Emad Soliman (Applicant) v The Cultural Office of the Embassy of the State of Kuwait (Respondent)

[2020] FWC 3142

[2020] FWC 3142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Emad Soliman
(Applicant)
v
The Cultural Office of the Embassy of the State of Kuwait
(Respondent)(C2019/168)

DEPUTY PRESIDENT MANSINI MELBOURNE, 29 JUNE 2020

Application to deal with contraventions involving dismissal.

[1] This decision concerns whether to extend the time within which to lodge an application for the Commission to deal with a general protections dispute involving dismissal, made under s 365 of the Fair Work Act 2009 (Act).

[2] I have determined that the application was filed within the statutory timeframe and must proceed. The reasons for this decision follow.

Was the application made out of time?

[3] Section 366(1) requires that a general protections application involving dismissal:

a) be made within 21 days after the dismissal took effect; or

b) within such further period as the Commission allows having regard to the factors set out in s 366(2).

[4] In this case, there is a dispute about when Mr Soliman (the Applicant)’s dismissal took effect. Accordingly, there is a question as to whether the application was made out of time.

Factual background

[5] In June 2014, the Applicant was employed as an Academic Advisor for The Cultural Office of the Embassy of the State of Kuwait (the Respondent, a foreign government recognised by and operating in Australia). The contract of employment was initially for a 12 month fixed term but provided for automatic extension unless otherwise notified or terminated in accordance with its terms. 1

[6] Relevantly, the contract also provided as follows:

“5-During the term of the validity of this contract the second party shall be subject to the regulations for locally-Engaged staff employed at Diplomatic Missions of the state of Kuwait and to such decisions and circulars as implement those regulations, where there is no specific provision in the contract.” 2

[7] There is a protocol of the regulations for locally engaged staff employed at Diplomatic Missions of the State of Kuwait (Protocol) which applied to the Respondent and was required to be followed in relation to a decision to employ, discipline or dismiss an employee of the Respondent. 3 Dr Waleed Alrefae (the Respondent’s Cultural Attache and Head of the Kuwait Cultural Office) gave evidence that, under the Protocol, he has the delegated responsibility to make staffing decisions subject to confirmation from the Ministry of Higher Education in Kuwait (referred to herein as the MOHE or the Ministry) and in accordance with the Protocol.4 In cross examination, Dr Alrefae also said that he has authority to dismiss any employee based on the Protocol and regulations and that MOHE confirmation is necessary for the financial matters.5

[8] Translated versions of the Protocol were provided to the Commission, as follows:

a) The Respondent sought to rely in these proceedings on an English translation of the Policy (certified on 17 August 2019) which included the following:

“Article 32

The local employee may not be subject to a disciplinary penalty unless after investigating him/her in writing and hearing his/her statements and his advocate’s investigation. The relevant investigation results and the Head of Mission’s decision shall be submitted to the Ministry to decide the appropriate action regarding the violation committed by the employee and the due penalty.” 6(emphasis added to indicate differences in translation)

b) In the Respondent’s evidence there was another English translation of Article 32 (also certified on 17 August 2019, and attached to correspondence dated 22 August 2019 from the Respondent’s lawyer to the Applicant’s lawyer) which used the word “judgement” in place of “decision” (where underlined above). 7

c) The Applicant provided another English translation of Article 32 (certified on 10 July 2019) which used the word “opinion” in place of “decision” (where underlined above). 8

[9] Prior to November 2018, the Applicant had received two disciplinary warnings. 9 The Applicant alleged that he was treated with hostility by the Respondent following “strike action” he had taken in July 2018 and an earlier incident of having embarrassed the Kuwaiti Ambassador which he asserted pointed to a “premeditated agenda .. to get rid of me”.10 The Respondent denied these allegations.11

[10] On 13 November 2018, there was a meeting attended by the Applicant, Dr Alrefae and Mr Mohammad Almatouq (the Respondent’s second Cultural Attache). 12 During the meeting, the Applicant was presented with a complaint made by a sponsored student, containing various allegations that the Applicant’s conduct towards her was inappropriate. The Applicant was questioned about the allegations. There was a discussion about the option for the Applicant to resign and, if he did resign, that he would not suffer “financial penalty”.13 The Applicant refused to resign.

[11] The Applicant’s account was that he was told to resign “within 5 minutes” or otherwise if Dr Alrefae would write to the MOHE then the Applicant would likely lose all of his end of service entitlements. 14 The Applicant said that, when he refused the lure to resign, Mr Almatouq said that he was “Mawqoof=suspended” from work and he was never told that he was “Mafsool=terminated” or fired.15 In cross-examination, the Applicant was shown alternate, unofficial (“google”) translations of these words which were not in evidence and which he did not accept as accurate.16

[12] The Respondent maintained that the Applicant’s termination was “clearly identified” during the 13 November 2018 meeting. 17 Dr Alrefae said that the Applicant was advised that he “would be terminated, subject to confirmation from the MOHE in that regard”.18 In evidence before the Commission, Dr Alrefae said after hearing from the Applicant he decided on 13 November 2018 that termination was appropriate (in consultation with Mr Almatouq). He also said the following:

“As Mr Soliman was walking out of the door to my office, he turned and said words to the effect of ‘what is the solution’. I told Mr Soliman that he would resign if he wished, which would mean he would not incur the financial penalty associated with termination of employment under the Protocol. Mr Soliman replied with words to the effect of ‘No I am not going to resign, send your decision to the Ministry.’ I replied with words to the effect of ‘My decision is termination, and the Ministry will not change that decision.’” 19

[13] Dr Alrefae said he had prepared a third written warning and minutes of the meeting, which were presented to the Applicant on 13 November 2018 but the Applicant refused to sign. 20 Of those records, on which the Respondent sought to rely:

a) A certified translation of the minutes was in evidence and dated 13 November 2018. 21 This records the Applicant’s responses to the complaint and a “Conclusion” that a third written warning was issued for misconduct in public morals and non-observance of the Cultural Office’s laws and accordingly the Applicant was informed of the termination of work as of 14/11/2018 and the sending of an official letter to the Ministry in this regard.

b) A certified translation of the third warning was in evidence, documented by the Respondent and dated 14 November 2018. 22 Dr Alrefae said that it was prepared on 13 November 2018 and the date recorded on the document itself (14 November 2018) was a mistake that he could not otherwise explain.23 The third warning states the reasons why it was issued and that the Applicant “has been suspended from work starting from 14/11/2018 and a letter related to him was sent to the Ministry of Higher Education”.24

[14] Dr Alrefae denied using the term “suspended” and was not able to explain why the official translator used the phrase “suspended from work” in translating the third warning. 25 For his part, the Applicant denied notes being taken by Dr Alrefae or Mr Almatouq and denied being offered any written documents during that meeting.26

[15] It is not contentious that the Applicant continued to work following the disciplinary meeting until the end of the working day on 13 November 2018 and did not perform any duties after that date. He did not have access to the Respondent’s workplace and information technology systems from that date.

[16] A document in evidence titled “internal decision no.3/2018” with the subject line “Subject: Stopping the Academic Advisor Emad Soliman from work” was dated 15 November 2018. This document records that, on the instruction of Dr Alrefae and following an investigation by a committee comprised of Dr Alrefae and Mr Almatouq, it was “decided on.. the termination of the Applicant from work” as of 14 November 2018 and “sending an official letter to the Ministry in this regard”. 27

[17] On 17 November 2018, the Applicant claims to have corresponded with Dr Alrefae and Mr Almatouq by email which included a request for confirmation of the status of his employment. 28 He did not receive any response. The Respondent claims it never received this email and had conducted investigations via its IT service provider but had not found any record of the email being received, although it acknowledged that a more detailed search could be undertaken upon further information which the Applicant had declined to provide.29

[18] On 20 November 2018, Dr Alrefae corresponded with the Under Secretary of the MOHE. 30 The letter detailed the allegations made by the sponsored student, the steps taken to investigate the matter including the Applicant’s responses to the allegations provided on 13 November 2018, that there was a third written warning, and concluded with the following:

“It was also decided to terminate him from work on 14/11/2018 and send a letter related to him to the Ministry of Higher Education. It should be noted that the Advisor had previously received two warnings (attached) because of slackness and negligence in work, based on the above, in accordance with the investigation conducted with the employee in this regard, the Cultural Office request the need to adopt the decision to terminate the services of the Academic Advisor Emad Suleiman as of 14/11/2018 to ensure the work in the Cultural Office runs well and within the regulations and for the benefit of sponsored students.” 31

[19] On 21 November 2018, the Applicant corresponded with an administrative employee of the Respondent (copying Dr Alrefae) to advise of a change to his mailing address and request that they update their records for outstanding or future correspondence, which the Respondent confirmed it had received. 32

[20] On 11 December 2018, another letter was sent from the Respondent to the MOHE. 33 This letter included details of the three warnings and stated:

“Based on the above, the Cultural Office orders the necessity to issue a decision to terminate the services of the Academic Advisor Emad Soliman to ensure smooth progress of the work in the cultural office and according to the regulations and for the benefit of the sponsored students.” 34

[21] On 1 January 2019, another letter was sent from the Respondent to the MOHE with the subject line “Request to terminate the services of local employee / Emad Eddin Sami Soliman”. 35 It said:

“In reference to the above subject and our letter No. 1899 of LB/2018 dated 11/12/2018 we would like to inform you that the local employee / Emad Eddin Soliman has been terminated from work as of 14/11/2018 and on this basis his services will be terminated as of 14/11/2018, the application form for termination of the said employee is attached to you.” 36

[22] On 9 January 2019, the Under Secretary of the MOHE wrote to the Head of the Cultural Office of the Respondent. A copy of this document was provided to the Applicant during the course of these proceedings. 37 The official translation provided by the Respondent was as follows:

“With reference to the above subject, and in response to your Letter No. (1899/2018) dated 11/12/2018 and your Letter No. (9/2019) dated 01/01/2019 embodied order of terminating the services of the mentioned person for a number of reasons related to obstructing the proper functioning of the office. Based on the endorsement in your letter to terminate the services of the employee for obtaining the number of three written warnings.

We shall indemnify you with the approval of the Ministry to terminate the services of the said person and punish him according to paragraph (d) of Article (37) of Ministerial Decree No. 45/99 of the Ministry of Foreign Affairs and deduct only 15% of the total end service benefits. [..]” 38

[23] The translation concludes with a calculation of entitlements based on the Applicant’s service, reflecting that the MOHE considered the Applicant’s service be calculated for the period 16 June 2014 to 14 November 2018.

[24] On 10 January 2019, the Respondent wrote to the Applicant and requested his bank details in order to make payment of the Applicant’s final entitlements. 39 The Respondent said that this communication followed “confirmation from the MOHE”.40 The Applicant said this was the first written communication he had received which implied that his employment had been terminated.41

[25] Also on 10 January 2019, the Applicant caused this application to be filed with the Commission (although he had instructed his then lawyer to file it in late December 2018 and again on 9 January 2019). 42 The original application claimed that the Applicant was “constructively dismissed” on and effective 13 November 2018 and also referenced the Applicant’s uncertainty about the status of his employment.43 Throughout his materials, the Applicant claimed to have experienced various personal difficulties in the period after 13 November 2018. He also said that he was aware that Dr Alrefae was travelling to Kuwait in December 2018 and was waiting to hear of the “verdict” thereafter and in the knowledge that decision making is centralised and would be based on a final decision from the MOHE. It is apparent that he had taken pro bono legal advice at or around 26 November and early December 2018. He said that he did not file the claim earlier because of his personal difficulties and because he could not be sure he was terminated. However, when he had still received no response to his emails or other confirmation, he decided to file the claim.44

[26] On 18 January 2019, the Respondent made payment of the Applicant’s wages for the period 1 to 14 November 2018. On 4 March 2019, his accrued but unused annual leave entitlements were paid. 45 As at 22 August 2019, the Respondent had paid all final entitlements to the Applicant (excluding notice or any payment after 14 November 2018, which it maintained was not owed).46

[27] Procedurally, the matter was initially subject of a decision refusing to extend the time for filing. 47 The first instance decision was quashed on appeal and this matter proceeded by way of remittal.48 Following the remittal, additional evidence was filed including witness statements of the Applicant, Mr Soltan (a former employee of the Respondent, filed by the Applicant), Dr Alrefae and Mr Almatouq (filed by the Respondent). Outlines of submissions, a Statement of Agreed Facts and a list of Agreed Documents were also filed. At the hearing, both parties were granted permission and represented by lawyers pursuant to s 596 of the Act and sought to rely only on the evidence of the Applicant and Dr Alrefae. Both witnesses were cross examined. After the hearing, closing submissions were filed in writing.

The submissions

[28] The Applicant initially indicated his claim was filed outside the 21 day timeframe and said his uncertainty about the status of his employment was the reason for his delay. 49 Nonetheless, in his original application and throughout the various proceedings the Applicant has disputed that he was terminated on 13 November 2018. He maintained he was suspended without pay, not terminated, and relied on his email communications of 17 and 21 November 2018 as proof that he was awaiting confirmation of his employment status. In summary, the Applicant asks the Commission to find that he was not dismissed until he was given written notice on 10 January 2019 because Dr Alrefae had no authority to fire him without referral to the MOHE and there was no investigation documented in writing.50

[29] The Respondent submitted that the Applicant was notified and dismissed on 13 November 2018. It argued that the dismissal was valid at that time in accordance with its own Protocols, including because: an investigation was conducted; an interview was held with the Applicant on 13 November 2018, the Respondent formed the view that there was a continued course of unsatisfactory conduct (evidenced by prior warnings) and serious misconduct; and Dr Alrefae was authorised to make the termination decision subject to MOHE confirmation. The Respondent could not identify the 17 November 2018 email but argued that, in any event, if the Applicant was unclear he made no other attempt to enquire about the status of his employment. It further argued that, even it if it were accepted that the Applicant was suspended (not terminated) on 13 November 2018, then the Applicant understood at the latest by 26 November 2018 (when he consulted a pro bono clearing house for advice) that his employment had ceased. 51 In summary, the Respondent contended that the dismissal took effect on 13 November 2018 and, in the alternative, by 26 November 2018 at the latest.52

Consideration

[30] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). In this case, there is no dispute as to whether a “dismissal” has in fact occurred. However, the effective date of Mr Soliman’s dismissal is strongly contested and is a matter to be determined for the purposes of identifying whether the application was made within the statutory timeframe.

[31] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 53 An employer may communicate a dismissal to an employee “by plain or unambiguous words or conduct”.54 In the case of a dismissal without notice, the dismissal needs to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed.55 A dismissal may be effective even if it is stated to take effect subject to a condition where the condition is clearly identifiable, the condition has been satisfied and the employee is in a position to know the condition has been satisfied.56 A significant contextual consideration in the interpretation of notice of termination may include the terms of the employment contract.57

[32] On all of the evidence before the Commission, I do not consider that the Applicant’s dismissal was communicated to him in such a way that he knew or had a reasonable chance to find out that he had been dismissed on 13 November 2018 or at any time prior to 10 January 2019.

[33] The evidence establishes that the oral communication on 13 November 2018 was not sufficiently clear as to support a finding that the Applicant was dismissed on 13 November 2018. The two witnesses had different recollections of the words used in the 13 November 2018 meeting: Dr Alrefae recalled “terminated”; the Applicant recalled “suspended”. The various and inconsistent translations in evidence serve to highlight that the language is complex. Indeed the Respondent’s translations of its own contemporaneous records of the 13 November 2018 meeting are inconsistent: the minutes of meeting record “termination”; the third warning records “suspension”; yet both records refer to the next step as being an official letter to the Ministry. Dr Alrefae’s evidence was that Ministry confirmation was required and this was repeated consistently throughout the Respondent’s materials. Dr Alrefae also gave evidence that the Applicant’s parting words in the 13 November 2018 meeting reflected his understanding that Ministry confirmation was required before dismissal could be effected. Accepting that Dr Alrefae described his conclusion that dismissal was appropriate as effectively a fait accompli (in that he believed the Ministry would not depart from his conclusion that dismissal was appropriate), this was an acknowledgement that the dismissal was strictly subject to the condition of confirmation by the Ministry. Accordingly, I am not able to conclude that the words used by the Respondent in the 13 November 2018 meeting were plain and unambiguous in communicating to the Applicant that his employment was dismissed.

[34] This is not a case where the oral communication was followed up with a clear written communication to confirm the Applicant’s employment was terminated. Whether the Applicant was presented with but refused to sign the meeting minutes and the third warning on 13 November 2018, there is no evidence that he was asked to take those documents or was subsequently given those documents by other means (ie. email or post). Even if those documents were given to the Applicant, the inconsistencies contained therein do not assist in establishing that the Applicant knew or had a reasonable chance to find out that his employment was terminated rather than suspended pending the Ministry’s confirmation. Further, the consistent message in those records is that a letter will be sent to the Ministry. After 13 November 2018, the Respondent generated various internal documents directed at seeking Ministry approval of Dr Alrefae’s conclusion that termination was appropriate. However, the Respondent did not communicate with the Applicant again after 13 November 2018 until 10 January 2019, the day after it received a response from the Ministry. According to the translation obtained and presented in evidence by the Respondent, the Ministry wrote on 9 January 2019 in response to the internal communications of 11 December 2018 and 1 January 2019. The response said that, based on the Respondent’s endorsement to terminate the services of the Applicant for obtaining three written warnings, the Ministry would indemnify the Respondent with its approval to terminate the Applicant. It was only after receiving this confirmation from the Ministry that, on 10 January 2019, the Respondent emailed the Applicant to request his bank details for processing his final payment at which point it is not contentious that the Applicant clearly understood his employment was dismissed. I find that the status of the Applicant’s employment was not clearly communicated as at the conclusion of the 13 November 2018 meeting and until the written email communication of 10 January 2019.

[35] For completeness, I note that other contextual factors also point to a conclusion that the Applicant was dismissed effective 10 January 2019.

[36] The parties relied on the Applicant’s contract as valid and the incorporated Protocol as binding on both the Applicant and the Respondent at the relevant times, and I accept this on the face of the translated contract and the evidence that is before the Commission. The parties also agreed that Article 32 of the Protocol is applicable in this case. It provides for disciplinary action following an investigation and hearing from the employee subject of the investigation. Both the investigation results and the Head of Mission’s conclusion (whether properly translated as a decision, judgement or opinion) are to be submitted to the Ministry to decide the appropriate action and penalty. Consistently throughout its evidence and other materials, the Respondent contended that the Head of Mission’s decision is subject to confirmation from the Ministry, a contention which accords with the plain words of the translated copy of Article 32 that is before the Commission. Only in cross examination did Dr Alrefae seek to explain that confirmation was for financial purposes. The Protocol does not say this. I accept that Dr Alrefae is authorised to make staffing decisions about local employees however, in the case of termination under Article 32, this is subject to or conditional upon the final act of Ministry approval. In my view, the 9 January 2019 communication from the Ministry, in addition to the internal communications dated 20 November 2018, 11 December 2018 and 1 January 2019, reinforce that the contractual authority to terminate the Applicant’s employment was with the Ministry. The Ministry’s approval was not forthcoming until 9 January 2019.

[37] Further, the Applicant was not immediately dismissed, in that he proceeded to return to work for the remainder of the working day on 13 November 2018. He was not paid in lieu of notice or other entitlements owed with immediate effect such that it may be argued that the employment relationship had come to an end at the time the payment was made. Such payment was in fact made after the email communication of 10 January 2019.

[38] That the Applicant did not attend the workplace after 13 November 2018 does not alter the conclusion that the Applicant’s dismissal in fact took effect on 10 January 2019, following the confirmation from the Ministry to the Respondent of 9 January 2019 and in accordance with the written email communication from the Respondent to the Applicant on 10 January 2019.

[39] I do not accept that the Applicant’s decision to take advice on and from 26 November 2018 forms any basis for a conclusion that the effective date of dismissal was in fact 26 November 2018.

Conclusion

[40] For the above reasons, the Applicant’s dismissal was effective 10 January 2019. The period of 21 days ended at midnight on 31 January 2019. To the extent that the application, which was also filed on 10 January 2019, was premature in that it was not filed after the dismissal took effect in accordance with the language of s 366(1)(a), I consider this an appropriate case to exercise the discretion at s 586(b) and waive the irregularity in the form or manner in which the application was made.

[41] As I have found that the application was not out of time, there is strictly no need for the Commission to be satisfied that there are “exceptional circumstances” pursuant to s 366(2) in order for the application to proceed.

[42] Accordingly, the jurisdictional objection is dismissed and the application will now proceed to conference before the Commission.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR720230>

 1   Form F8 Application filed 10 January 2019, Annexure A at 1.1.

 2   Attachment to Form F8 Application filed 10 January 2019 (Agreed Document A1).

 3   Witness Statement of Dr Alrefae at 2(e).

 4   Ibid at 3; Transcript of Hearing at PN232; PN227-229; PN266; PN275; Respondent’s Outline of Submissions dated 16 October 2019 at 39.

 5   Transcript of Hearing at PN244, 264, 265,274.

 6   Witness Statement of Dr Alrefrae at Annexure WA-1, translation dated 17 August 2019 (Agreed Document R1).

 7   Witness Statement of Dr Alrefrae at Annexure WA-10, translation dated 17 August 2019 (Agreed Document R12).

 8   Applicant’s Witness Statement dated 27 September 2019 at Annexure ESS-1D, translation dated 10 July 2019 (Agreed Document A6).

 9   Witness Statement of Dr Alrefae at 12 and WA-2 (Agreed Documents R1 and R2).

 10   Applicant’s Outline at 1h; Applicant’s Witness Statement dated 27 September 2019 at 19.

 11   Witness Statement of Dr Alrefae at 27 to 29.

 12   Statement of Agreed Facts.

 13   Witness Statement of Dr Alrefae at 19; Applicant’s Witness Statement dated 27 September 2019 at 18.

 14   Applicant’s Witness Statement dated 27 September 2019 at 18.

 15   Transcript of Hearing at PN134, PN135, PN186-189; Applicant’s Witness Statement dated 27 September 2019 at pages 2 and 3; Form F8 Application filed 10 January 2019 at 1.4.

 16   Transcript of Hearing at PN163-166, PN173, PN179-182

 17   Respondent’s Outline of Submissions dated 16 October 2019 at 12.

 18  Transcript of Hearing at PN399 and PN405; consistent with Annexure A to Form F8A Employer’s Response and Respondent’s Outline at 1b.

 19   Witness Statement of Dr Alrefae at 18 and 19, WA-6 and WA-5 (Agreed Documents R6 and R5).

 20   Witness Statement of Dr Alrefae at 18.

 21   Witness Statement of Dr Alrefae at WA-5 (Agreed Document R5).

 22   Witness Statement of Dr Alrefae at WA-6 (Agreed Document R6).

 23   Transcript of Hearing at PN307-PN327.

 24   Witness Statement of Dr Alrefae at WA-6 (Agreed Document R6).

 25   Transcript of Hearing at PN334.

 26   Ibid and at page 3.

 27   Internal Decision 15/11/2018 (marked as Exhibit R14) and Transcript of Hearing at PN223.

 28   Attachment to Form F8 Application filed 10 January 2019 (Agreed Document A2).

 29   Witness Statement of Dr Alrefae at 24 to 26.

 30   Witness Statement of Dr Alrefae at 21; Email to Commission and Applicant’s Representative of 28 October 2019.

 31   Ibid.

 32   Statement of Agreed Facts; Agreed Document A5.

 33   Witness Statement of Dr Alrefae at 22 and WA-7 (Agreed Document R8).

 34   WA-7 (Agreed Document R8).

 35   Witness Statement of Dr Alrefae at 22 and WA-7 (Agreed Document R9).

 36   WA-7 (Agreed Document R9).

 37   Prior to the hearing before me, on 28 October 2019.

 38   Witness Statement of Dr Alrefae at 23 and WA-8 (Agreed Document R10).

 39   Witness Statement of the Applicant dated 27 September 2019 at 18; Annexure A to Respondent’s F8A at 1.13 (Agreed Document A10).

 40   Form F8A Employer’s Response at Annexure A, 1.13.

 41   Applicant’s Outline of Response at 1d.

 42   Applicant’s Witness Statement dated 27 September 2019 at 17 and 20.

 43   Form F8 Application filed 10 January 2019 at 1.2 and 1.4.

 44   Applicant’s Witness Statement dated 27 September 2019.

 45   Form F8A Employer’s Response at 4.1.

 46   Witness Statement of Dr Alrefae at WA-10 (Agreed Document R12). The Applicant did not dispute this payment was made, albeit foreshadowed a separate claim for underpayment (Transcript of Hearing at PN113 – PN114).

 47   Emad Soliman v The Cultural Office of the Embassy of the State of Kuwait [2019] FWC 4074.

 48   Emad Soliman v The Cultural Office of the Embassy of the State of Kuwait [2019] FWCFB 6293.

 49   Form F8 Application filed 10 January 2019 at 1.2, 1.3, 1.4.

 50   Applicant’s closing submissions at 5.

 51   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007); Barolo v Centra Hotel Melbourne, Print Q9605 (AIRC, Whelan C, 10 December 1998).

 52   Respondent’s Closing Submissions at 23.

 53   Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24].

 54   Plaksa v Rail Corporation NSW[2007] AIRC 333 (Cartwright SDP, 26 April 2007) at para. 8; citing Barolo v Centra Hotel Melbourne, Print Q9605 (AIRC, Whelan C, 10 December 1998). Mohammed Ayub v NSW Trains[2016] FWCFB 5500 (Ayub) at [17], [48] and [49].

 55   Ayub at [48].

 56   Ayub at [49].

 57   Mr Peter Mihajlovic v Lifeline Macarthur[2013] FWC 9804 at [4]-[7].