport at him, and holding his right hand and pushing him outside the room. Mr Al-Attar alleged this occurred in response to Mr Al-Attar interrupting a conversation Mr Al-Mashhadani was having with another employee. Mr Al-Attar alleged he interrupted the conversation in an attempt to carry out an urgent instruction Mr Witwit had assigned to Mr Al-Attar. Mr Al-Attar further alleged the following occurred after the incident (errors in original):[33]
I couldn’t finish what Mr. Ali Witwit has assigned me to do. I took the passport of the client who needs a visa, went back to Mr. Ali Witwit’s office which is few meters away to the left of where the incident happened. I told him what happened and put the passport on his desk and left because my entire body was shaking, I was unable to breath and I was so scared that something wrong might happen to me so I went to my colleague, her name is Mariam. I used to listen to her when the exact same person (Mahmoud Saeed Hamed Al-Mashhadani) was harassing and bullying her more than once.
[32] Affidavit of A Al-Attar 30.01.2020, [10]; exhibit D (CB53-62)
[33] Affidavit of A Al-Attar 30.01.2020, [10]; exhibit D (CB58)
Mr Al-Attar also stated that he had made a complaint to Mr Witwit about the bullying. Mr Al-Attar stated (errors in original):
I did report ALL the incidents to him. He clearly told me once that I’m a local staff and Mahmoud Saeed Hamed Al- Mashhadani has been sent from Iraq to the Sydney mission and he can’t do anything about it. The best he can is talking to him. . . .
On the 29^th of August 2018, I have submitted a full written report to Mr. Ali Witwit asking him to take action by stepping in and stop the bullying. The best he managed to do is moving my desk to another place which is not acceptable nor good enough. He failed to fix the root of the issue.
An English translation of the letter Mr Al-Attar says he gave to Mr Witwit on 29 August 2018 formed part of the bullying application Mr Al-Attar lodged with the FWC, and is as follows (errors in original):[34]
On 15 September 2017, I was threatened to be killed in front of my colleagues, by Mr Mahmoud Saeed Hamed Al-Mashhadani who works at the Iraqi Consulate General in Sydney as a Senior Translator. Since that time until today the 28^th August 2018, I have been subjected to all sorts of abuse, verbal and physical as well. I have been verbally abused by insults and offensive words that should not be said by a Diplomatic Mission working in a country (Australia) that respects Human Rights and considers them a high priority. I have been humiliated, denigrated and put down, more than once and in front of my colleagues. This has caused me so much physical and psychological harm and I was hurt so deeply that I had to go to hospital many times in 2017 and 2018 and I am still suffering from the abuse until now.
I have not taken any action hoping that you would take the necessary measures to stop the series of attacks and bullying I was subject to over two years, but nothing has changed. It is worth mentioning that I work in the Passports and Entry visas section and my daily work does not overlap nor does it interfere in any way with the work of Mr Mahmoud. However, despite of this, I have not been spared his verbal and physical abuse. I have tried very hard to behave with wisdom and patience. I tried to control my anger, so I have chosen to ignore him in the hope that he would change his behaviour with me. However, the situation has been getting even worse. I feel very anxious and worried. I fear for my safety and the safety of my family as I am the breadwinner and the father of two small children.
Dear Mr Witwit, I am informing you about this situation putting my formal complaint hoping that you would forward it to the Honourable General Inspector and His Excellency the Ambassador in order for them to take the necessary procedures.
[34] Exhibit A, page 12
Mr Witwit does not say anything in his affidavit about the incident Mr Al-Attar says occurred on 28 August 2018. Mr Al-Attar, however, cross-examined Mr Witwit about his memory of such incident. Mr Witwit initially said he recalled a confrontation, but he did not recall the exact events.[35] Later into the cross-examination, however, Mr Witwit accepted Mr Al-Attar provided him a letter written in Arabic on 29 August 2018. Mr Witwit gave the following evidence:[36]
MR AL-ATTAR: Okay?‑‑‑On 29 August 2018 you made that claim, and after one day, something like that, you took leave.
True?‑‑‑And there was a period of time that you are on leave and on sick leave, till the mid of September.
That’s right?‑‑‑And during that time I recall, and you recall and it’s documented, I think, the correspondence that we have sent you an inquiry regarding your claim.
That’s perfectly right?‑‑‑So I took it seriously and I put it in writing and sent it to you to try to deal with whatever you mentioned in your claim.
Okay?‑‑‑But, Mr Al-Attar – your Honour, if I might, did you answer us back till now about that ‑ ‑ ‑
Yes, I’m coming to this?‑‑‑ ‑ ‑ ‑ inquiry?
That would be ‑ ‑ ‑?‑‑‑That didn’t happen.
[35] 04.09.2020 T335.45
[36] 04.09.2020 T337.20
Mr Witwit said he “tried to open an investigation” by sending an email to Mr Al-Attar.[37] That appears to be a reference to an email to which Mr Witwit referred in an email (in Arabic) he sent to Mr Al-Attar on 2 October 2018.[38] Mr Witwit sent his email in response to an email Mr Al-Attar sent on 28 September 2018 in which he made an enquiry about his salary not having been deposited into his account.[39] Under cross-examination Mr Al-Attar accepted that in his email of 2 October 2018 Mr Witwit indicated Mr Al-Attar should send his enquiries to the financial department; that he should communicate in Arabic; that Mr Al-Attar had not responded to an email that had been sent to Mr Al-Attar; and that, as Mr Al-Attar was working in the consulate, he should “speak up rather than . . . communicate by email”.[40] Mr Witwit deposes that “the Consulate made its own internal enquiries into the complaint”, but “Mr Al-Attar did not cooperate with the Consulate’s investigation”.[41] Mr Witwit, however, does not say what enquiries or investigation the Consulate undertook in relation to the bullying complaint Mr Al-Attar made in his letter dated 29 August 2018.
[37] 04.09.2020 T342.5
[38] Affidavit of A Al-Attar 20.02.2020, [3]; exhibit C (CB97)
[39] Affidavit of A Al-Attar 20.02.2020, [3]; exhibit C (CB98)
[40] 02.09.2020 T123.30-T124.10
[41] Affidavit A M B Witwit 12.06.2020, [45.d]
13 September 2018 – Mr Al-Attar makes enquiries of DFAT
On 13 September 2018 Mr Al-Attar sent an email to the “Protocol Branch” of the Department of Foreign Affairs and Trade (DFAT). Mr Al-Attar began by saying he had a question arising from his reading material associated with the link he identified in the email.[42] The link ends with the words “application-of-local-labour-laws”. Mr Al-Attar said the material did not answer the question he had, which he stated as: “If LES [Locally Employed Staff] who work at a consulate in Sydney have problems, what should they do? Whom they should [sic] contact?” Mr Al-Attar then identified what appear to be the links to the websites of the FWC, Safe Work Australia, and SafeWork NSW; and he asked whether to contact these agencies or simply DFAT. Mr Al-Attar continued:
To be extra specific, if there is a breach in what has been mentioned here:
. . . . application-of-local-labour-laws.aspx
What LES should do?
And by “a breach” I mean the contract between LES and the foreign consulate doesn’t give the LES any rights. The contract was written against the Australian Law. And just because it was written against the law, LES are under continuous bullying, harassment, discrimination, unfair dismissal, humiliation, etc.
Kindly advise. Thank you so much in advance!
[42] Affidavit of A Al-Attar 30.01.2020; [9]; exhibit C (CB47-48)
A protocol officer from DFAT responded by email sent on 14 September 2018, stating that if Mr Al-Attar had any issues with the conditions of his employment he should contact “Fairwork Australia”.[43]
[43] Affidavit of A Al-Attar 30.01.2020; [9]; exhibit C (CB46)
13 September 2018 – Ms Yalda lodges bullying complaint with FWC
As I have noted in the Yalda Judgment,[44] on 13 September 2018 Ms Yalda lodged a bullying application with the FWC.
[44] Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499, at [86]
24 September 2018 – Mr Al-Attar corresponds with ATO
On 24 September 2018 Mr Al-Attar sent an email to the Australian Taxation Office (ATO) in which he stated the Consulate had failed to comply with its obligations to the ATO.[45] Mr Al-Attar said the Consulate is not paying any tax, and it does not provide payslips to the Local Employees. Mr Al-Attar also said the Consulate was not making any superannuation payments in relation to the Local Employees, and the Local Employees were being paid in United States currency. Mr Al-Attar asked the ATO to advise “what LES must do in this case”. An officer from the ATO responded by email sent on 26 September 2018 stating that “[w]e are making enquiries with the Consulate about the issues you have raised”.[46] Mr Al-Attar responded by stating the Consulate would terminate his employment if it were to find out it is Mr Al-Attar “who is reporting these issues”. Mr Al-Attar said he can “provide [the ATO] with any details [the ATO] want but I don’t want to lose my job”.[47]
[45] Affidavit of A Al-Attar 30.01.2020; [9]; exhibit C (CB50-52)
[46] Affidavit of A Al-Attar 30.01.2020; [9]; exhibit C (CB49)
[47] Affidavit of A Al-Attar 30.01.2020; [9]; exhibit C (CB51-52)
28 September 2018 – Mr Al-Attar follows up payment of wages
On 28 September 2018 Mr Al-Attar sent an email to Mr Witwit in which Ms Wroblewski from the Fair Work Ombudsman (FWO) was copied. Mr Al-Attar said:[48]
I have been informed that all my colleagues at the general consulate of the republic of Iraq have received their salary for September 2018 today (Friday), the 28th of September 2018. I have logged in to my CommBank App and it seems that I have not yet received my salary.
[48] Affidavit of A Al-Attar 30.01.2020; [11]; exhibit E (CB64)
Mr Al-Attar then set out his bank account details. There is no evidence Mr Witwit responded to Mr Al-Attar’s email. Mr Witwit did give evidence, however, that he suspended payment of Mr Al-Attar’s salary:[49]
As the Acting Consul-General, I made the decision to suspend Mr Al-Attar’s salary in September 2018 because he failed to attend for work on five (5) occasions without presenting a valid medical certificate explaining his absence, as required by his contract of employment. Mr Al-Attar failed to present for work or to present a valid medical certificate before I was made aware that he had lodged any complaint with the Fair Work Commission.
[49] Affidavit A M B Witwit 12.06.2020, [46.b.]
3 October 2018 - Ms Yalda approaches FWO
On 3 October 2018 Ms Yalda lodged an enquiry with the FWO.[50]
[50] Annexure to affidavit of M Yalda 17.02.2020, CB90
4 October 2018 – Mr Al-Attar sends email to Mr Witwit about enquiry made to FWO about sick leave
On 4 October 2018 Mr Al-Attar sent to Mr Witwit an email attaching a letter, a medical certificate, and a sick leave form.[51] In his email Mr Al-Attar said he has been “CC’ing The Fair Work Ombudsman (FWO) Customer Solutions Officer I spoke to, Mary Wroblewski”, and requested that on “replying, kindly click reply all”. The letter Mr Al-Attar attached to his email is addressed to Mr Witwit, and is as follows (emphasis and errors in original):
[51] Affidavit of A Al-Attar 30.01.2020; exhibit E (CB65-67)
I am writing to you because I believe that I have not yet received my salary for the month of September 2018 which is 2311USD.
I have contacted the Customer Solutions Team of the Fair Work Ombudsman and based on my understanding of my employment they provided me with the following information:
1.The National Employment Standards (NES) are 10 minimum employment entitlements that have to be provided to all employees. For more information, please check . . . .
2.A medical certificate (issued by a GP) is an acceptable form of evidence. More information can be found here . . . .
3.As per the copy of my contract which has been sent to Fair Work Ombudsman, no authentication is required to authentic the medical certificate . . .
I would very much appreciate it if you could have a look at the information provided above, the attached medical certificate, the attached sick leave form and see if you agree. I would also appreciate an opportunity to have a meeting with you so that we can both work out how to resolve this matter.
The Fair Work Ombudsman (FWO) Customer Solutions Officer I spoke to was Mary Wroblewski who can be contacted on . . . . . Mary is happy to go through the attached information with you.
I look forward to hear from you soon so that we can resolve the issues raised.

In his affidavit Mr Witwit refers to receiving Mr Al-Attar’s letter and an attached medical certificate. Mr Witwit deposes that, after he received the letter and medical certificate, he informed the Consulate’s accountant that Mr Al-Attar’s salary for September 2018 “could now be paid”.[52] Mr Al-Attar’s salary for September 2018 was deposited into Mr Al-Attar’s account on 5 October 2018.[53] Mr Witwit repeats in this context that “the only reasons for the non-renewal of Mr Al-Attar’s contract were the financial burdens the Ministry was facing at the time and the fact that Mr Al-Attar did not hold an accredited translator’s licence”.[54] Mr Witwit also gave evidence that apart from the 10 August 2018 memorandum he “had not had any further communications with the Ministry regarding the employment of Ms Yalda and/or Mr Al-Attar”.[55] I do not accept Mr Witwit’s evidence.
(a)As I have already noted, the documents on which the Consulate relies, assuming they are what the Consulate claims them to be, do not support a finding that it was Mr Witwit alone who made the decision not to renew Mr Al-Attar’s contract of employment. Assuming the 10 August 2018 memorandum and the 1 November 2018 memorandum are what the Consulate claim them to be, Mr Witwit recommended to the Ministry that Mr Al-Attar’s contract of employment not be renewed, and then he put into effect an instruction the Ministry issued to the Consulate that Mr Al-Attar’s contract not be renewed.
(b)I have not accepted Mr Witwit’s evidence that he believed or had formed the view that the Consulate would not renew Mr Al-Attar’s contract of employment because the Consulate could not continue to engage and pay external translators to translate official documents, in addition to paying Mr Al-Attar’s monthly salary.
(c)There is no evidence the Consulate engaged qualified translators at the time Mr Al-Attar and Ms Yalda were employed, and, for that reason, the Ministry was burdened with the cost of having to pay qualified translators while employing Mr Al-Attar and Ms Yalda as unqualified translators.
(d)I have found I am not satisfied the 10 August 2018 memorandum is a document that was created at or around the date it bears, or that it is a document that was created in connection with the Consulate’s decision not to renew Mr Al-Attar’s contract of employment; or that it records any event that occurred before the Consulate decided not to renew Mr Al-Attar’s contract of employment; or that it records the reasons on which the Consulate relied in deciding not to renew Mr Al-Attar’s contract of employment.
(e)It is unlikely that Mr Witwit, as Head of Mission or, at least, as a senior Consulate official, would not have reported to a superior in the Ministry or elsewhere the fact that an Australian government authority, the FWO, had approached the Consulate because of matters an employee of the Consulate had reported to the FWO.
[52] Affidavit A M B Witwit 12.06.2020, [46.b.]
[53] 02.09.2020 T126.5
[54] Affidavit A M B Witwit 12.06.2020, [46.c]
[55] Affidavit A M B Witwit 12.06.2020, [39]
11 October 2018 – Mr Al-Attar attends DFAT office in Sydney
According to an email Mr Al-Attar sent to Ms Wroblewski of the FWO on 1 November 2018, on 11 October 2018 Mr Al-Attar “walked in and visited DFAT at” Sydney and “raised with them several concerns”. Mr Al-Attar further said DFAT had given him “permission to CC them whenever I need”.[56]
[56] Affidavit of A Al-Attar 20.02.2020; exhibit B (CB92)
16 October 2018 – FWO sends email to Consulate
On 16 October 2018 the FWO sent an email to the Consulate noting the FWO had “received an enquiry from Ali Jawad”, namely, Mr Al-Attar, who advised the FWO that he is an employee of the Consulate in Sydney, and that “the evidence required by the Consulate for sick/carer’s leave is in excess” of that required by the FW Act.[57] After referring the Consulate to links where information may be obtained, the email concluded as follows:
Can you please contact me by close of business on Thursday 18^th October so that I can assist you and Ali in resolving this matter as promptly as possible or alternatively you can contact Ali directly.
[57] Affidavit A M B Witwit 12.06.2020, exhibit AW-1, pages 147-149
In his affidavit Mr Witwit refers to the FWO’s email of 16 October 2018. The only evidence Mr Witwit gives in relation to it, however, is that the matter covered by the email “formed no part of” his decision not to renew Mr Al-Attar’s contract.[58] Mr Witwit also gave evidence that apart from the10 August 2018 memorandum he “had not had any further communications with the Ministry regarding the employment of Ms Yalda and/or Mr Al-Attar”.[59] I do not accept Mr Witwit’s evidence for the reasons I have given in paragraph 49 of these reasons.
[58] Affidavit A M B Witwit 12.06.2020, [44.c]
[59] Affidavit A M B Witwit 12.06.2020, [39]
1 November 2018 – Mr Al-Attar sends further email to FWO
On 1 November 2018 Mr Al-Attar sent another email to the FWO.[60] Mr Al-Attar said he did not feel safe. Mr Al-Attar referred to his having attended DFAT’s Sydney office, noting DFAT advised him to “send an email to my employer”. Mr Al-Attar later said:
Please note:
·I’ve been questioned why I’m going to restroom many times a day?
·I’ve been asked to never leave my desk from 9am to 3pm.
·Someone is spying on my [sic] by entering my office/room while I’m away.
·The employer is abusing the CCTV Camera and I think he’s listening to each and every word I say inside my room including the phone calls I make to Fair Work, for example.
·I’ve been given a warning which I don’t know why and haven’t received a copy, just because my employer knew I contacted you for stopping my salary and regarding the authentication of sick leaves [sic] which we’ve been dealing with together previously.
[60] Affidavit of A Al-Attar 20.02.2020; exhibit B (CB92-93)
1 November 2018 – Consulate claims it received 1 November 2018 memorandum
Mr Witwit says that on 1 November 2018 the Consulate received the 1 November 2018 memorandum from the Ministry.[61] The English translation of the memorandum is as follows:[62]
[61] Affidavit A M B Witwit 12.06.2020, [38]
[62] Exhibit AW-1, page 22
Ministry of Foreign Affairs
Administrative Department
Number: Thal/3/Sheen2/984 Date: 01.11.2018
Consulate General of Iraq/Sydney
Subject: Complaints of the Local Employees
Reference: Your letter number Thal/2/7/2240 of 10.08.2018
Notifications shall be sent to the local employees Maryam Ashor Yalda, job title “Translator” and Ali Abdulhussein Jawad job title “Translator” according to the Australian employment laws. Their services shall be terminated from the date of the expiry of their contracts on 31.12.2018. They shall receive their termination of service allowance according to the Australian employment laws to avoid any legal accountability in case they lodge complaints according to the Australian Employment Department.
Kindly requested to Peruse and taking what is required thereof and informing us.
With appreciation
- Signed by . . . . , the Assistant Head of the Administrative Department
For the reasons I give in the Yalda Judgment,[63] I am not satisfied the 1 November 2018 memorandum is a document the Ministry sent to the Consulate on 1 November 2018; or that it is a document that responds to the 10 August 2018 memorandum; or that it is a document that was created on or about 1 November 2018. It is possible the 1 November 2018 memorandum is derived from a genuine memorandum from the Ministry to the Consulate whose subject was “Complaints of the Local Employees”, and that such memorandum was sent in response to a memorandum from the Consulate bearing or dealing with the same subject, namely, “Complaints of the Local Employees”. It is not possible, however, and it is in any event not necessary, to make any findings about this.
[63] Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499, at [91]-[102]
8 November 2018 – FWO sends email to Consulate
On 8 November 2018 the FWO sent an email to the Consulate stating the FWO had received an enquiry from “Ms Mariam Yalda” (Ms Yalda) regarding certain policies in place at the Consulate.[64]
[64] Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499, at [105]
15 November 2018 - Consulate notified of Mr Al-Attar and Ms Yalda’s FWC bullying application
On 15 November 2018 the Consulate was notified of Mr Al-Attar’s and Ms Yalda’s bullying applications. Mr Witwit refers to the Consulate receiving notice on 15 November 2018 that Mr Al-Attar had lodged a bullying complaint with the FWC (FWC application). The only evidence Mr Witwit gives about his receiving notice of the FWC application is to repeat that he had decided by 10 August 2018 not to renew Mr Al-Attar’s employment contract.[65] If by this Mr Witwit intends to convey persons within the Consulate or Ministry did not discuss the FWC application, I would not accept it. It is likely that the FWC application would have been circulated and discussed. But between whom? What discussions occurred? Did any of those discussions refer to Mr Al-Attar, being the person who made the FWC application? Who participated in those discussions? Was any decision made? What decision or decisions were made, when were they made, and by whom?
[65] Affidavit A M B Witwit 12.06.2020, [45.b.]
I am not prepared to find the Consulate did nothing in response to the notification of the FWC application. These circumstances also provide an additional reason for my not being prepared to accept the evidence Mr Witwit gave in his affidavit when referring to the subject of the 1 November 2018 memorandum (“Complaints of the Local Employees”) that he did not have “any further communications with the Ministry regarding the employment of Ms Yalda and/or Mr Al-Attar”.[66]
[66] Affidavit A M B Witwit 12.06.2020, [39]
27 November 2018 – Mr Al-Attar is notified contract will not be renewed
According to Mr Witwit, on 27 November 2018 he called Mr Al-Attar into a meeting room at the Consulate together with the Consulate’s administration manager. According to Mr Witwit,[67] he told Mr Al-Attar words to the effect that he was letting him know “that your contract is not going to be renewed next year”, and that “[y]our last day will be 31 December 2018”. Mr Al-Attar is said to have responded by asking whether he would be given “any written notice”, in response to which Mr Witwit said “yes”, and handed him a letter dated 27 November 2018. That letter relevantly was as follows:[68]
We regret to inform you of a decision not to renew your employment contract with the Consulate General of the Republic of Iraq in Sydney, on the expiration date 31/12/2018; therefore, please consider the aforementioned date as your last day of work. This months’ notice of non-renewal for an employee is done in compliance with the minimum notice period required by the Australian Fair work.
You are required to return any of the Consulate’s material, documents or equipment to which you had access during the period [sic] your contract. As with all employees, you are bound by our confidentiality and data protection policies.
You are entitled to be paid your month salary, superannuation and any of shortfall wages in accordance with the Australian fair work law. You are also entitled to Redundancy. Please provide us your TFN, Super fund details and bank details.
We would like to thank you for your contribution and we wish you all the best for the future.
[67] Affidavit A M B Witwit 12.06.2020, [40]
[68] Affidavit A M B Witwit 12.06.2020, [40]; Exhibit AW-1, at page 23
In evidence Mr Witwit gave when being cross-examined by Mr Al-Attar, Mr Witwit said that in addition to giving Mr Al-Attar the letter, he told Mr Al-Attar that he was not to return to the Consulate after 27 November 2018. The evidence is as follows (emphasis added):[69]
[69] 04.09.2020 T380.1-T381.40; 04.09.2020 T382.1-T382.15
When was my last day?‑‑‑What you are referring to, last day?
It’s very simple. When was my last day at the Consulate ‑ ‑ ‑?‑‑‑Now ‑ ‑ ‑
‑ ‑ ‑ when I was physically there for the last time?‑‑‑Physically for the last time. That’s the date of your notice.
Okay?‑‑‑Yeah.
So why you then gave me – you gave me 15 minutes and my colleague to leave on the 27^th of – of November?‑‑‑What you are referring to?
HIS HONOUR:   So you – are you referring to the circumstance in which you received the notice?
MR AL-ATTAR:   When I – when I received this notice, your Honour ‑ ‑ ‑
HIS HONOUR:   Yes.
MR AL-ATTAR:   ‑ ‑ ‑ I have been given 15 minutes to leave. Same ‑ ‑ ‑
HIS HONOUR:   But who ‑ ‑ ‑
MR AL-ATTAR:   ‑ ‑ ‑ happened with my colleague.
HIS HONOUR:   Who gave you the note? The ‑ ‑ ‑
MR AL-ATTAR:   Mr Witwit.
HIS HONOUR:   All right. Well, put to him, “Do you recall, did you give me this letter?” Did you give that letter to Mr ‑ ‑ ‑?‑‑‑Yes.
All right. And what – what do you say Mr Witwit said to you at the time he gave you the letter?
MR AL-ATTAR:   You have 15 minutes to leave.
HIS HONOUR:   Did you say words to that effect to Mr ‑ ‑ ‑?‑‑‑I think so. I don’t recall.
MR AL-ATTAR:   You don’t recall?‑‑‑Yeah.
. . . .
HIS HONOUR:   Yes. So what’s been put to you is that you gave to Mr Al-Attar that letter and you said to him words to the effect of, “You have 15 minutes to leave the premises.” Do you ‑ ‑ ‑?‑‑‑I ‑ ‑ ‑
‑ ‑ ‑ accept that you said that or not?‑‑‑I don’t recall it exactly but he’s saying that this is 27^th of November was last day in the work ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ as he put it. This is my understanding.
He said that ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ he’s putting to you ‑ ‑ ‑?‑‑‑ ..... that was his last day.
But he’s putting to you that at the – that you gave him that letter of renewal and you said to him, “You have to leave the premises in 15 minutes.” Do you accept you said that or not?‑‑‑I don’t recall but ‑ ‑ ‑
MR AL-ATTAR:   That’s fine. But can you ‑ ‑ ‑
HIS HONOUR:   No, no. Just let him.
MR AL-ATTAR:   Sorry.
HIS HONOUR:   What’s your answer? You don’t recall?‑‑‑I don’t recall the exact – if what – it was 15 minute or this is your last day. I don’t recall.
So did you – did you say to him, at least, words to the effect that you did not want him to return to the office at least after that day. Is that right?‑‑‑Yes.
. . . .
HIS HONOUR:   ..... the question you want to ask. You accept that, at the very least, you said to him you did not want Mr Al-Attar to be in the premises after 27^th November. Did he return to work after the 27^th of November to your knowledge?‑‑‑I also – as mentioned in the notice, I tell him, “Your salary will continue” ‑ ‑ ‑
All right?‑‑‑ ‑ ‑ ‑ “to the end of your contract.”
But you did not want him to be in the office ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ and you made that clear?‑‑‑Yes.
And to your knowledge, he didn’t come back into the office?‑‑‑Yes.
Did the same thing happen with Ms Yalda?‑‑‑Yes.
Reasons for not renewing Mr Al-Attar’s contract
The Consulate’s evidence about the reason it decided not to renew Mr Al-Attar’s contract of employment consists entirely of evidence from Mr Witwit. Mr Witwit says:[70]
The reason that I did not renew Mr Al-Attar’s contract was because he did not have the tertiary qualifications required under the 2018 Regulations to act as a translator.
[70] Affidavit A M B Witwit 12.06.2020, [41]
Mr Witwit also says that “the only reasons for the non-renewal of Mr Al-Attar’s contract were the financial burdens the Ministry was facing at the time and the fact that Mr Al-Attar did not hold an accredited translator’s licence”.[71]
[71] Affidavit A M B Witwit 12.06.2020, [46.c.]
This part of Mr Witwit’s evidence assumes, as does the Consulate’s entire case, that Mr Witwit alone was the person who had the authority to make, and who made the decision on behalf of the Consulate not to renew Mr Al-Attar’s and Ms Yalda’s contracts of employment. I have already found that this assumption is not supported by the documents on which the Consulate itself relies. Assuming the 10 August 2018 memorandum and the 1 November 2018 memorandum are what the Consulate claim them to be, Mr Witwit recommended to the Ministry that Mr Al-Attar’s and Ms Yalda’s contracts of employment not be renewed, and then he put into effect an instruction the Ministry issued to the Consulate that Mr Al-Attar’s and Ms Yalda’s contracts of employment not be renewed. There is therefore a lacuna in the evidence that it may reasonably be supposed was in the power of the Consulate to call that would shed light on the reason or reasons for which the Consulate decided not to renew Mr Al-Attar’s contract of employment, namely, evidence from the person or persons within the Ministry who considered the recommendation Mr Witwit made in the 10 August 2018 memorandum and who issued the instruction contained in the 1 November 2018 memorandum.
Even if, however, I accept Mr Witwit alone made the decision on behalf of the Consulate not to renew Mr Al-Attar’s contract of employment, I would not accept his evidence that he made the decision because the Ministry was facing the financial burden of having to engage external translators, and Mr Al-Attar was not a qualified translator. My non-acceptance is based on findings I have already made, and in particular my findings that neither Mr Witwit nor any other person who had authority to employ Local Employees like Mr Al-Attar and Ms Yalda as translators believed that such persons had to be qualified; my finding that the Consulate did not engage, and therefore did not expend money on external translators at the time Mr Al-Attar and Ms Yalda were employed such as to render the employment of Mr Al-Attar and Ms Yalda a financial burden on the Consulate; my finding that after the Consulate decided not to renew the contracts of employment of Mr Al-Attar and Ms Yalda, the Consulate employed as translators persons who were not qualified as translators; my not accepting the 10 August 2018 memorandum and the 1 November 2018 memorandum are what the Consulate claims them to be; and my not accepting as plausible that there were no discussions within the Consulate or between the Consulate and the Ministry in response to the Consulate’s being notified on 8 November 2018 of the FWO email and in response to the Consulate’s being notified on 15 November 2018 of Mr Al-Attar’s and Ms Yalda’s bullying application to the FWC, and the absence of any evidence of any such discussion.
SUMMARY OF FINDINGS
It will be appropriate if at this point I set out the essential findings on the basis of which I will assess Mr Al-Attar’s claim that the Consulate contravened s 340(1) of the FW Act.
(a)Mr Al-Attar commenced his employment with the Consulate on 1 June 2016 as a translator, and was employed under fixed term contracts, the second one of which expired at the end of 30 April 2018.
(b)In about April 2018 the Consulate invited Mr Al-Attar to indicate his willingness to renew his employment for a further eight months until 31 December 2018. On 1 May 2018 Mr Al-Attar signified his willingness by signing a form of contract the Consulate had provided to him. The Consulate accepted Mr Al-Attar’s offer on 27 June 2018 by the Consulate’s Head of Mission signing the form of contract Mr Al-Attar had signed.
(c)The Consulate did not at the time the Consulate re-engaged Mr Al-Attar and Ms Yalda as translators on 27 June 2018 believe the 2018 Regulation prevented the Consulate from engaging as translators persons like Mr Al-Attar and Ms Yalda who were not qualified translators; and the Consulate employed as translators persons who were not qualified translators after 27 November 2018 when the Consulate notified Mr Al-Attar and Ms Yalda it would not renew their contracts.
(d)There is no evidence the Consulate engaged qualified translators at the time Mr Al-Attar and Ms Yalda were employed, and there is no evidence to support a finding that Ms Yalda or Mr Al-Attar were a financial burden on the Consulate because the Consulate was incurring costs in relation to qualified translators it engaged.
(e)Given the findings in (b), (c), and (d), I am not satisfied that in July 2018 Mr Witwit made any decision not to renew Mr Al-Attar’s employment contract.
(f)I am not satisfied the 10 August 2018 memorandum was created at or around the date it bears, or that it was created in connection with the Consulate’s decision not to renew Mr Al-Attar’s contract of employment, or that it reflects any transaction that occurred before the Consulate decided not to renew Mr Al-Attar’s contract of employment; and I do not accept that it records the reasons on which the Consulate relied in deciding not to renew Mr Al-Attar’s contract of employment.
(g)On 29 August 2018 Mr Al-Attar provided to Mr Witwit a letter complaining of abuse and bullying by Mr Al-Mashhadani.
(h)On 31 August 2018 Mr Al-Attar lodged with the FWC an “Application for an order to stop bullying” in which Mr Al-Attar claimed he had been bullied by Mr Al-Mashhadani for two years.
(i)On or about 28 September 2018 Mr Al-Attar contacted the FWO in relation to his September 2018 salary not having been paid, and on 28 September 2018 Mr Al-Attar sent an email to Mr Witwit about his September 2018 salary in which an officer from the FWO was copied.
(j)On 4 October 2018 Mr Al-Attar sent an email to Mr Witwit in which he informed Mr Witwit that he had contacted the FWO in relation his September salary not having been paid.
(k)On 16 October 2018 the FWO sent an email to the Consulate noting that the FWO had received an enquiry from Mr Al-Attar that the evidence required by the Consulate for sick leave is in excess of that required by the FW Act.
(l)I am not satisfied the 1 November 2018 memorandum is a document the Ministry sent to the Consulate on 1 November 2018; or that it is a document that responds to the 10 August 2018 memorandum; or that it is a document that was created on or about 1 November 2018.
(m)On 8 November 2018 the Consulate received an email from the FWO stating that Ms Yalda had made enquiries in relation to certain policies at the Consulate.
(n)On 15 November 2018 the Consulate received notice of the bullying complaints Mr Al-Attar and Ms Yalda had each lodged with the FWC.
(o)On 27 November 2018 Mr Witwit informed Mr Al-Attar his contract of employment would not be renewed after 31 December 2018 and Mr Witwit told Mr Al-Attar he was not to return to the Consulate after 27 November 2018.
(p)I am not satisfied Mr Witwit alone made the decision on behalf of the Consulate not to renew Mr Al-Attar’s contract of employment. To the extent he did make the decision, alone or otherwise, I am not satisfied Mr Witwit did so because he believed Mr Al-Attar was not a qualified translator, or because he believed his employment constituted or would constitute a financial burden on the Consulate because of the need of the Consulate to engage qualified translators.
APPLICATION OF THE FW ACT TO THE CONSULATE

The question is whether the Consulate’s decision not to renew Mr Al-Attar’s contract of employment constituted a refusal by a prospective employer not to employ a prospective employee within the meaning of item 2 of the table in s 342(1) of the FW Act.
Mr Al-Attar and the Consulate were parties to a contract of employment that was due to expire on 31 December 2018. Until no later than 27 November 2018 when the Consulate informed Mr Al-Attar that his contract of employment would not be renewed, there was a prospect that Mr Al-Attar’s contract of employment would not be renewed beyond that date, and that is because Mr Al-Attar had no contractual entitlement to a further term. There was also a prospect, however, that Mr Al-Attar’s contract of employment would be renewed. That is what had occurred after Mr Al-Attar commenced his employment with the Consulate on 1 June 2016. Thus, until no later than 27 November 2018 when the Consulate informed Mr Al-Attar that his contract of employment would not be renewed, Mr Al-Attar was a prospective employee, and the Consulate was a prospective employer.
Next, it is necessary to consider whether the Consulate’s decision not to renew Mr Al-Attar’s contract of employment constituted a refusal to employ Mr Al-Attar. That must be determined by reference to the following findings:
(a)The Consulate had employed Mr Al-Attar as a translator since 1 June 2016 on fixed term contracts the Consulate renewed in 2017 and 2018.
(b)The Consulate did not at the time it re-engaged Mr Al-Attar and Ms Yalda as translators on 27 June 2018 believe the 2018 Regulation prevented the Consulate from engaging as translators persons like Mr Al-Attar and Ms Yalda who were not qualified translators.
(c)The Consulate employed as translators persons who were not qualified translators after 27 November 2018 when the Consulate notified Mr Al-Attar and Ms Yalda it would not renew their contracts.
(d)There is no evidence the Consulate engaged qualified translators at the time Mr Al-Attar and Ms Yalda were employed, and there is no evidence to support a finding that Mr Al-Attar or Ms Yalda were a financial burden on the Consulate because the Consulate was incurring costs in relation to qualified translators it had engaged.
(e)The Consulate identified only two occasions after 31 December 2018 in which it paid external translators, one being an invoice dated 31 July 2019, and the other being an invoice dated 5 April 2020.
(f)There is no evidence the Consulate had any concerns about the ability and integrity of Mr Al-Attar to perform the functions he had previously been engaged to perform.
In light of these findings, it is open to find, and I do find, that as at 27 November 2018, when the Consulate notified Mr Al-Attar that his contract of employment would not be renewed, the Consulate had at least two vacancies each for at least twelve months after 31 December 2018 for the position of translator which Mr Al-Attar and Ms Yalda had previously filled and which they were capable of filling after 31 December 2018. I therefore find that the decision the Consulate, a prospective employer, conveyed to Mr Al-Attar, a prospective employee, on 27 November 2018 not to renew his contract of employment constituted a refusal by the Consulate to employ Mr Al-Attar to fill one of the two vacancies; and, for that reason, constituted the Consulate’s taking adverse action against Mr Al-Attar within the meaning of item 2 of the table to s 342(1) of the FW Act.
Did Mr Al-Attar exercise any workplace right?
I find as follows:
(a)By providing to Mr Witwit on 29 August 2018 a letter complaining of abuse and bullying by Mr Al-Mashhadani, Mr Al-Attar made a complaint or enquiry in relation to his employment and, for that reason, exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act.
(b)By lodging with the FWC on 31 August 2018 an “Application for an order to stop bullying” in which he claimed he had been bullied by Mr Al-Mashhadani for two years, Mr Al-Attar initiated a proceeding under a “workplace law” within the meaning of s 12(1) of the FW Act and, for that reason, Mr Al-Attar exercised a workplace right within the meaning of s 341(1)(b) of the FW Act.
(c)By making enquiries to the FWO by 28 September 2018 in relation to the Consulate’s not having paid his September 2018 salary Mr Al-Attar made an enquiry or complaint to a person or body having the capacity under the FW Act, being a “workplace law” within the meaning of s 12(1) of the FW Act, to seek compliance with that law; and, for that reason, Mr Al-Attar exercised a workplace right within the meaning of s 341(1)(c)(i) of the FW Act.
(d)By sending on 4 October 2018 an email to Mr Witwit in which Mr Al-Attar informed Mr Witwit that he had contacted the FWO in relation to his September 2018 salary not having been paid and setting out matters relevant to his not having received his September payment, Mr Al-Attar made an enquiry in relation to his employment and, for that reason, exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act.
Did the Consulate take adverse action against Mr Al-Attar because he exercised workplace rights?
The Consulate denies it decided not renew Mr Al-Attar’s employment contract because he lodged a bullying complaint with the FWC or because he had made a complaint or enquiry to the FWO, or because he made any complaint or enquiry to the Consulate in relation to his employment. The Consulate claims it decided not to renew Mr Al-Attar’s employment contract because Mr Al-Attar did not have the qualifications the 2018 Regulation required translators the Consulate employed to have; and also because the Consulate wished to relieve itself of the financial burden of having to employ Mr Al-Attar as a translator in circumstances where the Consulate was engaging qualified translators.
In its written submissions the Consulate submits Mr Witwit “made the decision not to renew Mr Al-Attar’s contract of employment”.[89] I have already found that I do not accept it was Mr Witwit alone who made the decision on behalf of the Consulate not to renew Mr Al-Attar’s employment contract. As I have already noted, the 10 August 2018 memorandum and the 1 November 2018 memorandum, assuming they are what the Consulate claim them to be, show that Mr Witwit purported to do nothing more than make a recommendation to the Ministry; the 10 August 2018 memorandum states that the “mission recommends the non-renewal of the contracts . . . and serving them notifications to that effect”; and the 1 November 2018 memorandum is framed in the language of a direction - ‘[n]otifications shall be sent to the local employees” – thus signifying the communication of a decision made by a person or persons in the Ministry. Thus, on the Consulate’s own evidence, the Consulate has not produced evidence from the person or persons who at the very least participated in making the decision on behalf of the Consulate not to renew Mr Al-Attar’s contract of employment. For that reason alone I would not be satisfied the Consulate has discharged the burden of proving that it decided not to renew Mr Al-Attar’s contract of employment for the reason or for reasons that did not include as a substantial reason Mr Al-Attar exercising his workplace rights.
[89] Respondent’s Outline of Submission for hearing on 7 September 2020, [43]
In any event, even if Mr Witwit alone decided on behalf of the Consulate not to renew Mr Al-Attar’s contract of employment, I have not accepted his evidence and, for that reason, I do not accept the Consulate discharged the burden of proving that it decided not to renew Mr Al-Attar’s contract of employment for the reason or for reasons that did not include as a substantial reason Mr Al-Attar’s exercising his workplace rights. Mr Witwit’s evidence, and the reasons he purportedly recorded in the 10 August 2018 memorandum, are inconsistent with the Consulate on 27 June 2018 having decided to employ Mr Al-Attar some three months after the Consulate became aware of the 2018 Regulation which the Consulate claims mandated the Consulate not to employ unqualified translators; they are inconsistent with the Consulate’s having continued to employ unqualified translators after the Consulate decided not to renew Mr Al-Attar’s contract of employment and had continued to do so up to the day of the hearing before me in September 2020; and they are inconsistent with the absence of any evidence that the Consulate engaged qualified translators during the time the Consulate employed Mr Al-Attar and Ms Yalda. Added to these difficulties are aspects of the documents Mr Witwit purports to authenticate – the 10 August 2018 memorandum, the purported exchange of emails on 11 and 12 August 2018, and the 1 November 2018 memorandum – which have led me not to accept the documents are what Mr Witwit and, through him, the Consulate claim them to be. Finally, there is the absence of evidence of discussions which it is implausible to find did not occur between officers within the Consulate, or between officers of the Consulate and the Ministry, about Mr Al-Attar’s and Ms Yalda’s approaches to the FWO, and their applications to the FWC of which the Consulate was notified on 15 November 2018.
Conclusion
I am satisfied that giving Mr Al-Attar notice on 27 November 2018 that his contract of employment would not be renewed after 31 December 2018 the Consulate took adverse action against Mr Al-Attar, and it did so because Mr Al-Attar exercised his workplace rights. The Consulate, therefore, contravened s 340(1) of the FW Act.
REMEDIES
Mr Al-Attar seeks an order that the Consulate pay a pecuniary penalty, and he also claims an order for compensation.
Mr Al-Attar has not been employed since 31 December 2018. Mr Al-Attar claims as compensation the wages he would have received under the employment contract with the Consulate on the assumption that he would have remained employed with the Consulate. In other words, Mr Al-Attar claims compensation for lost wages at the rate payable under the contracts he held with the Consulate from 1 January 2019 to the day of judgment. Mr Al-Attar, however, has been receiving workers compensation. Mr Al-Attar gave the following evidence:[90]
[90] 02.09.2020 T121.5-T122.15
MR FERNON: Yes. And you claim that you’re unable to work at the moment; is that right?‑‑‑No, I didn’t claim that.
What do you claim?‑‑‑What you mean by ‑ ‑ ‑
You’re receiving workers compensation at the moment?‑‑‑True.
And ‑ ‑ ‑?‑‑‑I’m in the process of looking for a job.
I see ‑ ‑ ‑?‑‑‑ .....
You’re continuing to receive workers compensation and make – and you make regular claims?‑‑‑What do you mean by regular claim?
Well, you make regular claims on your workers compensation for your payments to be continued ‑ ‑ ‑?‑‑‑I didn’t ‑ ‑ ‑
‑ ‑ ‑ up to the present date?‑‑‑ ‑ ‑ ‑ understand the question, sorry.
Well, you’re on workers compensation and you’re continuing to receive workers compensation as you ‑ ‑ ‑?‑‑‑True.
‑ ‑ ‑ sit there?‑‑‑True.
Yes. And for those payments to continue, you continue to indicate that you’re unfit for work; is that right?‑‑‑No, that’s not right.
So what’s the basis upon which you claim compensation?‑‑‑I am not sure if I understand the question, but as long as I am looking for a job, then there’s still – the case is valid.
But you’re claiming money ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ compensation because – well, you’re claiming – I will withdraw that. You’re claiming money as workers compensation, aren’t you?‑‑‑Yes.
What is the basis upon which you claim that money?‑‑‑You mean, what the thing that started the whole thing or ‑ ‑ ‑
No, no, no. What is the basis upon which you claim that money?
HIS HONOUR: Mr Al-Attar, if I can interrupt. You have made an application for workers compensation?‑‑‑True.
That implies that you have some lack of ability to work; is that right?‑‑‑No, it’s ‑ ‑
Is that right?‑‑‑ ‑ ‑ ‑ due to what happened at the Consulate and, to be more specific, in November 2018.
All right?‑‑‑That was the claim.
But the question is because you’re applying for workers compensation, that implies that you are not in a position to work. Is that right or not?‑‑‑Yes, that – at that time, yes, that is true.
But you’re still receiving workers compensation ‑ ‑ ‑?‑‑‑I do.
‑ ‑ ‑ at the moment?‑‑‑Yes.
And the question, I think, is: does that mean that you are still seeking workers’ compensation because you are not in a position to work?‑‑‑Yes, that’s true.
All right?‑‑‑Yes.
Principles
To determine whether an applicant has suffered economic loss because of a contravention of a civil remedy provision of the FW Act, two sets of circumstances must be compared.[91] Where it is not alleged that an applicant failed to mitigate his or her loss, one set of circumstances is actual, and the other is hypothetical. The actual circumstances are those in which the applicant finds himself or herself at the date compensation is fixed or at some earlier appropriate date. The second, and hypothetical, circumstances are the financial position in which the applicant would have found himself or herself at the relevant time had the employer not contravened a civil remedy position. If, after these two positions are identified, the applicant’s actual financial position is less favourable than the hypothetical financial position, compensation will be fixed in an amount that reflects the difference between the two positions. That is, compensation will be fixed in such amount as will put the employee in, or substantially in, the position he or she would have been, had the employer not contravened a civil remedy provision.
[91] I substantially repeat here what I said in Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771, at [87] and [88]
There will usually be little difficulty in determining an applicant’s actual financial position. That will be a matter of history, most of the traces of which will be captured in documents. It is another matter to determine the hypothetical position. Here, judgments must be made, often on the basis of incomplete evidence. That will usually give rise to a range of plausible hypothetical financial positions against which to compare the applicant’s actual financial position and, hence, a range of amounts that it may be reasonable to assess as compensation. Nevertheless, an applicant bears the onus of adducing evidence from which the court can rationally infer a relevant hypothetical position.
Determination
The Consulate submits that, assuming Mr Al-Attar establishes the Consulate dismissed him from his employment, Mr Al-Attar should be entitled to no more than two weeks’ worth of wages because his employment could and would have been lawfully terminated.[92] This submission is based on the premise that Mr Al-Attar “was no longer regarded as qualified to undertake the role of ‘translator’ within the Consulate”.[93] In light of my findings, that premise is incorrect, and compensation cannot be assessed on the assumption that the Consulate would not have decided to renew Mr Al-Attar’s employment after 31 December 2018 because he was not a qualified translator.
[92] Respondent’s Outline of Submission for hearing on 7 September 2020, [55], [56], relying on Willis Australia Group Services Pty Limited v Mitchell-Innes [2015] NSWCA 381, at [117]-[121]. Those passages are authority for the proposition that in assessing damages for repudiation by an employer of an employment contract where the employer could have lawfully terminated the contract on notice, damages are to be assessed having regard to an assessment of the probability that the employer would have in any event have terminated the contract on giving notice.
[93] Respondent’s Outline of Submission for hearing on 7 September 2020, [56]
I have found that after 31 December 2018 the Consulate employed persons who were not qualified translators to perform the work Mr Al-Attar had performed before 1 January 2019; and that remained the position at the time of the hearing before me in September 2020, some twenty one months after the Consulate notified Mr Al-Attar his contract would not be renewed. Mr Al-Attar’s contract of employment had been renewed twice since he commenced employment with the Consulate on 1 June 2016; and the only issue the evidence revealed had arisen in relation to Mr Al Attar’s employment were the complaints and enquiries he had made in relation to his employment. In other words, there is no evidence the Consulate had any concerns with Mr Al-Attar’s capacity to perform the work he had been employed to perform. The Consulate does not claim Mr Al-Attar’s not having found other employment after 31 December 2018 is due to his failing to do that which it was reasonable for him to do to find employment. It is therefore open to me to find, and I do find, that had the Consulate not decided not to renew Mr Al-Attar’s contract of employment in contravention of s 340(1) of the FW Act: the Consulate would have provided Mr Al-Attar with a draft contract of employment covering the year 1 January to 31 December 2019; Mr Al-Attar would have signed the draft contract and given it to the administration manager, thus signifying he would wish to work with the Consulate for the term specified in such contract; the Consulate would have signed the contract without any further need to have any discussion with Mr Al-Attar; and Mr Al-Attar would have continued his employment with the Consulate for the term of such contract. It is also open to me to find, and I do find, there would have been a high probability that before 31 December 2019 the Consulate would have again decided to renew Mr Al-Attar’s contract of employment.
In light of these findings, I am satisfied that the fair measure of Mr Al-Attar’s economic loss is an amount that reflects fifteen months’ worth of wages, inclusive of interest. I will not, however, make an order for compensation until I hear further submissions about the denomination in which the order for compensation should be expressed. That is necessary because the Consulate paid Mr Al-Attar’s wages in amounts denominated in United States dollars.
OTHER ISSUES
In his Form 2 Mr Al-Attar claims the Consulate failed to pay him superannuation, it did not provide him with payslips, and it required Mr Al-Attar to take all annual and sick leave during the course of the year without allowing these benefits to accrue. As I noted at the beginning of these reasons the Consulate submits these were not claims it had come prepared to defend.
In his Form 2 Mr Al-Attar also claims the Consulate failed to pay tax on his income, failed to provide him with group certificates, and did not grant him annual salary increases. These claims do not raise any arguable claim of contravention of any provision of the FW Act.
There is also an issue I raised at the hearing with counsel for the Consulate, and that is whether Mr Witwit’s directing Mr Al-Attar on 27 November 2018 not to return to the Consulate to perform what remained of his contract of employment constituted adverse action within the meaning of s 342 of the FW Act.
DISPOSITION
I propose to make a declaration to the effect that by the Consulate notifying Mr Al-Attar by its letter dated 27 November 2018 that it would not renew Mr Al-Attar’s contract of employment the Consulate contravened s 340(1) of the FW Act. I also propose to list the matter for directions at 9:30 am on 26 March 2021 for the purpose of fixing at that directions hearing a time and day to hear submissions on:
(a)the denomination in which the order for compensation should be expressed;
(b)whether it is open to me to consider whether Mr Al-Attar claims that the Consulate:
(i)failed to provide Mr Al-Attar payslips;
(ii)failed to pay superannuation; and
(iii)required Mr Al-Attar to take annual and sick leave during the course of the year without allowing these benefits to accrue;
(c)whether it is open for me to consider whether the Consulate took adverse action against Mr Al-Attar on 27 November 2018 when Mr Witwit directed Mr Al-Attar not to return to the Consulate; and
(d)if (b) or (c) or both are answered in the affirmative, what directions, if any should be made to be in a position to hear the claims referred to in (b) or the question referred to in (c).

It will also be necessary, at some stage, to set the matter down for hearing on the question of penalty.

I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 19 March 2021

File number(s):	SYG 1756 of 2019
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	19 March 2021
Catchwords:	INDUSTRIAL LAW – general protections – applicant employed as translator by a consulate (Consulate) pursuant to a contract of employment for a fixed term – the Consulate informed the employee before the term of his contract of employment ended that the employee’s contract will not be renewed – the Consulate so informed the employee after the employee had made enquiries of the Fair Work Ombudsman (FWO), and after he made a complaint to, and made an enquiry of, the Consulate in relation to his employment, and after he had lodged an application with the Fair Work Commission (FWC) alleging bullying – the employee claims he was dismissed because he had made enquiries of the FWO and complaints to, and enquiries of, the Consulate in relation to his employment, and because he had lodged a bullying complaint with the FWC – whether the employee’s enquiries of the FWO, complaints to and enquiries of the Consulate, and lodgement with the FWC of a bullying complaint constituted the exercise of a workplace right – whether at the time the Consulate notified the employee it would not renew the employee’s contract of employment the Consulate was a prospective employer and the employee a prospective employee – whether by notifying the employee that the Consulate would not renew the employee’s contract of employment the Consulate as prospective employer refused to employ the employee and therefore took adverse action against the employee as prospective employee – whether the Consulate decided not to renew the employee’s contract of employment for the reason stated by the Consulate, namely, that the Consulate’s policy was to employ only qualified translators which the employee was not and to eliminate the financial burden of having to pay the employee as an unqualified translator in circumstances where the Consulate also had to pay for qualified translators – the Consulate did not discharge the burden that was on it to show it decided not to renew the employee’s contract of employment for the reasons it claimed it did not renew the employee’s contract of employment – the Consulate as the prospective employer therefore is presumed to have taken adverse action against the employee as prospective employee because the employee had exercised his workplace rights by making enquiries of the FWO and by lodging a bullying application with the FWC.
Legislation:	Consular Privileges and Immunities Act 1972 (Cth) Fair Work Act 2009 (Cth) ss 12(1), 14, 30B, 30C(1), 30D, 30G(1), 30L, 337, 339(a), 339(b), 340, 341(1)(b), 341(1)(c), 342, 360, 361(1) Industrial Relations (Commonwealth Powers) Act 2009 (NSW) Vienna Convention on Consular Relations Arts 1(1), 3, 35(1), 61
Cases cited:	Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893 Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124 PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 Stephens v Australian Postal Corporation [2014] FCA 732 Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771 Visscher v The Honourable President Justice Giudice [2009] HCA 34 Willis Australia Group Services Pty Limited v Mitchell-Innes [2015] NSWCA 381 Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499
Number of paragraphs:	107
Date of last submission/s:	15 September 2020
Date of hearing:	1, 2, 3, 4 and 7 September 2020
Place:	Sydney
The Applicant:	Appeared in person
Counsel for the Respondent:	Mr J Fernon SC
Solicitor for the Respondent:	Macpherson Kelley

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	19 MARCH 2021