Soliman v The Cultural Office of the Embassy of the State of Kuwait
[2021] FedCFamC2G 351
•14 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Soliman v The Cultural Office of the Embassy of the State of Kuwait [2021] FedCFamC2G 351
File number: CAG 71 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 14 December 2021 Catchwords: INDUSTRIAL LAW – termination of employment – alleged complaint by student and investigation into conduct – dispute over period of notice and payment of long term service entitlements –interpretation of employment contract – obligation to inform of and conduct investigation – no formal interview by decision-maker – whether there was procedural fairness – applicant’s claim found to be established – respondent to pay disputed sum of $20,000 to the applicant within 28 days – orders and relief sought but the applicant should be granted – no order as to costs. Legislation: Fair Work Act 2009 (Cth) ss 548, 570 Cases cited: Avenia v Railway & Transport Health Fund Ltd (2017) 272 IR 151
Byrnes v Kendle (2011) 243 CLR 253
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) PtyLtd (2016) 260 CLR 1; (2016) 333 ALR 384
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Maggbury Pty Ltd v Häfele Australia Pty Ltd (2001) 210 CLR 181
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Royal Botanical Gardens and Domain Trust v South Sydney Council (2002) 240 CLR 45
Toll (FGCT) Pty Ltd v Alphapharm PtyLtd (2004) 219 CLR 165
Westfield Management Ltd v AMP Capital Property Nominees Ltd (2012) 247 CLR 129
[Justice] R. McDougall, “Construction of Contracts: the High Court’s approach,” (2016) 41 Australian Bar Review 103-119
Division: Division 2 General Federal Law Number of paragraphs: 91 Date of last submission/s: 5 May 2021 Date of hearing: 13 April 2021 Place: Canberra Solicitor for the Applicant Chamberlains Law Firm Solicitor for the Respondent Snedden Hall & Gallop Lawyers ORDERS
CAG 71 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EMAD SAMY SOLIMAN
Applicant
AND: THE CULTURAL OFFICE OF THE EMBASSY OF THE STATE OF KUWAIT
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
14 DECEMBER 2021
THE COURT ORDERS THAT:
1.Subject to confirmation within 14 days that the amount already paid to the Applicant in relation to superannuation conformed to the formula set out in Article 37 of the Protocol, within 28 days of the date of these Orders, being by 11 January 2022, the Respondent is to pay the disputed sum of $20,000 to the Applicant.
2.There be no Order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
Introduction
The Applicant was an “academic advisor” employed by the Cultural Office of the Embassy of the State of Kuwait (“CO”) pursuant to a contract dated 16th June 2014. A copy of that contract is Annexure ES-1 to an Affidavit sworn by the Applicant on 5th February 2021, and filed on his behalf on 8th February 2021. He was a liaison officer for Kuwaiti students studying in Australia. His duties were set out in a modest amount of detail in par.6 of his February 2021 Affidavit.
The Applicant claimed that on 13th November 2018 he was suspended. This suspension was said to last until 10th January 2019 when the Respondent formally terminated the Applicant’s services. It would seem that the ending of the Applicant’s services arose out of some concern on the part of the CO regarding his treatment of one student. The Applicant denied anything untoward in relation to the student in question, or indeed, any other student.
By Application filed on 21st October 2019, the Applicant sought payment of $20,000, which was comprised of redundancy pay ($10,240.00) and “other”, being for the two months’ Notice period specified under the relevant Article of the Protocol set out later in these reasons ($9,760.00).[1] Given the amount sought (and disputed by the Respondent) the matter properly came within the “Small Claims” Division of the Fair Work Act 2009 (Cth) (“the FW Act”) (Chapter 4, Division 3, s.548).
[1] The Applicant contended that he was actually owed more but was [relatively] content to proceed with his Application to seek only the $20,000. See pars.45-50 of his February 2021 Affidavit. See also pars.9-10 of the Amended Statement of Claim, filed 1st December 2020.
It will be recalled that under s.548 of the FW Act, (a) the Court is not bound by any rules of evidence and procedure, and (b) legal representation is permissible but only with the leave of the Court. In the current matter, by leave, both parties were legally represented.
The parties were involved in proceedings before the Fair Work Commission (“the FWC”) in June 2020. They concerned an extension of time Application that otherwise arose out of a general protections dispute, and therefore a challenge to jurisdiction by the Respondent. The decision of the Deputy President of the FWC was that (a) the Applicant was not out of time in his Application before the FWC and therefore no extension of time was required; and (b) the effective date of termination of the Applicant’s employment was 10th January 2019 (as opposed to the contention of the Respondent for termination being on 13th November 2018). A copy of that decision is Annexure ES-6 to the Applicant’s February Affidavit.
For the current proceeding in this Court, the judgment of the FWC is of particular assistance if for no other reason because of the summary of issues and evidence detailed in it that were repeated in a number of Affidavits before me. The brevity and clarity of that judgment assists on other fronts too, as noted below.
There were three issues identified by the Respondent in its Case Outline (informally filed on 13th April 2021). Those issues, which were accepted by the Applicant, were as follows (footnotes omitted):
2. Issues
2.1 Whether Article 37 of the Protocol applies to the Applicant and entitles him to an end of service payment (“Article 37 Issue”).
2.3 Whether the Applicant is entitled to payment in lieu of a 2-month notice period under clause 4 of the Employment Contract (“clause 4 Issue”).
2.4 Whether the Applicant was entitled to payment for the suspension period between 13 November 2018 and 10 January 2019 (“Suspension Issue”).
There was an Agreed Statement of Facts, which is set out later in these reasons.
For the reasons that follow, the Applicant’s claim is established. Payment of the disputed sum ($20,000) is to be paid to the Applicant within 28 days. In accordance with s.570 of the Act, there shall be no Order as to costs.
Pleadings – Amended Statement of Claim
Although there was an earlier iteration of it, for current purposes, I need only refer to and detail the Applicant’s Amended Statement of Claim, which was filed on 1st December 2020. It was in the following terms (emphasis in original):
1.The Applicant claims the sum of $20,000.00 to account for the outstanding end of service entitlements owed to the Applicant under the Employment Contract and Local Rules.
2.At all material times, the Applicant was a natural person capable of suing and being sued in their own name.
Employment with the Cultural Office of the Embassy of the State of Kuwait
3.On or about 16 June 2014, the Applicant commenced employment as an academic advisor with the Respondent. The Applicant and Respondent signed an Employment Contract for Locally Engaged Staff of the Diplomatic Mission of the State of Kuwait (Employment Contract). Exhibited at T AB1 is a copy of the Employment Contract.
Particulars
Employment Contract dated 16 June 2014
4.The Employment Contract includes the following terms:
a. Clause 4 provides that either party could terminate the Employment Contract by giving 2 months' notice.
Particulars
Clause 4 of the Employment Contract
b. Clause 5 incorporates the terms of the regulations applicable to locally engaged staff. These regulations are the Local Employees' List of Rules (Local Rules). Exhibited at T AB2 are two translations of the Local Rules.
Particulars
Clause 5 of the Employment Contract
Particulars
Certified Translation of the Local Rules
c. The Local Rules includes Article 37 which provides that end of service entitlements for employees who were employed for less than 5 years will be 2 weeks salary for each year they served.
Particulars
Certified Translation of the Article 37 of the Local Rules
5.On or about 13 November 2018, the Respondent
purportedly verbally terminated the Employment Contract with the Applicantsuspended the Applicant from his duties. The Applicant was not permitted to return to the workplace.6.On or about 10 January 2019, the Respondent emailed the Applicant indicating that they would provide the Applicant with his end of service entitlements and the Applicant was constructively dismissed by the provision of this email.
Particulars
Judgment of Deputy President Mansini in [2020] FWC 3142 dated 29 June 2020.
7.As of today's date, the Respondent has failed to provide the Applicant with the entirety of his end of service entitlements or to pay his 2 months notice in accordance with the terms of the Employment Contract.
8.As of today's date, the Respondent has failed to provide the Applicant with payment for the suspension period from 13 November 2018 to 10 January 2019.
Prayer for Relief
9.The Applicant seeks Orders that the Respondent pay damages as a result of the breach of the Employment Contract and Local Rules for:
a. $10,585.00 for the end of service entitlement calculated in accordance with his length of service since the commencement of the Employment Contract; and
b. $9,760.00 for the two months notice period;
c. $9,287.00 for the suspension period between 13 November 2018 to 10 January 2019.
10.Notwithstanding the claimable amount being
$20,346.00$29,632.00, the Applicant elects to claim for only $20,000.00.11.Any other Order the Tribunal deems appropriate.
Pleadings – Amended Response
An Amended Response was filed on 17th December 2020. It was as follows (emphasis in original):
1.Denies that that the Applicant is owed any outstanding end of service entitlements as claimed in paragraph 1.
2.Admits paragraph 2.
3.Admits paragraph 3.
4.In response to paragraph 4:
(a) Admits sub-paragraph (a);
(b) Admits sub-paragraph (b), subject to the review of the Local Rules exhibited at TAB2 that were not served with the Statement of Claim;
(c) Admits that Article 5 of the employment contract incorporates the protocol of the regulations for locally engaged staff employed at Diplomatic Missions of the State of Kuwait No. 45/99 (“Protocol”);
(d) Admits that Article 37 of the Protocol refers to end of service entitlements in certain circumstances, but says that:
i. Article 37 states that the end of service entitlements will not apply for employees to which Article 28 applies;
ii. Article 28 of the Protocol applies to local staff in relation to which the Mission is required to participate in a general superannuation system in the country of the Mission;
iii. The Respondent was required to pay superannuation on behalf of the Applicant under the Superannuation Guarantee (Administration) Act 1992; and
iv. Article 37 does not apply to the Applicant.
(e) Says that article 31 of the Protocol allows for termination of employment without notice or prior warning in certain circumstances; and
(f) Otherwise does not admit paragraph 4.
5.Does not admit
sparagraph 5.,but says that:(a) the Applicant was terminated verbally and in writing on 13 November 2018; and(b) the circumstances of the termination justified termination without notice;6.
AdmitsIn response to paragraph 6:(a) admits that on or about 10 January 2019 the Respondent emailed the Applicant with the details of his end of service entitlements;
(b) says that the judgment of Deputy President Mansini in [2020] FWC 3142 held that for the Applicant’s dismissal was effective 10 January 2019; and
(c) otherwise denies paragraph 6.
7.Denies paragraph 7 and says that the Applicant has been paid all outstanding wages, superannuation and leave entitlements owed by the Respondent.
8.Admits paragraph 8 and says that the Applicant has been paid all outstanding wages, superannuation and leave entitlements owed by the Respondent.
9.Opposes the orders in paragraph 8 9 on the basis that all entitlements owing have been paid.
10.Notes paragraph
910.11.Does not oppose the order sought in paragraph 11.
Statement of Agreed Facts
The Statement of Agreed Facts, dated 13th April 2021, brief though it was, was as follows:
Statement of Agreed Facts
1.The Applicant commenced employment with the Respondent on 16 June 2014.
2.The terms and conditions of the Applicant’s employment were governed by:
a. The Employment Contract dated 16 June 2014 which is Document 1 in the Agreed Bundle; and
b. By virtue of clause 5 of the Employment Contract, the protocol of regulations for locally engaged staff employed at the Diplomatic Missions of the State of Kuwait.
3.The Applicant does not fall within the category of employees referred to in the first paragraph of Article 37.
4.On 4 March 2019 the Respondent paid to the Applicant an amount of $4,380 representing accrued and unpaid annual leave entitlements.
5.In April 2019 the Respondent paid to the Applicant’s superannuation fund an amount of $23,819.87.
6.On and before 13 November 2018, the Applicant had been receiving a gross salary of $4,880.00 per month.
Overview of Evidence
As noted earlier in these reasons, there are three issues only for the Court to determine. Those three issues largely if not essentially depend upon the construction of (a) the employment contract between the parties (including some curious Protocols that form part of the contract), and (b) the construction/interpretation by the Court of the correspondence between the parties that is annexed to the various Affidavits put into evidence. Accordingly, the limited cross examination of the Applicant and two officials from the Respondent, in my view, did not take the matter very much further, precisely because the issues can and should properly be determined essentially on points of construction. As well, the judgment of the FWC, dated 29th June 2020, obviates even more the need to traverse matters canvassed in the course of the limited cross-examination, notably in circumstances where s.548 of the FW Act expressly excludes the application of rules of evidence, which might otherwise preclude or limit what use could be made of those earlier proceedings.
Two general observations, however, may be made at the outset.
First, on any view of the evidence (including of course the officials from the Embassy), the purported process of investigation regarding a complaint made by a student about the Applicant never involved the Applicant at all. Indeed, in opening submissions, the lawyer for the Respondent confirmed that (a) under the contract of employment (which includes specific provisions from protocols noted below), there was required to be an investigation, but about which and in which, as a not disputed fact, the Applicant was never informed about and never participated in; and (b) upon being invited, without details, to a meeting on 13th November 2018 with the Head of the Cultural Office, Dr Alrefae, the Applicant was presented with a fait accompli regarding the so-called findings of the inquiry and that his employment was facing termination.[2]
[2] See Transcript (13th April 2021) at pp.13 and 14. Hereafter “T” followed by relevant page number.
Although not formally pleaded, the lack of proper process, notably in relation to the investigation, would ordinarily lead to the exclusion of any “findings” that might arise from or be relied upon from that process.[3] Such deficiency would also ordinarily lead to the Court making certain Orders, not least in relation to costs, in the Applicant’s favour, and equally likely, the Court in such circumstances would likely set aside the decision because the so-called process that led to it was so compromised. However, because of the way the matter was pleaded and conducted, with some reluctance, I will put to one side the glaring deficiencies in the lack of process, and the almost ambush process, undertaken against the Applicant.
[3] See T 10 where the Applicant’s lawyer confirmed that no prayer for relief regarding lack of procedural fairness was formally pleaded.
Secondly, it was not questioned that at the meeting on 13th November 2018 at 11am, the period between the Applicant being confronted with accusations or complaints from a student about the propriety of some of his [non-sexual] conversation with her, on the one hand, and on the other hand, the notification to the Applicant of the findings of the investigation and its foreshadowed consequences, was approximately 1 hour. This period of approximately 1 hour was described by the Respondent’s lawyer as a “period of deliberation.”[4] It was hardly a process or period of deliberation.
[4] T 15.
It was also not disputed that the “investigation” only involved the student, who had made the complaint against the Applicant, and Dr Alrefae. I have commented on this aspect above.
There was an Agreed Tender Bundle, in which was a copy of the Employment Contract, as well as translations of relevant sections of the Protocol of “regulations for locally engaged staff.” Some further translations of the relevant Articles in the Protocol were filed, post the hearing.
In the light of the Statement of Agreed Facts, the detailed submissions, and the details in, and findings of, the FWC, it is almost otiose to record the very brief cross-examination of the witnesses involved. This is more so the case in circumstances where each of the witnesses essentially repeated what was in their respective Affidavits. Moreover, in the Respondent’s Outline of Submissions, filed 13th April 2021 (set out in full below), at pars.6.1 and 6.2, the Respondent submitted that (a) the case was a simple one, (b) the Court can and should only have regard to the case as pleaded by the Applicant and to par.9 of the Amended Statement of Claim regarding the relief sought, and (c) the Court “need only pay regard to background [factual] matters insofar as they relate to the interpretation of the impugned provisions of both the Employment Contract and Protocols.”
In these circumstances, I simply recount the basics of the evidence from the Affidavits of the parties and, where necessary (which was remarkably rare) because of any relevant divergence, I note it from the Transcript.
Mr Soliman’s evidence
In paras. 7 – 11 of Mr Soliman’s February Affidavit, he outlined his engagement with senior staff members of the Embassy regarding [alleged] failure to pay superannuation to those employees. This involved him participating in a 24-hour strike in early July 2018 along with 8 of his colleagues.
On 13th November 2018, the Applicant deposed that he was called by “a personal assistant” to a meeting. He confirmed that he was not advised to what the meeting related. He said he could not recall if he brought a support person or being offered to do so.
He said (par. 15) that initially he was not advised, or could not work out, the purpose of the meeting. He was then asked questions about interactions with students and in particular regarding a Ms Alshati. The particular interaction with this student took place on 6th November 2018. The Applicant said he was told by Dr Alrefae that this student had complained about the Applicant and that she had recorded his conversations with her. The Applicant responded saying words to the effect of:
“If you have listened to the call, where have I gone wrong? I treated her like my daughter and I deny any wrongdoing with this student”.
The Applicant said that during the meeting he was requested on a number of occasions to resign. Dr Alrefae said words to the effect:
“You have no option but to hand me your resignation within the next five minutes. Failing to do so, I will then write to the Ministry of Higher Education to recommend terminating your employment and if that would to happen, you will lose your end of service entitlements.”
To this, the Applicant said words to the following effect:
“I have done nothing wrong. I provided my phone number to the student out of concern for her wellbeing as I understand as she is suffering from anxiety and depression. I have never used my mobile to call or text this student.”
At par. 20, the Applicant said that he believed that none of his interactions with the student were inappropriate or unprofessional. He provided a copy, as an example, of an email he sent the student on the 5th November 2018 which, he said, displayed “the tone of our correspondence” (Annexure ES-3 of the Applicant’s February Affidavit).
The Applicant said that he did not remember having any previous performance evaluation sessions with the Respondent.
In pars. 22 – 35, the Applicant set out more recent examples of engagements with the student in question. This included him speaking with a colleague at the Embassy who had previously assisted the same student:
23. On his return work, I remember that my colleague told me words to the effect of:
“This student has made several complaints about me. She can be quite difficult.”
24. I remember the student called the Respondent's office several times for updates on her request.
25. On 2 November 2018, she called me and said words to the effect of:
“Your colleague was not attentive to my requests and I have not been able to reach the Cultural Attache. He seems to always be in meetings.”
26. I responded and explained the situation with words to the effect of:
“I am sorry but these decisions are centralised and we have to wait for the final decision from the Ministry of Higher Education in Kuwait. The only person who can follow up and fast track this is the Head of Office. I can get you in contact with him if you like."
27. At the conclusion of this phone call I remember the Student saying:
a. "I am very pleased that you listen. I am gracious with what you have done for me so far. Thank you."
28. I proceeded to arrange a teleconference with the Head of Office and the Student.
29.I recall based on the Student's poor academic performance, she was previously issued three internal warnings from the Respondent. I remember the Head of the Office following his conversation with the Student asked me to assist her by revoking the internal warnings.
30.On or around 5 November 2018, I recall the Student provided medical certificates that diagnosed her with anxiety.
31.On or about Tuesday 6 November 2018, I called the student to discuss the outcome of her conversation with the head of the office. I remember I said words to the effect of:
"I know you are having a tough time. Here is my mobile number if you are having any issues."
32. I remember being concerned for her wellbeing after discovering she was suffering from depression and anxiety. I have suffered from both of these conditions in the past. From my recollection, all of my dealings with this student and the other students were appropriate, considerate and professional.
33.During a conversation on 9 November 2018, the Student called me to request a deferral of an exam. She had also previously requested I do this for another subject in the previous week. She said words to the effect of:
"You are my Academic Advisor and you have to help. I need to defer my exam."
34.I said I would assist with this process. I recall being further pressured by the Student and said words to the effect of:
"I want to help but unfortunately the KCO does not have any power over the Universities' rules and regulations. We need to wait for them to make their decision. I will hand over your matter to my colleague once he returns to the office on Monday 12 November 2018".
During the meeting on 13th November 2018, the Applicant confirmed that there were a number of students effectively under his care or who he was otherwise supporting, who had a range of difficulties arising from a diverse number of issues (e.g. gambling, drug abuse or mental health). He confirmed that he had previously provided his telephone number to both male and female students. He said he could not recall any direction from the Cultural Office directing him not to provide his number to students.[5]
[5] In this regard, see the email sent by the Applicant to Dr Alrefae dated 17th November 2018 annexed marked ES-4. The original of this email is annexure A to the Applicant’s supplementary Affidavit filed in Court on 13th April 2021.
At the conclusion of the meeting on 13th November 2018, Dr Alrefae advised the Applicant that he was suspended. The Applicant contended that the head of the Cultural Office said to him words to the effect of “You are suspended effective from today”.
At par. 38, the Applicant said he did not recall being provided with “a written or oral reason for the suspension”. He also said that even though he claimed to have done nothing wrong he was content to make an apology to the student if that would assist.
He confirmed that immediately after the meeting he could not access his work email and discovered that it had been locked.
On 10th January 2019, the Applicant confirmed that the Respondent emailed him requesting his bank details to make payment of his final entitlements. Copies of correspondence between the Applicant and Respondent over these matters is referred to in par. 41 of this Affidavit and contained in Annexures ES-5 and ES-6.
The Applicant noted that the decision of the FWC, delivered on 29th June 2020, confirmed that he was suspended between 13th November 2018 and 10th January 2019.
The remainder of this Affidavit, and also the Affidavit filed in Court on 13th April 2021, set out details and provided copies of documents regarding payments received by him. At par. 5 of the April Affidavit, the Applicant confirmed that the email sent to Dr Alrefae on 17th November 2018 was his attempt to seek clarification of his employment status. He confirmed that he did not receive a response to that email.
Dr Alrefae’s evidence
Dr Alrefae is the cultural attaché and head of the Kuwait Cultural Office (“CO”). In his Affidavit filed 5th March 2021, after setting out his general responsibilities (which he has exercised since his appointment on 1st August 2016), he noted at pars. 3 and 4, that part of his responsibilities related to the staff in the Kuwait CO. He confirmed that he had delegated responsibility for making staffing decisions “subject to confirmation from the Ministry of Higher Education in Kuwait (“MOHE”).” He went on to outline, in these same paragraphs, what the process was under the Articles of the relevant Protocol regarding discipline or dismissal of employees. That process provided for (a) “the Head of Mission will investigate any disciplinary issues and will make a decision about the appropriate penalty; (b) him to “write to the Ministry to seek confirmation of the decision and request approval for any associated payments to be made”; and (c) “the Ministry will confirm my decision and approve and process any associated payment”. Annexure WA-1 to this Affidavit is a translation of Article 32 of the Protocol confirming this process. Article 32 is a subject of further consideration later in these reasons.
Dr Alrefae deposed that the decision of the Ministry to process and authorise any payment relevant to this process took approximately 30 – 40 days. He outlined what was involved in that process at par. 5, which I do not need to set out here. He said (at par. 7) that he was unable to process or authorise any payment to an employee without Ministry approval. A little later he confirmed that on each occasion when he has referred a decision to the Ministry for approval, his decision has been confirmed.
Paragraphs 9 – 21 set out Dr Alrefae’s evidence regarding what he described as “termination of the Applicant’s employment”. For example, he noted that, prior to November 2018, the Applicant had received 2 written disciplinary warnings, copies of which are annexed at WA-2. The first warning is dated 9th February 2015, which records “the penalty of written warning because of the lack of job performance in general, which would negatively affect the interest of the sponsored students…”. The second warning is dated 3rd July 2018. This warning recorded that the issues in question related to a “lack of work performance as a result of leaving work and leaving the office deliberately on Wednesday 27/6/2018 at 11:30am and starting work on Thursday 28/6/2018 at 2pm which reflects the slackness and negligence of the employee towards his work…” It will be immediately clear that neither of the two previous warnings related to anything similar to the complaint of the current student that gave rise to the current Application.
From par. 11 and following in this Affidavit, Dr Alrefae confirmed that all conversations took place in Arabic and that he has provided his own translation of them into English.
He said that on Monday 12th November 2018 at 11:45am he received a call from a student, Ms Alshatti, making a complaint about the Applicant. Dr Alrefae asked her to provide some further information which she provided by email being “a written explanation of her complaint about Mr Soliman” and screenshots of the timing of the relevant phone calls. Those screenshots are annexure WA-3.
Dr Alrefae said that on receiving and reviewing the email he became very concerned that Mr Soliman may have engaged in serious misconduct and he arranged to speak to the student again to conduct a further interview “so that the matter could be investigated further”. He said that he called the student back at 3:30pm and spoke with her for more than an hour. He discussed the content of the email (emphasis in original):
(a)I asked her: "is the reason of Emad Soliman's call is to inform of any feedback or decision made by KCO or MOHE regarding the scholarship?"
(b)Sarah replied: "no he did not mention the scholarship matter. He did speak about matters not related to my scholarship. "
(c)I then asked her for more details about the information written in her email.
(d)Sarah said to me words to the effect of: "He spoke to me about travelling overseas, his personal interests and making friends with me." She provided further details about those matters but I cannot now recall the exact words spoken. I do recall being surprised and disappointed at the unprofessional nature of the conversation reported to me.
(e)I asked Sarah: "Why did you not end the call?"
(f)Sarah replied: "I thought he will speak about my scholarship at the end, however he kept talking about himself and asked for my picture and to meet and travel together. He gave me his private number in order to communicate and text by WhatsApp. "
(g)I asked her "did you know his private number before?"
(h)She replied: "I did not know his private number and I never texted or spoke to him on WhatsApp before. Emad Soliman did ask her to meet at Brisbane because he was planning to go for his son's graduation. "
(i)At the end of the call I told her: "we will do a formal investigation and discuss the claim with Emad Soliman." Sarah was quite upset, and so I attempted to calm her down and said to her "not to be worry because Emad Soliman will not call her again and she can call me or Mr. Almatouq if she needed any assistance."
There is no information provided by Dr Alrefae as to what, if any, further investigation he conducted other than speaking with the student and what, if anything, happened between 12th November and the meeting with Mr Soliman on 13th November.
Dr Alrefae said (par. 14) that he asked Mr Soliman to attend an interview in his office for the purpose of “investigating a complaint.” Nothing much probably turns on it but Mr Soliman’s evidence was that he was contacted by a personal assistant to have a meeting and that he was not told what the meeting would be in relation to. Mr Almatouq, another cultural attaché and second in charge in the Cultural Office, was also present. Mr Almatouq provided an Affidavit, filed 5th March 2021, of 5 paragraphs in which he simply said that he had read the Affidavit of Dr Alrefae dated 5th March 2021 and agreed with what was in it.
Dr Alrefae said that the meeting on 13th November 2018 commenced at 11am and that during the interview (perhaps not the most usual description of “an investigation”) he asked Mr Soliman a series of questions about the complaint. He said he took notes, which seem to be those collected at Annexure WA-5. At the end of the interview, he said he asked Mr Soliman to return to his office while “we considered the matter further” and that he would call him back later in the day.
At para. 15, Dr Alrefae confirmed that he discussed Mr Soliman’s “conduct and his responses” with Mr Almatouq and “we formed the view that inappropriate conduct had taken place.” He said that “we also noted his previous two warnings.” He confirmed further that he then logged into the student database and produced a report showing Mr Soliman’s work progress “which I considered to be unsatisfactory.” A copy of that report is Annexure WA-4. That report has a series of hand written notes but with no reference to any other details, for example, regarding how many students he had purported to relate to or any other relevant details.
Dr Alrefae went on to consider what would happen next, saying that:
“Considering all the information before us, Mr Almatouq and I reached a decision that the appropriate outcome would be for a third warning to be issued and for Mr Soliman’s employment to be terminated as a result of the unsatisfactory job employment and conduct. I then typed up my notes from the interview so we could present them to Mr Soliman together with the finding of determination.”
As already noted, copies of the translation of the minutes and of the final warning are at Annexures WA-5 and WA-6. In the course of the details of the “disciplinary warning” dated 14th November 2018, there is included the following (emphasis added):
… As well as the lack of job performance as a result of not updating the students data on the data base in the office in full, as well as the large number of complaints by students in the delay in the completion of transactions and their letters, which reflects negligence and slackness in his work as an academic advisor, which adversely affects the interest of students, the flow of work and compliance with the regulations and has been suspended from work starting from 14/11/18 and a letter related to him was sent to the Ministry for Higher Education.
Dr Alrefae then said that he called Mr Soliman into his office at approximately 1pm on the same day. He said he explained to him that “we had decided that the appropriate disciplinary action was the termination of his employment”. He said he presented Mr Soliman with the final warning and a copy of the minutes which he refused to sign. He said he asked Mr Soliman if he had anything he would like to say but he declined to do so.
At par. 17, Dr Alrefae said that as he was walking out of the door of his office, Mr Soliman turned and said words to the effect of “what is the solution”. He said he told Mr Soliman that he would resign if he wished which would mean that he would not incur the financial penalty associated with termination of employment under the Protocol. He said Mr Soliman confirmed he was not going to resign and said he should send the decision to the Ministry. To this, Dr Alrefae replied that his decision was termination and that the Ministry would not change that. He said that Mr Soliman returned to his office and remained there for the remainder of the day, as he would only be paid for the whole day of work if he remained at the office.
Dr Alrefae confirmed that on the 20th November 2018, he sent a letter to the Ministry explaining Mr Soliman’s termination of employment and the reasons leading to that decision. He sought confirmation of the decision from the Ministry. He sent further letters to the Ministry relating to the Applicant’s termination on 11th December 2018 and 1st January 2019. Copies of translations of those letters are annexed at WA-7.
At par. 21 Dr Alrefae said that on 9th January 2019 he received an email from the Ministry confirming the termination of the employment of Mr Soliman and the payment of his final entitlements. A copy of that email is annexed at WA-8.
Paras. 22 – 26 of this Affidavit simply set out what are said to be Mr Soliman’s “final entitlements”. A number of the paragraphs here are, or approximate, submissions more so than statements of fact. Be that as it may, paragraph 26 is in the following terms:
26.If Mr Soliman's employment was suspended during the period 13 November 2018 to 9 January 2019, it is the policy of the Cultural Office that he was not entitled to pay during that time as:
(a)he was not at work during the period and not entitlement to be paid;
(b)the investigation into his misconduct had been concluded and my decision made that his conduct was serious misconduct; and
( c)there was no basis under his employment contract for him to be paid under those circumstances.
In the course of his cross-examination, Dr Alrefae confirmed, in my view importantly and significantly, that he said to Mr Soliman that his decision had to be confirmed by the Ministry in Kuwait.
Applicant’s outline of submissions
The Applicant’s written submissions were provided on 13th April 2021 and were as follows (emphasis in original):
1.In June 2014, the Applicant was employed as an Academic Advisor with the Respondent.
2.The Contract of Employment ("Contract") [Document 1 of the Agreed Bundle] was initially for a 12 month fixed term but provided for automatic annual extensions unless otherwise notified or terminated in accordance with its terms.
3.Pursuant to Article 5, the Contract incorporated the protocol of regulations for locally engaged staff employed at the Diplomatic Missions of the State of Kuwait ("Protocol"). Translations of Articles 28 to 37 are located at Documents 5-9 of the Agreed Bundle.
Article 32
4.Two translations of Article 32 were provided by Mohammed Berjaoui on 17 August 2019 at the request of the Respondent. One version states:
"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" (emphasis added)
5.The alternative translation of Article 32 provided by Mohammed Berjaoui on 17 August 2019 submitted by the Respondent, uses the word "judgment" in the place of "decision" (underlined above).
6.A further translation of Article 32 provided by the Applicant, certified on 10 July 2019, uses the word "opinion" in place of "decision" (underlined above).
7.It is the Applicant's position that regardless of whether the word "decision", "judgment" or "opinion" is used, it is clear from the following sentence within Article 32 that a subsequent and final decision must be made by the Ministry regarding appropriate action and penalty, and that any decision, judgment or opinion reached by the Head of Mission was conditional upon the Ministry confirmation.
Date of Dismissal
8.On 13 November 2018, the Applicant was called into a meeting with Dr Waleed Alrefae (the Respondent's Cultural Attache and Head of the Kuwait Cultural Office) and Mr Mohammad Almatouq (the Respondent's second Cultural Attache). The Applicant was not informed what the meeting was about and was not offered an opportunity to bring a support person.
9.During the meeting, the Applicant was advised of allegations of inappropriate conduct. During the meeting, Dr Alrefae offered for the Applicant to resign and, if he did not resign, he would lose his end of service entitlements." The Applicant refused to resign. At the end of the meeting Dr Alrefae advised the Applicant he was suspended, pending a further determination by the Ministry.
10.The Applicant was not provided with any written reasons for the suspension or about the complaint against him. The Applicant was unable to access his work emails after the meeting.
11.On 17 November the Applicant contacted Dr Alrefae seeking clarification of his employment status [ES-4 referred to in Affidavit of Emad Soliman dated 5 February 2021]. .
12.The Respondent says that between the dates of 13 November 2018 and 9 January 2019 Dr Alrefae engaged in correspondence with the Ministry of Higher Education in Kuwait ("Ministry") about the Applicant's employment [Affidavit of Waleed Alrefae dated 5 March 2021, paragraphs 19 - 21]. In particular Dr Alrefae admits:
a. On 20 November 2018 he sent a letter to the Ministry and "sought confirmation of the decision" [paragraph 19 of Dr Alrefae's Affidavit dated 5 March 2021].
b. On 9 January 2019 Dr Alrefae received an email from the Ministry "confirming the termination of the employment of Mr Soliman" [paragraph 21 of Dr Alrefae's Affidavit dated 5 March 2021]
13.On 10 January 2019, the Respondent wrote an email to the Applicant requesting his bank details in order to make payment of the Applicant's final entitlements [Document 4 in Agreed Bundle]. This was the first written communication received by the Applicant which implied that his employment had been terminated.
End of Service Entitlements
14.Article 37 of the Protocol provides for end of service entitlements to be paid.
15.Due to the use of the word "and" in the second paragraph, the exception referred to in paragraph 2 of Article 37 requires the employee to fall within "the previous paragraph and in article 28". The Respondent admits that the Applicant does not fall within the first paragraph of Article 37.
16.Article 28 of the Protocol does not apply to the Applicant because:
a. The requirement to pay superannuation to the employee was not registered in the employment contract specifying the participation rate between the two parties; and
b. The Respondent did not obtain a declaration that the Applicant will bear the full expenses of his contribution in the superannuation system.
17.The only reference to superannuation in the Contract is Article 8(3) which provides:
"As an important part of the Australia government's retirement scheme each employee is responsible for his/her own superannuation welfare scheme"
18.Article 8(3) does not specify the requirement of the Respondent to pay superannuation to the Applicant, nor does it set out the rate of superannuation. In addition, Article 8(3) does not include a declaration about the Applicant bearing the full expenses of his contributions.
19.Finally, the Applicant was not paid any superannuation during the course of his employment. On 8 April 2019, 3 months after the end of his employment, the Applicant the Respondent paid a lump sum payment to the Applicant's superannuation fund.
20.For the reasons set out above, the Applicant was not excluded from the operation of Article 37 and is entitled to end of service reward.
21.On 9 January 2019 the Ministry gave a determination to deduct an amount of 15% of the value of the end of service reward [WA-8 to the Affidavit of Dr Waleed Alrefae dated 5 March 2021]. The end of service entitlements calculated by the Ministry in that email were $8,221.62.
Notice Period
22.Article 4 of the Contract provides requires a minimum of two (2) months' notice to terminate the Contract.
23.The Respondent says that Article 31 of the Protocol allows for termination of employment without notice or prior warning in certain circumstances. Article 31 which require a final determination from the Ministry about any disciplinary penalties.
24.It is the Applicant's position that he has never engaged in any of the conduct described in the bullet points to Article 31 and in particular:
a. The Applicant denies that he engaged in inappropriate conduct towards a student;
b. This denial was made known by the Applicant to the Respondent on 13 November 2018 when he was first confronted with the allegations;
c. The Respondent did not provide the Applicant with any written statements or other documents regarding the allegations;
d. The Applicant was not given a written report of the allegations, nor was he provided with an opportunity to properly respond to the allegations;
e. A proper investigation regarding the allegations was not carried out; and
f. The allegations against the Applicant have not been proven.
25.Furthermore, the Respondent has not complied with Article 32 in that it did not investigate him in writing and hear his statements or his advocate's investigation.
26.In the circumstances, the Respondent was not entitled to terminate the Applicant's employment without notice and Article 4 of the Contract remains enforceable to require the Respondent to provide a minimum of two (2) months' notice of termination.
Payment for suspension period
27.As set out in paragraphs 8 to 13 it is the Applicant's position that on 13 November 2018 his employment was suspended, and he was not notified of termination of his employment until 10 January 2019.
28.The Applicant was precluded from attending his workplace during this period of suspension and access to his emails was revoked.
29.The Applicant has not been paid for this period of suspension.
These are the submissions of the Applicant.
Respondent’s outline of submissions
The Respondent’s written submissions were emailed to Chambers on 13th April 2021 and were as follows: (footnotes omitted)
1.Facts
1.1The Applicant commenced employment with the Respondent on 16 June 2014.
1.2The Applicant’s employment is governed by an employment contract dated 16 June 2014 (“Employment Contract”) and the protocol of the regulations for locally engaged staff employed at Diplomatic Missions of the State of Kuwait No 45/99 (“Protocol”).
1.3The Respondent dismissed the Applicant on 13 November 2018 due to performance issues and serious misconduct.
1.4The Applicant lodged a general protections application involving dismissal in the Fair Work Commission in relation to his dismissal on 9 January 2019 (“FWC Application”).
(a) A jurisdictional objection was made on the basis that the Respondent appealed out of time. In October 2019, the Commission heard an application from the Applicant for his FWC Application to proceed out of time. On 13 June 2019, Commissioner Yilmaz ordered that the application be dismissed, concluding that the Applicant had not substantiated exceptional circumstances for an extension of time (“FWC Decision”)
(b) The Applicant appealed the FWC Decision. On 29 June 2020, Deputy President Mansini allowed the appeal and ordered that the application proceed before the Commission (“Appeal Decision”).
(c) On 21 December 2021 Deputy President Millhouse issued a certificate under s368 of the Fair Work Act 2009. The Applicant did not commence proceedings in the Federal Circuit Court within the required timeframe to progress that claim further.
1.5Concurrent to the FWC Application, the Applicant commenced the current small claim before the Federal Circuit Court (‘Court’).
1.6The Applicant now claims the following entitlements:
(a)$10,585.00 for the end of service entitlement calculated in accordance with the length of service since commencement of the Employment Contract;
(b)$9,760.00 for the two months’ notice period pursuant to the Employment Contract;
(c)$9,287.00 for the suspension period between 13 November 2018 to 10 January 2019.
1.7In accordance with the jurisdiction of this Court, the Applicant elects to claim for $20,000.00.
1.8The Applicant has been paid the following to the Respondent by way of final entitlements:
(a)Unpaid wages in the amount of $2,114.67 on 18 January 2019;
(b)Payment of 30 days annual leave in amount of $4,380.00 on 4 March 2019; and
(c)Payment of superannuation in amount of $23,819.87 on 3 April 2019.
2 Issues
2.1 Whether Article 37 of the Protocol applies to the Applicant and entitles him to an end of service payment (“Article 37 Issue”).
2.2 Whether the Applicant is entitled to payment in lieu of a 2-month notice period under Article 4 of the Employment Contract (“Article 4 Issue”).
2.3 Whether the Applicant was entitled to payment for the suspension period between 13 November 2018 and 10 January 2019 (“Suspension Issue”).
3 Contentions – Article 37 issue
3.1Article 37 states that the end of service entitlements will not apply for employees to which article 28 applies.
3.2The Respondent was required to pay superannuation on behalf of the Applicant under the Superannuation Guarantee (Administration) Act 1992 (Cth). Employers, including foreign missions and consulates, are required to pay superannuation guarantee contributions.1
3.3Article 28 therefore applies to the Applicant as the Respondent was obliged “to local staff to participate in general superannuation system in the country of the Mission”.2
3.4In accordance with its obligations, the Respondent has paid superannuation entitlements owing to the Applicant in the sum $23,819.97.
3.5 Accordingly, there is no end of service entitlement owing to the Applicant.
4 Contentions - Article 4 Issue
4.1 Article 4 of the Employment Contract provides for termination of employment on 2 months’ notice, conditional on the employee being on duty during that period.
4.2The Applicant was not on duty again, and did not attend work, after 13 November 2018.
4.3Article 4 must be read in conjunction with Article 31 of the Protocol. The Protocol is incorporated into the Employment Contract by virtue of Article 5 of the Contract.
4.4Article 31of the Protocol enables the Respondent to impose a disciplinary penalty by way of termination without notice if the conduct of a locally engaged employee falls within the matters contemplated by Article 31.
4.5The Respondent conducted an investigation into the Applicant’s conduct which was substantiated following that investigation. The circumstances surrounding the Applicant’s dismissal fall within the matters considered by Article 31.3
4.6The Applicant was summarily dismissed on the basis of his conduct pursuant to Article 31.
4.7Accordingly, the Respondent is not entitled to payment in lieu of a 2-month notice period on the following bases:
(a)the Applicant was not on duty during the period, as required for notice to be paid under Article 4 of the Contract; and
(b) the Applicant was summarily dismissed under Article 31.
5 Contentions - Suspension Issue
5.1 The Applicant claims that for the period of 13 November 2018 to 10 January 2019 his employment duties were suspended.
5.2The decision of Deputy President Mansini in the Appeal Decision confirms that the Applicant’s dismissal was effective 10 January 2019 (in the context of determining whether it was appropriate to exercise her discretion pursuant to section 586 of the Act to and allow an application out of time to proceed).
5.3The Appeal decision establishes that the Applicant received oral communication on 13 November 2018, although it was not sufficiently clear that he was dismissed.
5.4The question then arises, what was the status of his employment in the period from 13 November 2018 to 10 January 2019.
5.5Whilst the termination was not in fact effective until 10 January 2019, it is still not the case that the period from 13 November 2018 to 10 January 2019 can be characterised as a suspension.
5.6The Respondent says that from its perspective, the Applicant was summarily dismissed on 13 November 2018, pending confirmation from the Ministry (based in Kuwait). The evidence of Dr Waleed and Mr Almatouq will be that the Applicant was clearly told he was dismissed, and was never told his employment was suspended.
5.7 The Respondent did not return to 13 November 2021.
5.8Article 31of the Protocol enables the Respondent to impose a disciplinary penalty by way of termination without notice if the conduct of a locally engaged employee falls within the matters contemplated by Article 31. However, Article 32 clarifies Article 31, the effect of which is that the local employee (the Applicant) may not be subject to a disciplinary penalty unless:
(a)there has been an investigation;
(b) the decision Head of Mission is submitted to the Ministry; and
(c) the Ministry confirms the appropriate action.
5.9The period of 13 November 2018 to 10 January 2019 must be read against those provisions and the practical realities of facilitating a foreign mission. The Employment Contract is silent as to whether the Applicant is entitled to payment for the period during which he was purportedly suspended.
5.10The Respondent was entitled to terminate the Applicant’s employment by way of termination without notice in circumstances where it had received a serious complaint about the Applicant’s conduct, following two prior warnings for workplace conduct.
5.11The Respondent proceeded to investigate the complaint and made a finding. This was subsequently sent to the Ministry for confirmation.
5.12The Applicant was aware that his employment had been terminated, subject to confirmation from the Ministry.
5.13There are competing accounts in the body of evidence as to whether the communication to the Applicant was a termination or suspension. As noted in the appeal decision [at 33], the Applicant was aware that the next step was official letter to the Ministry.
5.14It was ordinary course for matters associated with the Applicant’s employment to be subject to approval by the Ministry. This is confirmed by various provisions of the Employment Contract:
(a)Article 5 of the Employment Agreement makes it plain that the Applicant would be subject to the regulations for locally engaged staffed which were prescribed by the Ministry;
(b) Article 31 of the Protocols makes several references to the “Mission”;
(c)Article 37 of the Protocols makes it plain that local staff performing service duties will have their salaries considered and fixed by the Ministry;
(d)Article 28 of the Protocols makes it plain that the Ministry approves payments for superannuation payments owing to employees engaged in a particular Mission.
5.15The Applicant was therefore aware that the matter was subject to confirmation of the Ministry. This is the point at which the termination became effective and the final entitlements could be paid.
5.16Because the termination was not effective before, it is not the case that there was a suspension. Following 13 November 2018, the Respondent was taking no further steps to investigate the complaint or consider the appropriate sanction – the decision had been made, and the Respondent was simply complying with a process.
5.17The Applicant may raise questions as to the validity of the summary dismissal. However, such concerns may only be ventilated in a separate claim, which the Applicant has not brought. It did not proceed with its general protections claim, despite being afforded the opportunity to do so by virtue of the Appeal Decision.
6Conclusion
6.1This is a simple case. The Applicant’s claim is a small claim and the Court’s consideration is limited only to the items claimed in the prayer for relief claimed by the Applicant (as per paragraph 9 of its Amended Statement of Claim).
6.2The Court need only to pay regard to background matters insofar as they relate to interpretation of the impugned provisions of both the Employment Contract and Protocols.
6.3The Applicant claims entitlements to which he is not entitled by virtue of the Employment Contract and Protocols.
6.4This Application ought to be dismissed on its facts, considering the proper interpretation of the relevant provisions of both the Employment Agreement and Protocols as outlined above, in accordance with their plain and ordinary meaning.
6.5The Applicant is entitled to no further payment of moneys.
Applicant's closing submissions
The Applicant’s closing written submissions were filed on 20th April 2021 and were as follows:
End of Service Entitlements
1.Article 37 requires the payment of end of service entitlements unless the employee falls within the exceptions in paragraph 2. Due to the use of the word "and" in the second paragraph of Article 37, the exception referred to in paragraph 2 of Article 37 requires the employee to fall within "the previous paragraph and in article 28". The Respondent admits that the Applicant does not fall within the first paragraph of Article 37 [Agreed Statement of Facts].
2.Further, if it were determined that the reference to "the previous paragraph" and "Article 28" are in the alternate, the Applicant says that Article 28 of the Protocol does not apply to the Applicant because:
a. The requirement to pay superannuation to the employee was not registered in the employment contract specifying the participation rate between the two parties; and
b. The Respondent did not obtain a declaration that the Applicant will bear the full expenses of his contribution in the superannuation system.
Both of these factors are specifically required by Article 28.
3.Article 8(3) of the Employment Contract does not specify the requirement of the Respondent to pay superannuation to the Applicant, nor does it set out the rate of superannuation. In addition, Article 8(3) does not include a declaration about the Applicant bearing the full expenses of his contributions. Dr Alrefae was not able to identify any declaration being made by the Applicant.
4.Finally, the Applicant was not paid any superannuation during the course of his employment. On 8 April 2019, 3 months after the end of his employment, the Respondent paid a lump sum payment to the Applicant's superannuation fund.
5.For the reasons set out above, the Applicant was not excluded from the operation of Article 37 and is entitled to the end of service reward.
6.On 9 January 2019 the Ministry gave a determination to deduct an amount of 15% of the value of the end of service reward [WA-8 to the Affidavit of Dr Waleed Alrefae dated 5 March 2021]. The end of service entitlements calculated by the Ministry in that email were $8,221.62.
Notice Period
7.Article 4 of the Contract requires a minimum of two (2) months' notice to terminate the Contract.
8.It is the Applicant's position that he has never engaged in any of the conduct described in the bullet points to Article 31. Furthermore, due process and natural justice were not afforded to the Applicant as a proper investigation did not take place. The Applicant was not informed of the allegations until the meeting of 13 November 2018 between 11am and 12pm. He was notified of the decision to suspend his employment at about 1pm that day, and no further opportunity was given to the Applicant to respond to the allegations. Therefore, the Respondent did not comply with the requirements in Article 32 to investigate the Applicant in writing and hear his statements.
9. In the circumstances, the Respondent was not entitled to terminate the Applicant's employment
Payment for suspension period
10.It is the Applicant's evidence that he was not notified of his termination at the conclusion of the meeting on 13 November 2018. Rather, he was advised by Dr Alrefae that his employment was suspended, pending a further determination by the Ministry.
11.The Applicant attempted to contact the Respondent on 17 November 2018 and subsequently 21 November 2018 but did not receive a response.
12.It is clear from the second sentence within Article 32 that a subsequent and final decision must be made by the Ministry regarding appropriate action and penalty, and that any decision, judgment or opinion reached by the Head of Mission was conditional upon the Ministry confirmation. The Head of Mission did not have the power to make final determinations about the termination of staff.
13.Consistent with these requirements, Dr Alrefae issued a warning notice to the Applicant on 13 November 2018 which advised the Applicant he was suspended. Dr Alrefae also sent subsequent correspondence to the Ministry seeking confirmation to terminate the Applicant's employment, and the Ministry responded on 9 January 2019 confirming the termination [these documents are Annexed to Dr Alrefae's Affidavit].
14.The Applicant was not notified of the final decision to terminate his employment until 10 January 2019 [Document 4 in Agreed Bundle]. This was the first written communication received by the Applicant which implied that his employment had been terminated.
15.Therefore it is the Applicant's position that on 13 November 2018 his employment was suspended, and he was not notified of termination of his employment until 10 January 2019. The Applicant has not been paid for this period of suspension.
Respondent’s closing submissions
The Respondent’s closing outline of submissions were filed on 5th May 2021 and were as follows: (footnotes omitted)
Investigation Timeline
1.On 12 November 2018, Dr Waleed Alrefae received a complaint from a student and investigated the complaint with the student by seeking more information in a phone interview and in writing.
2.On 13 November Dr Alrefae conducted a meeting with the Applicant for the purposes of providing the Applicant with the opportunity to respond to the allegations, with Mr Almatouq also present. That meeting took place at 11am and ran for approximately one hour, during which time the Applicant was asked a series of questions about the complaint.
3.Following the meeting Dr Alrefae and Mr Soliman considered the information gathered during the investigation and deliberated for approximately one hour, and formed the view that serious misconduct had taken place. The Applicant was called back to the meeting at approximately 1pm. It was relayed to him that his employment had been terminated.
End of service entitlements
4.The Respondent submits that the Court interpret the relevant provisions of the Employment Contract and Protocol in accordance with their plain and ordinary meaning. That is, the starting point is the words actually used.
5.Article 37 states that the end of service entitlements will not apply for employees to which article 28 applies.
6.Article 28 applies because the Respondent was required to pay superannuation on behalf of the Applicant under the Superannuation Guarantee (Administration) Act 1992 (Cth). It was therefore an implied term of the Employment Contract that the Respondent would pay superannuation entitlements at the rate stipulated by the law at the relevant time.
7.Article 8.3 of the signed Employment Agreement stipulates that “as an important part of the Australia government’s retirement scheme each employee is responsible for his/her own superannuation welfare scheme”, meeting the requirements of Article 28 that the employee provide a declaration.
8.In accordance with its obligations under law and the Employment Agreement, the Respondent has paid superannuation entitlements owing to the Applicant in the sum $23,819.97. The Respondent concedes it had made an error in not paying superannuation during the course of employment, rectified by the lump sum payment.
9.The end of service entitlement calculated by the Ministry with a 15% reduction was determined on the basis that superannuation was not payable. Once the Respondent rectified its superannuation underpayment then end of service entitlement ceased to be payable.
Notice Period
10.In accordance with Article 31 of the Protocol, the Applicant was summarily dismissed by the Respondent following a finding of serious misconduct.
11.The Applicant did not return to work after 13 November 2018 (the date of termination).
12.By virtue of Article 4 of the Employment Contract, the Applicant is not entitled to payment in lieu of 2 month notice period on the following bases:
(a)The Applicant was not on duty during the period as required by Article 4 of the Employment Agreement; and
(b) The Applicant was summarily dismissed pursuant to Article 31.
13.This accords with the ordinary and plain meaning of both Article 31 of the Protocol and Article 4 of the Employment Agreement.
14.Article 31 of the Protocol does not prescribe the manner in which an investigation ought to be conducted.
15.However, the Respondent contends that both due process and natural justice were afforded (if accepted as implied terms of Article 31) to the Applicant in circumstances where:
(a) The Respondent received a formal allegation from a student;
(b)That allegation was substantiated by extracts of relevant correspondence which the Respondent had the benefit of considering;
(c)The Respondent conducted an interview with the Applicant for approximately one hour;
(d)The interview notes were transcribed and considered by Dr Alrefae in conjunction with Mr Alamtouq;
(e) A decision, whilst unfavourable to the Applicant, was then reached.
16.In the alternative, issues pertaining to the investigation (namely whether it was conduced in accordance with due process and natural justice) are not a concern for the Court exercising its jurisdiction in this matter.
Suspension Period
17.The Applicant claims that his employment was not terminated but rather suspended. It is the Respondent’s respectful submission that the Court should find that the Applicant’s employment was terminated because:
(a)The evidence of Dr Alrefae with respect to the communication to the Applicant at the second meeting on 13 November 2018 is corroborated by Mr Almatouq;
(b)That evidence is consistent with the fact that after 13 November 2018, the Applicant did not return to work and further, his access to the premises on which the Embassy is located was completely cut off;
(c)The Respondent paid the Applicant’s final entitlements in due course accounting for the date of 13 November 2018.
18.The Applicant was aware that as at 13 November 2018 his employment had been terminated. This was subject of official declaration by the Ministry in Kuwait, a process that the Applicant ought reasonably to have been aware would take time.
19. This is also the practical effect of Article 32 of the Protocol.
(a)Therefore, the period between 13 November 2018 and 10 January 2019 was merely a time in which the decision to terminate was being ratified by the Ministry. The Applicant is therefore not entitled to payment for a suspension period because it was not a period of suspension.
Outline of principle
I note the following statements of principle regarding the construction of contracts from a range of High Court decisions.
In Maggbury Pty Ltd v Häfele Australia Pty Ltd, Gleeson CJ, Gummow and Hayne JJ said, at [11] (internal citations omitted):[6]
Interpretation of a written contract involves, as Lord Hoffmann has put it: “the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.”
[6] Maggbury Pty Ltd v Häfele Australia Pty Ltd (2001) 210 CLR 181.
In Royal Botanical Gardens and Domain Trust v South Sydney Council, the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said, at [10] (internal citations omitted):[7]
[10] In Codelfa, Mason J (with whose judgment Stephen J and Wilson J agreed) referred to authorities which indicated that, even in respect of agreements under seal, it is appropriate to have regard to more than internal linguistic considerations and to consider the circumstances with reference to which the words in question were used and, from those circumstances, to discern the objective which the parties had in view. In particular, an appreciation of the commercial purpose of a contract:
“presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating”.
Such statements exemplify the point made by Brennan J in his judgment in Codelfa:
“The meaning of a written contract may be illuminated by evidence of facts to which the writing refers, for the symbols of language convey meaning according to the circumstances in which they are used.”
[7] Royal Botanical Gardens and Domain Trust v South Sydney Council (2002) 240 CLR 45.
In both Pacific Carriers Ltd v BNP Paribas and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (“Toll”), the High Court emphasised the importance to ensure that “the meaning” of [commercial] contracts is to be determined “objectively.”[8]
[8] Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40].
Then in Byrnes v Kendle, by reference to the earlier decision in Toll, the High Court said (Heydon and Crennan JJ), at [98] (internal citations omitted; emphasis added):[9]
The approach taken to statutory construction is matched by that which is taken to contractual construction. Contractual construction depends on finding the meaning of the language of the contract – the intention which the parties expressed, not the subjective intentions which they may have had, but did not express. A contract means what a reasonable person having all the background knowledge of the “surrounding circumstances” available to the parties would have understood them to be using the language in the contract to mean. But evidence of pre-contractual negotiations between the parties is inadmissible for the purpose of drawing inferences about what the contract meant unless it demonstrates knowledge of “surrounding circumstances”. And in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd this Court said:
“It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.”
[9] Byrnes v Kendle (2011) 243 CLR 253.
Two further, and very recent, High Court decisions have essentially applied the principles set out in the earlier cases to which I have referred. I need not consider them.[10]
[10] See Westfield Management Ltd v AMP Capital Property Nominees Ltd (2012) 247 CLR 129, Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, and more recently, see Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) PtyLtd (2016) 260 CLR 1; (2016) 333 ALR 384. See also the very helpful article by NSW Supreme Court Justice McDougall¸ “Construction of Contracts: the High Court’s approach,” (2016) 41 Australian Bar Review 103-119.
Specifically in relation to the construction of contracts of employment and related matters, the decision of Lee J in Avenia v Railway & Transport Health Fund Ltd, is particularly instructive and helpful.[11] For example, at [115] – [116], his Honour noted:
[115] … the rights and liabilities under a contract are to be determined objectively, by reference to a textual as well as a contextual analysis (that is, by reference to the entire text of the contract as well as any contract or document referred to in the text) and purpose. Ordinarily, this process of construction is possible by reference to the contract alone but sometimes, where there is constructional choice, recourse to events, circumstances and things external to the contract is necessary (including the genesis of the transaction and the commercial background): see Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104 at [46] – [52] per French CJ, Nettle and Gordon JJ; [107]-[113] per Kiefel and Keane JJ; [119]-[121] per Bell and Gageler JJ, and the observations of Kiefel, Bell and Gordon JJ in Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 91 ALJR 486 at [16] – [17], citing Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
[116] It is also trite that the court is entitled to approach the task of construction on the basis that the parties intended to produce a contract that makes commercial sense, that is, a contract consistent with the commercial object of the agreement: see Woodside Energy at [35].
[11] Avenia v Railway & Transport Health Fund Ltd (2017) 272 IR 151.
At [142], Lee J set out basic principles regarding the use and determination of “implied terms” in a contract of employment as follows:
The Full Court in University of Western Australia v Gray (2009) 179 FCR 346 at [135], … observed that contractual terms implied in fact (of the kind contended for by the parties in the present case) are “individualised gap fillers, depending on the terms and circumstances of a particular contract”. Gageler J in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [113] made the same point, drawing the distinction between contractual terms implied in law (which can be seen as incidents attached to standardised contractual relationships, operating as "default rules") and terms implied in fact which should only be implied where the well-known conditions set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 are met, including that the term is “necessary” to give “efficacy” to the particular contract, and that the term to be implied is not inconsistent with any express term of the contract.
At [154], Lee J dealt with principles in relation to suspension of an employee, thus:
At common law, an employer has no right to suspend an employee without pay for misconduct, even if that misconduct would justify summary dismissal – that is, an employer must take an “all or nothing” approach and either dismiss the employee or treat the contract as continuing (with the possibility of claiming damages against the employee for the breach).
These further statements of principle, regrettably not mentioned by either party in submissions, or likewise the earlier authorities regarding the construction and interpretation of contracts were similarly omitted from any submissions, are particularly important in the current matter.
Consideration & disposition
I will deal with each of the three specific issues as they were set out in submissions, thus (a) the Article 37 Issue; (b) the Clause 4 Issue; and (c) the Suspension Issue. However, before doing so, it is important to note some matters regarding the contract more generally.
First, it is not a criticism to observe that the contract of employment is not of a more regular or standard kind. For example, Clause 6 of the contract stated (emphasis added):
Any dispute which may arise between the parties as to the implementations [sic] or interpretation of the contract shall be subject to the generally acknowledged principle of international law.
No such “generally acknowledged principle of international law” has ever been identified. At the hearing, neither of the parties identified it either. It is therefore unclear what, if any, purpose was served by this curiously worded Article. On its face, it is quite meaningless, absent any other indication regarding what principle is contemplated. Otherwise, such alleged principle is pure speculation. Accepting that the original contract is in Arabic and translations only were provided, sometimes with a number of slightly variable translations, imprecision was very much the order of the day on many fronts regarding the terms of the contract of employment.
Secondly, Clauses 2 and 3 of the contract provided respectively for the duration of the contract, initially for one year commencing on 16th June 2014, but thereafter renewable annually. Clause 4 provided for the termination of the contract in the following less than crystal clear terms:
In exceptions of the previous points [sic – Clauses] (2) & (3) it is permitted for either party to terminate this contract without declaring reasons for such act, during a period not exceeding (2) months, provided that the second party will be on duty during the two months’ notice, which will be computed to the service period.
Doing the best that one can in the circumstances and with the curious but regularly imprecise wording (again not said critically), the operative part of this Clause I take to provide for a requirement of two months’ notice for the termination of the contract. It is not completely clear what the last part of this Clause means precisely.
Clause 5 of the contract referred to the employee being subject to “the regulations for locally-engaged staff employed at Diplomatic Missions of the state of Kuwait ….” Therefore the Applicant’s employment was governed by the contract and the Articles in the Protocol referred to.
Clause 8-3 (the last provision in the contract itself) provided for “each employee [to be] responsible for his/her own superannuation welfare scheme.”
I need only note briefly the following further provisions of the Protocol referred to.
Article 28 of the Protocol (the relevant terms of this document were in the Agreed Tender Bundle) dealt with “general superannuation”. It is not relevant to the matters to be determined here. Article 29 provided, in very simple and direct terms the duties or responsibilities of employees, which included the requirement that an employee “must … be well behaved in dealing with his supervisors, colleagues and clients.” Article 30 was something of the reverse side of Article 29 in that it provided equally direct prohibitions for employees. There were six prohibitions, which I need not detail.
Article 31 provided for “disciplinary penalties that the local employees may be subject to are”, as follows:
· written notice
· salary deduction of not more than half of the salary per month and annual deduction not exceeding two monthly salaries.
· termination without notice or prior warning in the following cases:
•if the employee commits such a violation that his presence at the mission will endanger its interest.
•if, as a result of the employee's shortcoming, valuable items are lost or damaged and insures material or moral loss to the Mission.
•if the employee does not abide by maintaining the Mission's interests, documents, and secrets.
•if the employee behaves immorally or in a way that harms the Mission's reputation.
•if the employee recurs to a violation for which he was repeatedly warned, or money was deducted from his/her salary because of it more than once.
•if the employee refuses to execute the work-related instructions issued to him/her from the Head of Mission or his/her section heads.
Article 33 provided for the circumstances of the termination of employment. Of the seven matters noted in this Article, the only detail of it that is relevant to the current proceeding is the following:
Termination of the employee’s contract without stating reasons. This will be after securing the Ministry’s approval and providing a notice period of not less than two months unless otherwise stipulated.
The Article 37 Issue
Article 37 is relevantly in the following terms. For current purposes it really does not matter which translation is used because the second, and most relevant, paragraph of this Article is in essentially the same terms in both translations. Set out here for convenience is the first translation that appears in the Agreed Tender Bundle:
Article 37
Local staff performing services duties (servants) and their duties are in accordance with article (4) of this protocol shall not have end of service reward or periodic or encouragement bonuses, and their salaries shall be considered fixed and the increase shall be at the discretion of the Ministry, and the local employee other than the categories stipulated in the preceding paragraph shall not be entitled to claim any remuneration for the duration of the trial period which was unsuccessful.
For the local employee in cases other than the previous paragraph and in article (28) of this protocol at the end of his/her service shall have the right to the end of service half a month’s salary for each year of his first five years of service and then one month’s salary for each year of his net year of service so that the total reward shall not exceed two year’s salary – the calculation of the end of service reward shall take into account the following:
A. The end of service reward is calculated on the basis of the salary earned by the employee at the end of his/her service after the exclusion of the allowances and the years he/she has been included in the superannuation system, and in this case the calculation for the end of service will be for the last salary he/she received before his participation in the superannuation fund.
B. The end of service reward shall be reduced by 10% in case of resignation without adherence to the period specified in the contract with that employee or in accordance with that provisions of the clause 2 or clause 5 of Article 33.
C. The end of service reward shall be doubled in case of death of the employee during the performance of the work, this shall be estimated by the committee (panel) approved by the representative Mission.
D. In case of termination of the employment of the local employee by dismissal in accordance with the provisions of Article 30 of this protocol, he may be deprived of not less than 15% and shall not exceed 50% of the value of the end of service reward, the assessment shall be made by the Ministry which may decide to pay the reward in full.
In all cases, the end of service reward shall not be paid except with the prior approval of the Ministry.
In the light of the principles of construction set out earlier, notably the High Court’s comments in Byrne v Kendle and the other authorities cited, the relevant part of the second paragraph of Article 37, properly punctuated to give the most logically intelligible and practical understanding, viewed objectively, would read as follows (emphasis added):
For the local employee in cases other than in the previous paragraph and in article (28) of this protocol, at the end of his/her service shall have the right to the end of service, half a month’s salary for each year of his first five years of service …
It should be noted in particular that in the Respondent’s closing submissions, at par.8, it was conceded that it had made an error in not paying superannuation during the course of the Applicant’s employment which, it was said, had [now] been rectified by the lump sum payment.
This concession having been made, the only issue here is whether the lump sum payment actually took into account, as Article 37 provided, the relevant calculation for the end of the employment by reference to the years of service of the employee. Strictly speaking, this should be an arithmetical calculation only. Absent confirmation by both parties by 30th January 2022 that the payment of superannuation that has been made relevantly took into account the formula set out in Article 37, the relief sought by the Applicant should be granted.
In addition to these reasons, I prefer and accept the submissions of the Applicant in relation to the Article 37 issue.
The Clause 4 Issue
There is some overlap between this issue and the Article 32 issue regarding payment and suspension. In my view, this issue must properly be considered in the light of the following.
First, doing the best that can be done with the somewhat imprecise construction of Clause 4, viewed objectively, and in the light of the High Court authorities noted earlier in these reasons, together with the outline of principles from Lee J’s decision in Avenia, this Clause must mean that the parties intended that there be a minimum of two months’ notice in relation to the termination of the contract – by either party. Any other decision or interpretation would render the notice period of no utility or practical effect at all. Further, Article 33 of the Protocol also confirms that a period of 2 months’ notice is necessary, as well as the Ministry’s approval. “Internal consistency” between the terms of a contract, including terms that are incorporated such as the Protocol, will always be preferred.
Secondly, the Respondent also relies upon Article 31 of the Protocol in order, effectively to circumvent the operation and terms of Clause 4 of the contract. In my view, (a) the terms of the contract must take precedence over the terms of the Protocol, and (b) in the face of the Applicant’s denial (in writing and under oath) of any wrong-doing, it is impermissible to summarily dismiss an employee without (i) giving proper notice, (ii) conducting a proper investigation that must involve the Applicant rather than just the complainant and the local decision-maker, and (iii) an adequate hearing. Being called to a meeting without notice of its purpose, the presentation of a complaint with no time to seek legal advice, and allowing something in the order of approximately 1 hour between presenting an outline of the complaint and then pronouncing a “suspension”, fails at each stage of procedural fairness.
Further, Article 32 of the Protocol refers to the requirement of an investigation “in writing.” It seems clear that there was no compliance with this Article because there is no evidence of there ever having been an “investigation in writing.” Certainly there was nothing in writing that was put to the Applicant regarding any investigation prior to his 13th November 2018 meeting at which he was first confronted with the terms of a complaint by a disaffected student.
Accordingly, the terms of Clause 4 of the employment contract required that the Applicant be given two months’ notice of the proposed termination of his contract. This did not occur. The Respondent was therefore not entitled summarily to terminate the Applicant’s contract of employment, that is, without the two months’ notice stipulated in Clause 4.
The Suspension Issue
For the following reasons, in my view, it is clear that at the meeting on 13th November 2018, the Applicant was only suspended from his employment; his contract was not terminated on that date but only when the Ministry of Higher Education in Kuwait confirmed or ratified that termination, which was thereby effective on 10th January 2019. It follows from this finding that the Applicant should have been paid his salary for the period between 13th November 2018 and 10th January 2019. The reason for this conclusion, summarised, are as follows:
(a)Article 33 refers specifically to the requirement to obtain the Ministry’s approval, as well as to “providing a notice period of not less than two months unless otherwise stipulated”;
(b)Annexure WA-6 of Dr Alrefae’s Affidavit, affirmed 5th March 2021, refers specifically to the Applicant being “suspended from work starting from 14/11/2018”. This document, almost on its own, confirmed that the Applicant was suspended, and therefore his employment was not, at that time, terminated. Further, I need only note rather than set out in detail, the complete factual and legal difficulty (e.g. estoppel) of a party seeking to argue a position that is the complete opposite of what is plain on the face of its own documents;
(c)The correspondence between the parties, after the meeting on 13th November 2018, makes no sense if the Applicant had been terminated on that date. His inquiry to the Respondent about the status of his employment likewise confirmed that there remained some part of the “process” leading to termination to be completed;
(d)In the course of his oral evidence, Dr Alrefae confirmed that, as a formality, his decision to terminate the employment contract required the imprimatur (my term) from the Ministry of Higher Education in Kuwait to complete the process. Accepting his evidence that his decisions had always been accepted by the Ministry, as a matter of practice and legal possibility, it must follow that (even if highly improbable) there remained a possibility that the Ministry may not have given its sanction to the decision of the local Head of the Cultural Office;
(e)As noted earlier, properly construed, the terms of the contract required proper notice of at least two months before termination. Plainly, the construction proposed by the Respondent would effectively negative or negate the terms of its own contract; and
(f)Otherwise, I accept and adopt the Applicant’s submissions on this and all other issues. Because the rules of evidence do not apply to claims of this kind, pursuant to the express terms of s.584 of the FW Act, I also accept, respectfully, the reasons and conclusion of the FWC on this particular matter of the date of termination of the contract of employment; as noted earlier in these reasons, the decision of the FWC is annexed to the Applicant’s February Affidavit.
For the reason given, subject to any other agreement in writing between the parties (or as slightly revised in accordance with these reasons), the Applicant has readily established his grounds of relief. The Orders and relief sought by the Applicant should be granted. There should be no Order as to costs.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 14 December 2021
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