Sultan v Consulate General of the Republic of Iraq, Sydney
[2021] FCCA 498
•19 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sultan v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 498
File number(s): SYG 1753 of 2019 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 19 March 2021 Catchwords: INDUSTRIAL LAW – general protections – applicant an Australian permanent resident employed as clerk by the consulate pursuant to contract for fixed term – the consulate informed the employee before term of contract ends that the employee’s contract will not be renewed – the consulate so informed the employee after the employee had been assigned from one division of the consulate to another and after an incident occurred between the employee and his superior – whether the employee exercised any workplace right – whether by notifying the employee that the consulate would not renew the employee’s contract of employment the consulate as the prospective employer refused to employ the prospective employee and therefore took adverse action against the prospective employee – whether the consulate decided not to renew the employee’s contract of employment for the reason claimed by the consulate, namely, because of the incident between the employee and his superior – the consulate failed to discharge the burden of showing it decided not to renew the employee’s contract of employment for the reason it claimed it did – matter to be listed to hear further submissions about whether it is open to the Court to consider whether particular matters identified in the reasons for judgment constitute the making of a complaint or enquiry and if so whether that was in the exercise of an ability to make a complaint or enquiry and also to determine whether it is open to the Court to consider other claims the employee made. Legislation: Fair Work Act 2009 (Cth) ss 340(1), 341(1)(c)(ii), 342, 357, 360, 361(1) Cases cited: Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138
Kassem & Ors v Minister for Immigration & Anor (No.2) [2020] FCCA 1834
Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Stephens v Australian Postal Corporation [2014] FCA 732
Visscher v The Honourable President Justice Giudice [2009] HCA 34
Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499
Number of paragraphs: 88 Date of last submission/s: 15 September 2020 Date of hearing: 1, 2, 3, 4 and 7 September 2020 Place: Sydney The Applicant: Appeared in person Counsel for the Respondent: Mr J Fernon SC Solicitor for the Respondent: Macpherson Kelley ORDERS
SYG 1753 of 2019 BETWEEN: JALAL SULTAN
Applicant
AND: CONSULATE GENERAL OF THE REPUBLIC OF IRAQ, SYDNEY
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
19 MARCH 2021
THE COURT ORDERS THAT:
1.The name of the respondent recorded in the application be amended to “Consulate General of the Republic of Iraq, Sydney”, and the respondent’s name on this page, shall be “Consulate General of the Republic of Iraq, Sydney”.
2.The matter be listed for directions at 9.30 am on 26 March 2021 for the purpose of fixing at that directions hearing a time and day to hear submissions on the following questions:
(a)whether it is open to the Court to consider on the findings it has made whether the applicant made any complaint or enquiry in relation to his employment and, if so, whether the applicant made such complaint or enquiry in the exercise of an ability he had to make such complaint or enquiry and thus exercised a workplace right within the meaning of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (FW Act);
(b)if (a) is answered in the affirmative, whether the applicant did make any complaint or enquiry in relation to his employment and, if so, whether the applicant made such complaint or enquiry in the exercise of an ability he had to make such complaint or enquiry, and thus exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act; and
(c)whether it is open to the Court to consider the applicant’s claims that the respondent:
(i)failed to provide the applicant payslips;
(ii)failed to pay the applicant superannuation;
(iii)required the applicant to take annual and sick leave during the course of the year without allowing these benefits to accrue;
(iv)did not pay the applicant’s annual leave that had accrued; and
(v)required the applicant to work overtime without pay; and
(d)if (c) is answered in the affirmative, what directions, if any should be made to be in a position to hear and determine any one or more of the claims referred to in (a)-(c).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, Mr Sultan, applies for relief under the Fair Work Act 2009 (Cth) (FW Act) against the Consulate General of the Republic of Iraq, Sydney (Consulate).[1] Mr Sultan, who is not legally represented, claims the Consulate contravened s 340(1) of the FW Act by dismissing him from his employment because he had made a complaint or enquiry in relation to his employment.
[1] In his application and Form 2 Mr Sultan identifies the Consulate as “Consulate General of the Republic of Iraq”. I assume in these reasons that Mr Sultan intends to name the Consulate as “Consulate General of the Republic of Iraq, Sydney”. As I state at the end of these reasons, I propose to order that the name of the Consulate stated in the application be amended to read “Consulate General of the Republic of Iraq, Sydney”.
The Consulate accepts it employed Mr Sultan as a clerk since 2011, and that his employment with the Consulate ended on 31 December 2018; but the Consulate denies Mr Sultan made any complaints or enquiries of which it was aware in relation to his employment. The Consulate also denies it dismissed Mr Sultan from his employment. The Consulate claims Mr Sultan’s employment ended by effluxion of time in accordance with the terms of a contract of employment Mr Sultan signed on 1 January 2018 after the Consulate, by letter dated 30 November 2018, informed Mr Sultan that his contract of employment would not be renewed beyond 31 December 2018. Further, the Consulate accepts that in the course of his employment Mr Sultan had entered into contracts of employment with the Consulate, each for a fixed term, which the Consulate regularly renewed. The Consulate claims, however, that, acting through its Acting Consul General, Mr Witwit, the Consulate decided not to renew Mr Sultan’s employment after 31 December 2018 because of an incident the Consulate claims occurred on 4 September 2018 involving Mr Sultan and his supervisor, Ms Taha.
The principal questions I consider in these reasons for judgment, therefore, are whether Mr Sultan made the complaints or enquiries Mr Sultan claims he made in relation to his employment; if he did, whether by not renewing his contract of employment the Consulate took “adverse action” against Mr Sultan within the meaning of s 342 of the FW Act; and, if it did, whether the Consulate decided not to renew Mr Sultan’s contract of employment “because” Mr Sultan had made complaints or enquiries in relation to his employment. I will also address at the end of these reasons whether Mr Sultan arguably makes any additional claims under the FW Act. The Consulate submits the only claim Mr Sultan has made, and the only claim the Consulate therefore came prepared to defend, is Mr Sultan’s claim based on the circumstances in which his employment with the Consulate ended.[2]
[2] For the reasons I give in Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499, at [118]-[124], I am satisfied Mr Sultan and the Consulate have conducted the proceeding on the correct assumption that the Consulate is a separate legal person against whom it was open to Mr Sultan to bring this proceeding, and that the FW Act applies to the Consulate.
COURSE OF HEARING
I heard Mr Sultan’s application for relief together with applications for relief under the FW Act two other former employees of the Consulate separately commenced against the Consulate. Those former employees are Ms Yalda and Mr Al-Attar, each of whom is also not legally represented. Like Mr Sultan, each of Ms Yalda and Mr Al-Attar had been employed on fixed term contracts of employment that were due to expire on 31 December 2018, and the Consulate decided not to renew their contracts. Ms Yalda and Mr Al-Attar also claim that by deciding not to renew their contracts of employment the Consulate contravened s 340(1) of the FW Act.
I heard the three proceedings together after I made orders in each proceeding to the effect that evidence in each proceeding be evidence in all proceedings.[3] Mr Sultan, Ms Yalda, and Mr Al-Attar read their affidavits and were cross-examined by Mr Fernon SC, who appeared on behalf of the Consulate. The Consulate then led its evidence, which largely consisted of affidavits made by Mr Witwit; and Mr Sultan, Ms Yalda, and Mr Al-Attar each cross-examined Mr Witwit on matters that concerned each of their claims. Mr Sultan, Ms Yalda, and Mr Al-Attar, made oral submissions in their own cases. Mr Fernon SC then made submissions on behalf of the Consulate in relation to the claims made by each of Mr Sultan, Ms Yalda, and Mr Al-Attar.
[3] I made these orders on 14 August 2020.
APPROACH
I will first set out the evidence in narrative form, and in the course of doing so make findings of fact. In making my findings I have attempted to apply the principles I have considered elsewhere;[4] and I have considered the evidence without taking into account the findings I have made in the reasons for judgment I propose to publish in relation to Ms Yalda’s and Mr Al-Attar’s claims. Unless the context suggests otherwise, my stating without qualification a fact is to be taken to be a finding of the fact I state. I will then consider, on the basis of the findings I make, whether Mr Sultan made any complaints or enquiries in relation to his employment; if so, whether the Consulate has taken adverse action against Mr Sultan by not renewing his contract of employment; and, if so, whether the Consulate did so in contravention of s 340(1) of the FW Act. I will then consider whether there are other arguable issues that arise in the proceeding that may need to be determined.
[4] See Kassem & Ors v Minister for Immigration & Anor (No.2) [2020] FCCA 1834, at [29]-[33], [37], [38]; and Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499, at [9]-[31]
EVIDENCE AND FINDINGS
Mr Sultan commenced his employment with the Consulate in Sydney in about October 2011 as a clerk.[5] The Consulate classified Mr Sultan as a “locally engaged staff” (Local Employee), namely, a person who is either an Australian citizen or a permanent resident of Australia.[6]
[5] Affidavit A M B Witwit 12.06.2020, [23]
[6] Affidavit A M B Witwit 12.06.2020, [18], [23]
Consulate’s practice in engaging Local Employees
The Consulate engaged each Local Employee for a fixed term on the terms set out in a written contract. Within one month before a contract of a Local Employee was due to expire, the Consulate’s administration manager provided or arranged to provide a draft contract of employment to the Local Employee. If the Local Employee wished to renew his or her current contract of employment, he or she would sign the draft contract.[7] The contract as signed by the Local Employee was then provided to the “Head of Mission”, being the Consul General, or Deputy Consul General, or such other person who acted as Consul General.[8] The Head of Mission then considered and had the ultimate say in determining whether to renew the contract with the Local Employee.[9]
[7] Affidavit A M B Witwit 12.06.2020, [19], [20]
[8] See affidavit A M B Witwit 12.06.2020, [18], where Mr Witwit says that “Consulates” are referred to as “Missions”.
[9] Affidavit A M B Witwit 12.06.2020, [21]
According to Mr Witwit,[10] whose evidence on this point I accept, it was not the Consulate’s practice to renew automatically a Local Employee’s employment contract. The contracts of Local Employees who had performance issues, for example, would be renewed, if at all, only after the employee had a meeting with the Consul General, or Deputy Consul General, or the administration manager. Additionally, when considering whether to renew a Local Employee’s contract of employment, the Head of Mission “was also required to consider any limitations placed on the Consulate by the Ministry, for example, budget constraints and regulations”. After receiving feedback about the relevant Local Employee’s performance from his or her supervisor, the Head of Mission “then made the decision . . . either to renew or not to renew the employment contract”. The Head of Mission would signify the Consulate’s decision to renew the Local Employee’s contract of employment by signing the contract.
[10] Affidavit A M B Witwit 12.06.2020, [21], [22]
The general practice of renewing employment contracts with Local Employees, as described by Mr Witwit, was generally followed in relation to Mr Sultan. For the most part the Consulate employed Mr Sultan on contracts that had been issued yearly.[11] Mr Sultan was employed on a twelve month contract commencing on 2 January 2015; and in 2016 the Consulate employed Mr Sultan on a twelve month contract that commenced on 1 May 2016. In May 2017 the Consulate renewed Mr Sultan’s contract for a term of eight months and, on 2 January 2018, it was renewed until 31 December 2018. Mr Witwit was Mr Sultan’s supervisor when Mr Sultan’s contract was renewed in May 2017. Mr Witwit recalls that in his feedback about Mr Sultan’s performance, Mr Witwit said “good performance”.[12]
[11] Affidavit A M B Witwit 12.06.2020, [23]
[12] Affidavit A M B Witwit 12.06.2020, [23]-[29]
April 2018 – Mr Sultan assigned to power of attorney division of Consulate
Since around April 2016 Mr Sultan had been employed within the Consulate’s visa and passports division. Mr Sultan had previously worked in the power of attorney division and was experienced in that role. According to Mr Witwit,[13] in around April 2018 the Consulate’s operations were restructured because an employee who worked within the Consulate’s power of attorney division had resigned, and there was a need to deploy a staff member to that position. The Head of Mission, Ms Alesi, informed Mr Witwit she had decided Mr Sultan would be deployed to provide clerical services in the power of attorney division, and Ms Alesi asked Mr Witwit to inform Mr Sultan of her decision. In evidence given under cross-examination, Mr Sultan accepted he had been assigned to the power of attorney division of the Consulate, although he did not accept this was part of any restructuring. I find that in around April 2018 Ms Alesi decided to assign Mr Sultan to the power of attorney division of the Consulate.
[13] Affidavit A M B Witwit 12.06.2020, [30]
6 May 2018 – Mr Sultan sends email to Head of Mission claiming unfairness
Mr Witwit met with Mr Sultan on 20 April 2018 in the presence of two other persons, and informed him of Ms Alesi’s decision to move him to the power of attorney division of the Consulate.[14] Mr Sultan told Mr Witwit he believed Ms Alesi’s decision was unfair.[15]
[14] Affidavit A M B Witwit 12.06.2020, [31], [32]; affidavit of J Sultan 30.01.2020, exhibit 2 (CB29)
[15] Affidavit A M B Witwit 12.06.2020, [33]
On 6 May 2018 Mr Sultan sent the following email to Ms Alesi (errors in original):[16]
I am writing to raise my concern regarding the meeting with Mr Ali Witwit in the presence of Mr Muhanad Mahal and Mr Ali Al Attar which took place in the Consulate meeting room on Friday the 20th April 2018, around 2.30pm.
I was informed verbally by Mr Witwit that you decided to transfer me from the Visa and Passport Section in which I have been working since April 2016 to Power of Attorney section, which was to commence the following Monday 23rd April 2018.
I’m sure you would agree that I carry out the inherent duties of my work with integrity and pride and always strive to do my best as evident by verbal praises from yourself.
I respect your position to make decisions within the Consular Office however I expect that I would have been given due respect and not to be told about sudden change in my role without prior discussions.
Following this meeting on 20th April 2018, I experience chest pain, difficulty sleeping and anxiety.
I believe this decision was unfair and feel like I am being disadvantaged.
Please consider this letter as a formal request for you to review and reconsider this decision.
Thank you for you understanding and waiting for your prompt response.
[16] Affidavit of J Sultan 30.01.2020, exhibit 2 (CB29)
7 May 2018 – Mr Witwit and Ms Alesi meet with Mr Sultan
On about 7 May 2018 Mr Witwit and Ms Alesi met with Mr Sultan. At the meeting Mr Sultan said he was being treated unfairly, and he asked whether Ms Alesi could reconsider her decision. Mr Witwit said Mr Sultan was not being treated unfairly because the Consulate had not been able to fill the vacant position in the power of attorney division, and Mr Sultan was required to work in that division.[17]
[17] Affidavit A M B Witwit 12.06.2020, [35]; Affidavit of J Sultan 30.01.2020, [4H]
When cross-examining Mr Witwit, Mr Sultan put to him that at the meeting Ms Alesi referred to Mr Sultan’s working in the power of attorney division as “job rotating”, and that Mr Sultan had told Ms Alesi that his being assigned to the power of attorney division was not “job rotating”. Mr Witwit said he did not recall that words to that effect were spoken. Mr Witwit was then asked what he recalled was discussed at the meeting, and Mr Witwit repeated the substance of what he deposed in his affidavit.[18] Mr Sultan also put other matters to Mr Witwit that Mr Witwit either did not recall or did not accept. Mr Sultan, however, did not suggest to Mr Witwit that what Mr Witwit said in his affidavit occurred at the meeting did not occur.
[18] 02.09.2020 T146.1-T147.45
I find that on 7 May 2018 Mr Sultan met with Ms Alesi and Mr Witwit; and that at the meeting Mr Sultan said he was being treated unfairly, and he asked whether Ms Alesi could reconsider her decision. I also find that at the meeting Mr Witwit told Mr Sultan he was not being treated unfairly because the Consulate had not been able to fill the vacant position in the power of attorney division, and Mr Sultan was required to work in that division.
Evidence of Mr Sultan’s attitude to being reassigned duties
Mr Sultan was cross-examined about his attitude to having been assigned to the power of attorney division:[19]
MR FERNON: . . . You did not like working in the department that you had been working in since about May of that year?‑‑‑I worked in that department for more than five years. I had power of attorney and I had been transferred to the visa and passport section, under direct supervision of Mr Witwit, and they asked me to go back to that area. I feel this look like a demotion, but I am doing my job. I am doing my job, and my direct supervisor, she is – she rely on me and she liked my work.
But you resented being transferred back to the power of attorney?‑‑‑In the beginning, I don’t like it. I have transferred by the previous Deputy Consul, and she promised me that when she – she will put me back to the passport section, but the day she left, she said, “Jalal, I promise you”. I said to her, “Don’t you worry. I am fine there”. And that happened in front of Mr Witwit.
Well, you understand, don’t you, that you have had an opportunity to put on an affidavit in reply to all of the evidence that is in Mr Witwit’s affidavit?‑‑‑I read – to Mr Witwit.
Yes, and you have had an opportunity to reply to that, to say what your version of events is?‑‑‑When I put Mr Witwit to the witness box.
All right. Well, look, what I would suggest to you is that you resented being – working in the power of attorney section, correct?‑‑‑I don’t know the meaning of “resented”.
You objected to working in the power of attorney section, didn’t you?‑‑‑I just answered your question earlier. I said in the beginning, I don’t like to go, but when the time comes – when Ms Anwar asked me, “Jalal, I am going. I am leaving the country. I did not forget my promise. I am going to reinstate you”, I said to her, “Don’t you worry. I am fine”.
[19] 01.09.2020 T39.10-T39.40
There are two things to note about this evidence. The first relates to Mr Sultan’s response to the suggestion that he had an opportunity to put on an affidavit to respond to Mr Witwit’s affidavit. Mr Sultan said he proposed to do that when Mr Witwit would be in the witness box. This indicates Mr Sultan may not have understood what he was required to do when I directed that he file affidavits in reply to affidavits the Consulate may file.[20] For that reason I am not prepared to draw any adverse inferences from Mr Sultan’s not having filed any affidavit in reply to Mr Witwit’s affidavit. The second matter relates to the substance of Mr Sultan’s evidence. Given the difficulties I identify later in these reasons with the documents and evidence on which the Consulate relies, I find Mr Sultan’s evidence accurately reflects his attitude to having been assigned to the power of attorney division of the Consulate. I therefore find that Mr Sultan considered his being reassigned to the power of attorney department was a demotion; he was initially unhappy about the Consulate’s decision to assign him to that division, but he believed that he would be reinstated to the position he held before he had been assigned to the power of attorney division.
[20] I made those orders on 5 May 2020.
Incident(s) of 4 or 5 September 2018
Mr Witwit deposes that on 4 September 2018 he heard shouting coming from one of the meeting rooms in the Consulate. Mr Witwit rushed into the room and saw Mr Sultan shouting at Ms Taha. Although he did not hear all of the words Mr Sultan spoke, Mr Witwit did hear Mr Sultan shout in Arabic “I will crush your skull by my shoes”. These are said to be, and I find they are, highly offensive words, “particularly when used in the context of speaking to one’s work supervisor”.[21] Mr Witwit also heard Mr Sultan shout words to the effect that Ms Taha was not qualified to perform her job, and that she did not have any knowledge of her job. Mr Witwit says he interjected and requested that Mr Sultan leave the room and immediately return to his office.[22]
[21] Affidavit A M B Witwit 12.06.2020, [38]
[22] Affidavit A M B Witwit 12.06.2020, [38]
There is other evidence relevant to whether an incident to the effect deposed to by Mr Witwit occurred on 4 September 2018.
The Enquiry
First, there is the “Enquiry” Mr Witwit says was “issued” to Mr Sultan on 6 September 2018 (Enquiry). [23] That is a document which contains the following text:
Enquiry
Local Clerk/Jalal Musaed Sultan
In view of what happened on 05.09.2018 morning, we are directing the questions below to you. State the reasons.
Question: Why did you not carry out the directions?
Question: why did you fail to carry out the tasks entrusted to you and why did you react with continuous resentment and dissatisfaction?
Question: Why did you exceed your limits and use improper words during the official working hours and during the verbal arguments with the Senior Director Layla Mohammed Taha and your disregard of the directions issued by the Head of the Mission?
[23] Affidavit A M B Witwit 12.06.2020, [40]; exhibit AW-1, page 39
Mr Sultan’s evidence given in cross-examination
Second, there is the evidence Mr Sultan gave under cross-examination:[24]
[24] 01.09.2020 T35.45-T38.10
MR FERNON: On 4 September 2018, there was a confrontation between yourself and Ms Taha in the workplace, wasn’t there? And during that confrontation, you were shouting at Ms Taha, weren’t you?‑‑‑She shouted to me first.
And you were shouting to her?‑‑‑I just return back to what she said to me.
I’m sorry?‑‑‑She shouted to me, and I answered.
And you shouted at her?‑‑‑That’s correct.
And you used offensive language to her?‑‑‑I did not.
You deny that, do you?‑‑‑No.
Just so that we are clear, do you deny that you used offensive language?‑‑‑I did not use offensive language.
You used language to the effect of saying to Ms Taha that you would crush her skull with your shoes?‑‑‑I’m surprised this one appeared on the – it did not appear on the letter of Ms Taha. It appeared on the affidavit of Mr Witwit. The lady, she did not say that in her complaint letter. How come it appears on the affidavit of Mr Witwit?
What I am saying to you – what I am asking you to agree with me is that during the confrontation with Ms Taha, you said to words to that effect to Ms Taha. That is so, isn’t it?‑‑‑I did not.
You deny that, do you?‑‑‑Yes.
Saying something like that phrase to Ms Taha would be an offensive and demeaning phrase in your culture, wouldn’t it?‑‑‑If I said that. And, by the way, Ms Taha is – it is only me and her in the room. She came and closed the door. Who is the one who said that? If Ms Taha, she is the one who said that, why did she not mention that in her letter? She came to my room, to my office – I will come to that later – and started pointing her index finger to me, alone, before the start of the working hours – before 9 o’clock. She closed the door and she talked. Nobody in the room. No one. Who heard that what is she said and why she didn’t mention it in her letter in Arabic or in English?
What I am suggesting to you, Mr Sultan, is that a phrase like, “I will crush your skull by my shoes” is an offensive and demeaning phrase in your culture. Do you agree with that, or don’t you?‑‑‑I didn’t say that to a colleague – a male colleague in my office. I have, probably, differences with somebody. I haven’t said that one to a man, how come I would say that to a woman?
HIS HONOUR: Mr Sultan, the only question – and it might be of marginal reference [sic] – is, is that a well-known phrase that is used as a term of abuse in Iraq?‑‑‑They are using it, yes.
And is that offensive?‑‑‑It is offensive.
All right?‑‑‑Yes. But I did not – I did not say that.
Yes, I understand you are denying it. I understand that?‑‑‑I did not say that. I know, because I am senior to her, I cannot say that. Senior in age, I mean, not senior in position.
. . . .
MR FERNON: . . . Now, during the confrontation with Ms Taha ‑ ‑ ‑?‑‑‑Yes?
‑ ‑ ‑ Mr Witwit came into the room, didn’t he?‑‑‑In Mr Witwit’s affidavit, what did he say? Where are we?
HIS HONOUR: Mr Sultan, just to be very clear, you have been asked a question about what you remember. If things are being put to you now which are inconsistent with an affidavit, that is something you can say to me when you address me, and it might be something you want to ask Mr Witwit about. But at the moment, just imagine you are here as a witness, not as a party, giving truthful information in response to questions. So just think of it that way. Submissions and all those sort of things – keep them in mind, and you can make them to me or ask Mr Witwit questions, all right? So the simple question was: did Mr Witwit come into the room at the time of your confrontation? What is your answer?‑‑‑Mr Witwit arrived to the room after Ms Layla left.
All right.
. . . .
MR FERNON: What I wish to understand from you, Mr Sultan, is whether you agree that during this confrontation, Mr Witwit came into the room?‑‑‑Not during. After.
All right. Well, I suggest to you that it was during the confrontation that Mr Witwit came into the room?‑‑‑Which room?
The room in which you were having the confrontation with Ms Taha?‑‑‑Can you please mention which room?
HIS HONOUR: Well, sorry, no, Mr Sultan. What is being put to you formally is Mr Witwit came into the room during the confrontation. Do you agree with that, or not?‑‑‑Not during. He came after Ms Layla. She left.
All right?‑‑‑And I was standing near the door.
MR FERNON: What I would suggest to you is that Mr Witwit came into the room during the confrontation with Ms Taha, and he requested that you leave the room and immediately return to your office?‑‑‑That is incorrect.
The Complaint
Third, there is the contents of the written complaint Mr Witwit says the Consulate received from Ms Taha made on 5 September 2018 (Complaint).[25] The text of the Complaint is as follows (errors in original):
[25] Affidavit A M B Witwit 12.06.2020, [39]; exhibit AW-1, page 36
Subject: Complaint
I would like to inform you that I am unable to deal with the local employee Jalal Musaed Sultan because of his repeated violations and complete disregard of the norms of normal and occupational behaviour in dealing with me. He continued to use abusive language in addressing me before all the employees. On 04.09.2018, at noon, I asked him to receive the applications of the clients who arrived at the Consulate after the end of the official time for receiving the transactions because they were coming from the State of Victoria. He showed resentment and anger and directed obscene and improper words to me. He yelled at me and said that I have to print the “Powers of Attorney” by myself. I disregarded his abuse out of my desire for better serving the interests of the clients and completing their transactions. In the same day, I opted for decently blaming him in the morning of the following day for his indecent words. He verbally assaulted me using bawdy and disgusting words exceeding all limits of respect, propriety and occupational behaviour in a loud voice for and before all the Consulate employees to hear and see.
That was not the first time he exceeds his limits. He used to resort to such resentment and anger whenever asked to copy the same documents. It is worthy of mention that such a case happens once a week and for exceptional cases when aged or disabled persons of special needs are involved because they cannot copy the required documents outside the Consulate. He insisted to exceed his limits and asked me to go and copy the documents by myself if I sympathise with their humanitarian cases. He continued to show resentment and anger over printing and adding new paragraphs for the “Special Powers of Attorney” where the client wants to add or write certain words or phrases that suit his special circumstances a And case. He used to answer me back by (saying that he is not the second best to print for them all what they want and according to their whims and that it is better for them to come over to the Consulate with their Powers of Attorney already printed).
We all know that the exceptional situation of this Consulate as it is situated in the heart of the City away from the Iraqi concentrations and accordingly, it is difficult to find a bookshop ready to print in Arabic the forms of the powers of proxy which is accredited by us.
Kindly requested to peruse and consider
With appreciation.
Signed by Layla Mohammed Taha, the Director General
The Complaint claims two incidents or series of incidents occurred, one at noon on 4 September 2018, and the other in the morning of 5 September 2018. According to the Complaint, at noon on 4 September 2018 Ms Taha asked Mr Sultan to receive the application of the clients who arrived at the Consulate after the end of the official time for receiving transactions because they were coming from Victoria; Mr Sultan showed resentment and anger, and directed obscene language to Ms Taha; Mr Sultan yelled to Ms Taha that she had to print the powers of attorney herself. Ms Taha said she “disregarded” Mr Sultan’s “abuse out of my desire for better serving the interests of the clients and completing their transactions”. Ms Taha said that she “opted for decently blaming him in the morning of the following day for his indecent words”. Also according to the Complaint, the second incident occurred in the morning of 5 September 2018. The Complaint stated that Mr Sultan “verbally assaulted” Ms Taha “using bawdy and disgusting words exceeding all limits of respect, propriety and occupational behaviour in a loud voice for and before all the Consulate employees to hear and see”.
Mr Sultan does not claim the Complaint is not what it purports to be, or what Mr Witwit claims it to be. Under cross-examination, however, Mr Sultan said he first became aware of the Complaint when he was served with the court book;[26] and Mr Sultan’s cross-examination of Mr Witwit was based on the assumption that the contents of the Complaint were not true. In any event, I am not bound to accept the Complaint is what Mr Witwit claims it to be; and I will consider later whether the Complaint is what Mr Witwit claims it to be.
[26] 01.09.2020 T35.10
Memoranda to and from Ministry
Fourth, there is what purports to be a memorandum dated either 3 or 9 November 2018 from the Consulate to the Ministry,[27] and what purports to be a memorandum from the Ministry to the Consulate dated 12 or 13 November 2018.[28] For reasons I give later, I do not accept that these two documents are what they purport to be; but I will also assess Mr Witwit’s evidence on the assumption the memoranda are what they purport to be.
[27] Exhibit B. As I set out later, the English translation of the memorandum, although not, apparently, the Arabic version, contains two dates.
[28] Exhibit C
Evidence Mr Witwit gave at hearing
Fifth, there is the evidence Mr Witwit gave to a number of questions I asked about the Enquiry and the Complaint. In relation to the Enquiry Mr Witwit gave the following evidence:
(a)The “directions” to which the first question in the Enquiry was intended to refer are the directions recorded in the fifth line of the Complaint: “I asked him to receive the applications of the clients who arrive at the Consulate after the end of the official time”.[29]
(b)The reference in the Enquiry to “Head of the Mission” is a reference to Mr Witwit:[30]
HIS HONOUR: . . . . If you go to page 171, right at the end, it says, “Why did you exceed your limits and use improper words during the official working hours and during the verbal arguments with a senior director? And your disregard on the directions issued by the Head of the Mission.” Who is the Head of the Mission? What’s that a reference to?‑‑‑The Head of the Mission in that case was me.
All right. And what direction did you give that was not followed?‑‑‑The direction that was – which were put in her claim which is – which were that if we have any client that come back – arrive to the Consulate from another state – even if he was later we have to deal with his request because he is from outside the New South Wales. Because we usually serve some of the Iraqi community from outside the New South Wales – from Victoria, from Western Australia. So, those was the regular directors [sic: directions].
[29] 02.09.2020 T189.35
[30] 02.09.2020 T190.15
In relation to the Complaint, Mr Witwit gave the following evidence:
HIS HONOUR: . . . Can you just go to the complaint if you wouldn’t mind? It’s at page 168?‑‑‑Yes.
There’s a reference there to repeated violations on line 2. Did you make an inquiry what was meant by repeated violations or not?‑‑‑Yes. It was in the second question, “Why did you fail to carry out” on the page 171.
Yes. So, what tasks would that be a reference to, do you know what?‑‑‑The tasks were the what happened the day before.
Just that day?‑‑‑For those clients that arrived from Melbourne.
All right. All right. And then if you go to the second paragraph of the letter at 168. The complaint is made that the case happened once a week – that such cases happened once a week, which indicates there are more – that it’s a regular thing that Mr Sultan does. Is that something you made inquiries about? Or do you understand what was intended by that?‑‑‑At that point I have no idea about this actions from Mr Sultan because it was between him and his supervisor at that time.
. . . .
HIS HONOUR: But you don’t say anything about it in your complaint [sic: Enquiry], you only refer to one incident as I understand as what you intended to do with that document.
Is that right?‑‑‑Because these incidents happen before and there was complaint or mention to it, but the inquiry was about the recent one.
Yes. I have no further questions?‑‑‑Thank you, your Honour.
Assessment of the evidence
I do not accept the evidence Mr Witwit gives in his affidavit of the incident he says occurred on 4 September 2018.
(a)The Enquiry does not refer to any incident on 4 September 2018; it refers to “what happened on 05.09.2018 morning”. Had Mr Witwit observed what he says he observed on 4 September 2018, it is likely he would have referred to it in the Enquiry.
(b)The text of the Enquiry is not the type of document it is reasonable to expect would have been issued had the events Mr Witwit says occurred did in fact occur. Had a confrontation to the effect Mr Witwit says occurred, it is reasonable to expect the Enquiry would have referred to the incident with some specificity. That is particularly so had Mr Sultan said the highly offensive words: “I will crush your skull by my shoes”. Instead, the Enquiry refers to Mr Sultan having used “improper words during the official working hours and during the verbal arguments”, without identifying the words that were said to have been “improper”.
(c)The Enquiry refers to matters that are not the subject of what Mr Witwit says he observed on 4 September 2018. The Enquiry refers to Mr Sultan not carrying out “the directions”; Mr Sultan’s failing to “carry out the tasks entrusted to” him; and to Mr Sultan disregarding “directions issued by the Head of the Mission”. Mr Witwit’s account of what he says occurred on 4 September 2018, however, does not refer to any directions having been given to Mr Sultan which he had disregarded, including any direction Mr Witwit had given him, or any directions Mr Witwit had issued generally.
(d)For reasons I set out later, I do not accept that the memorandum dated 3 or 9 November 2018 from the Consulate to the Ministry,[31] and the memorandum dated 12 or 13 November 2018 from the Ministry to the Consulate are what they purport to be.[32] Even if the memoranda are what they purport to be, however, when considered with the matters referred to in (a) – (c), and the matters I discuss below about the authenticity of the Complaint, the contents of the memoranda do not support Mr Witwit’s evidence of the incident; the memorandum dated 3 or 9 November 2018 goes no further than referring to “the behaviour of” Mr Sultan “towards his immediate supervisor at work” without identifying the behaviour.
(e)Mr Witwit’s evidence does not sit comfortably with the contents of the Complaint. The Complaint refers to two incidents - one at noon on 4 September 2018, and one in the morning of 5 September 2018 - whereas the Enquiry refers to “what happened on 05.09.2018 morning”. Further, although the Complaint alleges Mr Sultan’s behaviour occurred “before all the Consulate employees to hear and see”, it does not suggest Mr Witwit observed or was in a position to have observed any part of the incidents alleged in the Complaint.
[31] Exhibit B
[32] Exhibit C
This last observation calls into question Mr Witwit’s evidence that he received the Complaint at the time he says he received it; and there are additional matters that call into question the authenticity of the Complaint. First, as I have already noted, the Complaint refers to two incidents, one at noon on 4 September 2018, and one in the morning of 5 September 2018; yet the Enquiry only refers to one incident, namely “what happened on 05.09.2018 morning”. Had Mr Witwit in truth received the Complaint, it is likely he would have referred to the two incidents. Further, in the evidence Mr Witwit gave in answer to my questions, the matter to which Mr Witwit intended the Enquiry to be directed was the incident the Complaint alleged occurred on 4 September 2018. It is not plausible that the Enquiry would have ignored as the subject of investigation the second of the two incidents alleged in the Complaint, which included an allegation that Mr Sultan “verbally assaulted” Ms Taha “using bawdy and disgusting words exceeding all limits of respect, propriety and occupational behaviour in a loud voice for and before all the Consulate employees to hear and see”.
Second, in addition to claiming misbehaviour in connection with two incidents, the Complaint makes more general allegations of misbehaviour by Mr Sultan.[33] The Complaint begins with the statement that Ms Taha “is unable to deal with the local employee Jalal Mused Sultan because of his repeated violations and complete disregard of the norms of normal and occupational behaviour in dealing with me”. The Complaint claims Mr Sultan “used to resort to such resentment and anger whenever asked to copy the same” documents; this happened “once a week and for exceptional cases when aged or disabled persons of special needs are involved because they cannot copy the required documents outside the Consulate”; Mr Sultan “insisted to exceed his limits and asked me to go and copy the documents by myself if I sympathise with their humanitarian cases” Mr Sultan “continued to show resentment and anger”; and he “used to answer me back”. There are a number of matters to note:
(a)The general complaints are not reflected in the Enquiry; and Mr Witwit does not refer to the general complaints in the evidence he gives (to which I refer below) about the reason for which he says he decided the Consulate should not renew Mr Sultan’s contract of employment. The Enquiry is directed to “what happened on 05.09.2018 morning”. In answer to my questions Mr Witwit confirmed he intended the Enquiry to be directed to the incident the Complaint identified occurred on 4 September 2018. It is reasonable to suppose, however, that, had Mr Witwit received the Complaint before he sent the Enquiry to Mr Sultan, he would also have intended to refer to the incident of 5 September 2018 and to the more general complaints in the Enquiry; and he would similarly have done so in his affidavit when identifying the reason for which he says he decided the Consulate should not renew Mr Sultan’s contract of employment.
(b)The general misbehaviour in which the Complaint alleges Mr Sultan engaged is serious, regular, directed to a superior, and occurred “before all the Consulate employees to hear and see”. If the allegations made in the Complaint were true, it is likely Mr Witwit would have become aware of that behaviour well before he received the Complaint, and he would have done something about it. Mr Witwit, however, accepted in cross-examination that before he gave the Enquiry to Mr Sultan, Mr Witwit had not been made aware of any complaint about Mr Sultan not carrying out directions; and he himself had not experienced Mr Sultan not carrying out directions.[34] In answer to a question I asked, Mr Witwit said he had not been made aware of the alleged misbehaviour identified in the Complaint before he received the Complaint.
(c)In his affidavit, Mr Witwit said that “[f]ollowing receipt of Ms Taha’s written complaint, I commenced an enquiry into Mr Sultan’s conduct”. In answer to my question Mr Witwit said that, after he received the Complaint, he made enquiries about the “repeated violations” alleged in the Complaint; but Mr Witwit said that the violations he decided to investigate were “what happened the day before”, and the enquiry consisted of asking the second question contained in the Enquiry.[35] I do not accept that evidence. It cannot reasonably be supposed that an employer would tolerate retaining an employee who has engaged in the egregious behaviour in which the Complaint alleges Mr Sultan engaged and thus would not have investigated a complaint from a senior employee whether such misbehaviour occurred, particularly where it was alleged the behaviour occurred in the presence of other employees.
(d)The Complaint lacks particularity. It does not, for example, specify the words it is alleged Mr Sultan used that were “bawdy and disgusting”.
(e)The Consulate has not called Ms Taha to give evidence about whether she is the author of the (Arabic version) of the Complaint, or, if she is, when, and the circumstances in which she created the Complaint.
[33] I have added the emphasis in the quoted text that follows.
[34] 02.09.2020 T163.10
[35] 02.09.2020 T190.30
In these circumstances I am not satisfied the Complaint is a document Mr Witwit received at the time he says he received it; I am not satisfied that the matter Mr Witwit intended to be the subject of the Enquiry - “what happened on 05.09.2018 morning” - related to any incident the Complaint identifies, or to any conduct the Complaint alleges Mr Sultan engaged in; and I am not satisfied the incidents described in the Complaint occurred, or that Mr Sultan engaged in any of the misconduct the Complaint alleges he engaged in.
The evidence Mr Sultan gave under cross-examination about the incident with Ms Taha, however, is consistent with the text of the Enquiry; and although Mr Sultan was somewhat argumentative and combative in the manner in which he gave his evidence, I am satisfied that Mr Sultan attempted to recount a genuine recollection of the incident. In light of these observations, and my not accepting Mr Witwit’s evidence, including his evidence that he had received the Complaint, I accept, save for one qualification (to which I refer at the end of this paragraph), Mr Sultan’s evidence of the incident between him and Ms Taha. I find, therefore, that an incident occurred between Mr Sultan and Ms Taha; and that incident consisted of Ms Taha shouting at Mr Sultan, and Mr Sultan shouting to Ms Taha in return. I also find that Mr Sultan may well have used words, or may have expressed words in a manner, that Ms Taha, being senior to Mr Sultan, found offensive and improper, and which merited, in her view, reporting the incident to Mr Witwit. Further, I am not satisfied Mr Sultan said to Ms Taha words to the effect of “I will crush your skull by my shoes”, or otherwise used “bawdy and disgusting words” as alleged in the Complaint. I find the incident occurred in a room in which Mr Sultan and Ms Taha alone were present; and that Mr Witwit came to Mr Sultan after Ms Taha had left the room. The qualification to my accepting Mr Sultan’s evidence relates to his having accepted in cross-examination that the incident occurred on 4 September 2018.[36] Given the Enquiry refers to “what happened on 05.09.2018 morning”, and the document was given to Mr Sultan on 6 September 2018, the Enquiry is a more reliable indicator of when the incident occurred. I therefore find the incident occurred in the morning of 5 September 2018.
[36] 01.09.2020 T35.40
September 2018 – Mr Witwit provides Mr Sultan with the Enquiry
According to Mr Witwit, “[f]ollowing receipt of Ms Taha’s written complaint” he “commenced an enquiry into Mr Sultan’s conduct and issued Mr Sultan with 3 questions to be answered as part of the enquiry”. The enquiry Mr Witwit says he commenced consisted of his issuing the Enquiry. I find that on 6 September 2018 Mr Witwit issued the Enquiry to Mr Sultan; but, given the findings I have made in relation to the Complaint, I do not accept he did so in response to the Complaint. I also find that Mr Witwit issued the Enquiry after he met with Ms Taha. The basis of that finding is Mr Witwit’s evidence given in cross-examination that he met with Ms Taha before he sent the Enquiry.[37] From that finding I further find Ms Taha met with Mr Witwit to talk to him about the incident that occurred between her and Mr Sultan in the morning of 5 September 2018. The evidence I have accepted does not, however, permit me to make any finding about what Ms Taha and Mr Witwit discussed.
[37] 02.09.2020 T161.40
6 September 2018 – Mr Sultan responds to Enquiry
At 7:45 pm on 6 September 2018 Mr Sultan sent to Mr Witwit the following email:[38]
I am writing in reference to your letter dated 6 September 2018.
In our discussion, I mentioned to you that I would be seeking legal advice before responding to your letter.
In your letter, you asked me to respond to three questions. It is my solicitor’s view that these are not questions, rather accusations.
In accordance with the Australian Law, it is my right to be provided with the relevant basis of your accusations. Once this evidence is provided, I would respond to your accusations accordingly.
If in your view the contents of this letter are not accusations, I am requesting the letter to be amended with the corresponding “questions” to be answered.
In accordance with my solicitor’s advice, I am requesting all communications regarding this matter to be in writing. As I am seeking legal advice from an Australian solicitor it would be imperative that communications have English translations to ensure contents are clear and will not be subjected to misinterpretation.
[38] Affidavit A M B Witwit 12.06.2020, [40]; exhibit AW-1, page 41
Mr Sultan’s reference to “your letter dated 6 September 2018” is a reference to the Enquiry.[39]
[39] 01.09.2020 T33.20
It is reasonably open to find, and I do find, that Mr Sultan’s email of 6 September 2018 conveyed a number of representations which included representations to the effect that the Enquiry made accusations against Mr Sultan; Mr Sultan had been advised by his solicitor that under Australian law he had the right to be provided with the evidence on the basis of which the accusations were made before he could respond to the accusations; and Mr Sultan would respond to the accusations made in the Enquiry on being provided with the evidentiary basis on which the accusations were made (6 September email representations). I also find that in his email Mr Sultan requested that if Mr Witwit did not intend to make any accusations the Enquiry should be amended to reflect that fact.
In his affidavit Mr Witwit referred to Mr Sultan’s email, and said that “Mr Sultan did not provide any written, or verbal response to the three questions put to him as part of the enquiry and he did not cooperate with the enquiry”.[40] Mr Witwit, however, gives no evidence about whether he read Mr Sultan’s email and about what representations he understood Mr Sultan’s email conveyed. Mr Witwit does not say whether he understood Mr Sultan conveyed any one or more of the 6 September email representations; or, if Mr Witwit understood Mr Sultan’s email to have conveyed any one or more of those representations, whether he considered the Enquiry did make accusations against Mr Sultan, and, if so, whether Mr Sultan should be provided with the basis on which the accusations were made.
[40] Affidavit A M B Witwit 12.06.2020, [41]
7 September 2018 – Mr Witwit says he issued a warning to Mr Sultan
According to Mr Witwit, on 7 September 2018 he “issued Mr Sultan” a written warning (Warning Letter), the English translation of which is as follows:[41]
[41] Affidavit A M B Witwit 12.06.2020, [41]; exhibit AW-1, page 42 (bold in original)
Republic of Iraq
Consulate General of the Republic of Iraq
Sydney
Number: Thal/2/7/1884 Date: 07.09.2018
Jalal Musaed Sultan / Clerk
Subject: Warning Penalty
As you overstepped and affronted your work superior; and, as you disregarded the instructions and the directions; and, due to your negligence in discharging your obligations and carrying out the tasks entrusted to you,
We serve you this warning
In case of repeating such wrongdoing in the future, the penalty shall be harder.
-Signed on 07.09.2018 by Ali Mohammed Witwit on behalf of the Consul General
-Duly stamped by the seal of the Consulate General of the Republic of Iraq/Sydney
Copies to
-Ministry of Foreign Affairs/Office of the Inspector General for kind perusal … With Appreciation
-Ministry of Foreign Affairs, the Administrative Department, Second Personnel for kind perusal … With appreciation
Mr Sultan does not in his affidavit refer to the Warning Letter. In evidence given under cross-examination, however, Mr Sultan said he did not receive it:[42]
MR FERNON: Thank you. Do you recall being given that document at page 175, the English translation of which is at page 174 – do you recall being given that document by Mr Witwit in the workplace?‑‑‑No, I do not. As I mentioned to you, it has surfaced just now, when you sent me the book.
But you would agree that it is possible that you were given the document ‑ ‑ ‑?‑‑‑There is no such thing.
‑ ‑ ‑ and you no longer recall it?‑‑‑No, there is no such thing. There is a policy in the office where you need to sign one. If I have received it, I need to sign on it. That’s the policy in the office.
HIS HONOUR: What’s the policy? Did you say to sign?‑‑‑To sign. That is, you received this document.
All right?‑‑‑The second copy, in the office, I didn’t sign it. As I mentioned to you, I haven’t received. This just surfaced now, plus the complaint of Ms Taha. Just now I saw it. I am under oath.
[42] 01.09.2020 T40.30
Mr Sultan cross-examined Mr Witwit about the Warning Letter; and, again, it would be convenient if I set out the relevant passages from the transcript:[43]
[43] 02.09.2020 T173.35-T175.5
MR SULTAN: After that you issue a warning to me?‑‑‑Yes.
Why I haven’t the warning?
HIS HONOUR: Sorry? That assumes you haven’t received it. Are you aware – well you have to ask him.
Do you know whether Mr Sultan received the warning which is the document at page 174?‑‑‑He should – he should have received it. It’s not my responsibility to handed him the warning.
All right.
MR SULTAN: I should receive it, but I did not. I saw it only on paper. That mean.
HIS HONOUR: Well just hang on?‑‑‑Excuse me. I have no idea that you did not.
Well can I ask a question?
MR SULTAN: Yes, my question is why they did not hand me that warning.
HIS HONOUR: Well this witness, Mr Witwit doesn’t accept – doesn’t accept that – he doesn’t know. So, I’m going to ask him a question – again, subject to objections.
Do you know – who prepared this document? By this document I mean at page 174 of the court book. Well I should look at the Arabic version – 175?‑‑‑Yes. The administration.
Administration. And do you know how – how it go into the – how you say – well, do you believe it was given to Mr Sultan?‑‑‑Yes.
What’s the basis of your belief?‑‑‑Because it’s relevant to the employee.
Yes, but – is there any other reason why you believe this document was given to Mr Sultan?‑‑‑It’s directed to him.
Directed to him. Is that all – you looked at the document?‑‑‑Yes.
All right. Thank you.
MR SULTAN: It the policy of the consulate if you – the consulate to inform anybody about any letter from the Ministry or anything – they need sign on. This warning letter should be two copy ‑ ‑ ‑
HIS HONOUR: Hold it. Wait. Is that a question? Look, I’m asking a lot of questions, but what I’m trying to do, Mr Fernon, is to get the essence of what’s being asked.
MR FERNON: Yes, I appreciate that. Thank you.
. . . .
HIS HONOUR: There’s an assumption that there’s a practice in the consulate that when documents of this nature at least are handed, that the person to whom the document is handed signs a receipt for it. Are you aware of such practice? - Your Honour, it’s the matter of administration to do it. I have no involvement in it.
All right. All right. So, you don’t know whether that’s a practice or not? - Yes.
All right.
In light of the evidence Mr Sultan and Mr Witwit gave in cross-examination, there are a number of observations that may be made about Mr Witwit’s evidence that on 7 September 2018 he “issued” Mr Sultan with the Warning Letter:
(a)Mr Witwit did not prepare the Warning Letter; the “administration” prepared it. The Consulate, however, has not adduced evidence to identify the person who prepared the Warning Letter, when the Warning Letter was prepared, the circumstances in which the Warning Letter was prepared, or the information on the basis of which the Warning Letter was prepared, or the source of the information on which it was prepared.
(b)Mr Witwit did not provide the Warning Letter to Mr Sultan. Mr Witwit said it was not his responsibility to do so. Mr Witwit believed, however, the Warning Letter was provided to Mr Sultan, and the basis of that belief was the Warning Letter’s being directed to Mr Sultan. The Consulate has not adduced evidence that identifies the person who delivered the Warning Letter to Mr Witwit, and has not adduced, therefore, any evidence of the manner in which or the day and time at which the Warning Letter was given to Mr Sultan.
(c)Given the contents of Mr Sultan’s email of 6 September 2018, and in particular the 6 September email representations, it is unlikely that Mr Sultan would not have responded to the Warning Letter, had it been given to him.
There are two other items of evidence relevant to whether the Warning Letter was given to Mr Sultan or whether, as Mr Sultan has stated in his evidence, the Warning Letter was not given to him. These are the memoranda to and from the Ministry to which I have already referred. For reasons I give later, I do not accept these documents are what they purport to be. In any event, to the extent they are what they purport to be, they do give some support for Mr Sultan having been given the Warning Letter. But that support must be viewed in light of the observations I set out in paragraph 42 of these reasons.
In light of these observations, and even if I were to find the memoranda to and from the Ministry are what they purport to be, I accept the evidence Mr Sultan gave in cross-examination that he was not given the Warning Letter;[44] and I find, therefore, that Mr Sultan was not handed the Warning Letter and he otherwise was not made aware of its contents during his employment with the Consulate. Given these findings, I am not satisfied the Warning Letter was “issued” by Mr Witwit at the time he says he “issued” it, or that he or any other person had given any instructions to any other person within the Consulate to prepare or to give to Mr Sultan the Warning Letter.
[44] In evidence he gave under cross-examination Mr Sultan said there was a policy within the Consulate that any document the Consulate gave to an employee required that employee to sign a receipt on a duplicate of the document given to the employee. Although Mr Witwit said he was not aware of their being any such policy, I am not prepared to find the Consulate had any such policy because there are documents Mr Sultan accepts he received – in particular the Enquiry and the letter dated 30 November 2018 by which the Consulate informed Mr Sultan his contract of employment would not be renewed – which do not appear to have been signed by Mr Sultan.
Decision not to renew Mr Sultan’s contract of employment and reason for decision
Mr Witwit deposes as follows:[45]
At the time I issued Mr Sultan with the warning in September 2018, I considered that his conduct and behaviour the subject of the enquiry was unsatisfactory, a likely breach of his employment contract and sufficient grounds for the Consulate to terminate his contract of employment. As Acting Consul-General at the time, I had the ability to make decisions on behalf of the Consulate with regards to the hiring of [Local Employees] and the renewal of LES’s contracts of employment. However, having regard to Mr Sultan’s age and the fact that he was employed on a yearly contract, I considered that the better course of action was to not renew his contract for a further term when it expired in December 2018.
[45] Affidavit A M B Witwit 12.06.2020, [42]
In the course of his cross-examination of Mr Witwit, it became apparent that Mr Sultan wanted to put to Mr Witwit that his evidence of the reason for deciding not to renew Mr Sultan’s contract of employment was false and a recent invention. I formulated what I understood Mr Sultan wished to put to Mr Witwit, and asked for Mr Witwit’s response as follows:[46]
HIS HONOUR: What’s being put to you, Mr Witwit, is that the account that has been given in your affidavit of the reasons why Mr Sultan’s contract was not renewed is a recent invention – and that is to say, you first thought of it at about the time that you prepared the affidavit and that it is in fact false. What’s your answer to that? - My answer is that this is the reason and nothing else.
[46] 02.09.2020 T178.10
Before I assess Mr Witwit’s evidence of the reason for which he says Mr Sultan’s contract of employment was not renewed, it is necessary to refer to the memoranda between the Ministry and the Consulate to which I have already referred, and also to the evidence Mr Witwit gave in cross-examination.
Memoranda between Consulate and Ministry
In his affidavit Mr Witwit did not say he had communicated with the Ministry about the decision not to renew Mr Sultan’s employment. In cross-examination, however, Mr Witwit said he communicated with the Ministry in relation to the non-renewal of Mr Sultan’s contract of employment.[47] Mr Witwit said he sought the Ministry’s approval “for the compensation for a termination – for non-renewal of the contract”; he did not seek approval for the decision not to renew Mr Sultan’s contract, but “just for the money to be allocated”.[48] There was a call on the documents sent to and from the Ministry. I was told the documents are in Arabic, and they had to be translated. Two documents in Arabic, and English translations apparently made on 2 September 2020, were produced on 4 September 2020, and they were admitted into evidence.[49]
[47] 02.09.2020 T168.20
[48] 02.09.2020 T169.5
[49] Exhibits B and C
The first of the two documents is a memorandum apparently signed “for the Consul General – Ali Mohamed Tout – 11/09/2018”.[50] It is as follows:
[50] Exhibit B
Number: 1008 – Date: 3.11.2018
Consulate General of the Republic of Iraq – Sydney – No: Z/1/3/1905 – Date: 11/09/2018
Ministry of Foreign Affairs/The Administrative Department
Re: Dues
In regard to the Administrative Order No:1884 on 07/09/2018 concerning directing the warning penalty to the clerk/Jalal Mousaed Sultan (local employee).
Given the behaviour of the above-mentioned towards his immediate supervisor at work, it has been decided not to renew his work contract, which ends on 31/12/2018. He will be notified before enough time and will be granted an end of service remuneration as per the Australian Labour Law to avoid any legal violation.
For your information and direction in regard to financial dues.
Signed for the Consul General – Ali Mohamed Tout – 11/09/2018
[Seal]
Copies to:
-Ministry of Foreign Affairs/Minister’s Office/for your information…with appreciation
-Ministry of Foreign Affairs/Office of the Auditor General/for your information…with appreciation.
-Ministry of Foreign Affairs/Minister’s Office/Legal Department for your information and for the same above-mentioned purpose
The following matters may be noted about this document, and the reasons for which Mr Witwit says it was prepared and sent to the Ministry:
(a)The English translation contains numbers that do not appear in the Arabic version of the document. The English translation contains the words and numbers: “Number: 1008 – Date: 3.11.2018”. The 12 or 13 November 2018 memorandum from the Ministry contains the number “1008”, but within the longer string of letters and numbers of “No: Z/3/Sh2/1008 – Date 13/11/2018”.
(b)In addition to containing the date “3.11.2018” the English translation includes the words and numbers “Date: 11/09/2018”. The numbers “2018/9/11” appear on the top left hand corner of the Arabic version of the document and below what appears to be a signature at the bottom left of the document.
(c)There is no evidence of the circumstances in which the memorandum was prepared. It appears to have been prepared by Mr Tout “for the Consul General”. Presumably that is intended to be a reference to Mr Witwit. There is no evidence of who asked Mr Tout to prepare it, or of the information that was given to Mr Tout to prepare the memorandum.
(d)There is no evidence about the means by which the memorandum was sent to the Ministry, assuming it was sent. There is no evidence of any receipt from the Ministry either.[51]
(e)There is no evidence to explain why the memorandum was prepared and sent at the time it purports to have been prepared and sent (either 3 or 9 November 2018), being some two months after the day on which Mr Witwit said he observed the incident between Mr Sultan and Ms Taha.
(f)The memorandum does not identify the behaviour of Mr Sultan towards his immediate supervisor at work.
(g)Although the memorandum is headed “Re: Dues”, and it states “[f]or your information and direction in regard to financial dues”, the memorandum does not identify what “financial dues” would or might become payable. It is implausible that a document would be prepared to obtain approval for the making of a decision that has or may have financial consequences yet not identify what the financial consequences are or might be. Further, as I set out below, the 12 or 13 November 2018 memorandum from the Ministry has as its subject “Re: Sending Notification”, not “Re: Dues”.
[51] In Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499, at [68]-[72], I set out evidence Mr Witwit gave about a dual email system the Consulate maintained, and the Consulate’s email retention policy. One aspect of Mr Witwit’s evidence is that the Consulate prints off an email from the Ministry acknowledging receipt of a document sent from the Consulate.
These matters prevent me from being satisfied that the memorandum from the Consulate to the Ministry is what it purports to be. I am therefore not prepared to find on the basis of the document itself, and from what Mr Witwit has said about the document, that a memorandum to the effect of the memorandum dated 3 or 9 November 2018 was prepared at the time it purports to have been prepared or before the decision had been taken not to renew Mr Sultan’s contract of employment.
The second of the two documents is as follows:[52]
[52] Exhibit C
Republic of Iraq – Ministry of Foreign Affairs – Administrative Department
No: Z/3/Sh2/1008 – Date: 13/11/2018
Republic of Iraq’s Consulate General/Sydney
Re: Sending Notification
Your letter No Z/1/3/1905 on 11/09/2018
Sending notification to the local employee Jalal Mousaed Sultan/clerk, as per the Australian Labour Law, and terminate services of the above-mentioned person starting from the expiry date of his contract on 31/12/2018, and grant him an end of service remuneration as per the Australian Labour Law so as to avert any legal matter.
Please for your information and to take the necessary and inform us. With appreciation.
Signed by: Assistant Head of the Administrative Department
Makki Risan Al-Mamouri
12/11/2018
Copies to:
-Minister’s Office/Auditing and Internal Control/for your information and with our appreciation
-Office of His Excellency the Ambassador Dr Adel Moustafa Kamel on 05/11/2018, for your information and with our appreciation.
-Office of the Head of the Administrative Department/Aldouar/Second subjectivity/Branch of local employees …with appreciation
The following may be noted about this document:
(a)There is no evidence about the means by which the memorandum was sent to the Consulate, assuming it was sent.[53]
(b)The date on the top left hand corner of the Arabic version of the document is “2018/11/13”, but the date under the apparent signature of Makki Risan Al-Mamouri is “2018/11/12”.
(c)The document appears to represent that a copy had been sent to the Ambassador on 5 November 2018, at least one week before the document was apparently signed by Mr Al-Mamouri. The Consulate has given no evidence or any explanation in relation to this.
[53] As I have already noted, in Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499, at [68]-[72], I set out evidence Mr Witwit gave about a dual email system the Consulate maintained, and the Consulate’s email retention policy.
These matters, together with my not being satisfied that the memorandum dated 3 or 9 November 2018 from the Consulate to the Ministry is what it purports to be, prevents me from being satisfied that the memorandum from the Ministry to the Consulate dated 12 or 13 November 2018 is what it purports to be. I am therefore not satisfied the memorandum from the Ministry to the Consulate dated 12 or 13 November 2018 is what it purports to be.
Mr Witwit’s evidence in cross-examination
In addition to putting to Mr Witwit that his evidence about the reasons for dismissing him is a recent invention, Mr Sultan put to Mr Witwit matters which may be capable of undermining Mr Witwit’s evidence. These are Mr Witwit’s accepting that before he sent the “Enquiry”, he had met with Ms Taha, but not with Mr Sultan, and therefore only accepted Ms Taha’s version of events;[54] Mr Witwit’s accepting that he was not aware of any complaint having been made about Mr Sultan, or about Mr Sultan not following directions, other than the Complaint;[55] Mr Witwit’s having previously given Mr Sultan a favourable reference for his performance;[56] Mr Witwit’s accepting he did not seek to reconcile Mr Sultan and Ms Taha’s differences, other than by Mr Witwit asking for Mr Sultan’s response to the “Enquiry”;[57] and Mr Sultan putting to Mr Witwit (which he denied) that he did not ask Mr Sultan face to face to provide the information requested in the “Enquiry”.[58]
[54] 02.09.2020 T161.40-T162.5
[55] 02.09.2020 T163.20
[56] 02.09.2020 T167.30
[57] 02.09.2020 T172.20
[58] 02.09.2020 T173.20
Assessment of evidence
I do not accept Mr Witwit’s evidence I have reproduced in paragraph 45 of these reasons. That follows from the findings I have made: I have not accepted Mr Witwit’s evidence concerning an incident on 4 September 2018; I have not accepted his evidence that he received the Complaint at the time he said he received it; I have found that Mr Sultan was not given the Warning Letter; and I have found that, although there was an incident between Mr Sultan and Ms Taha in the morning of 5 September 2018, Mr Sultan did not engage in the conduct Mr Witwit deposes Mr Sultan engaged in, or in the conduct the Complaint alleges Mr Sultan engaged in.
30 November 2018 – Mr Witwit informs Mr Sultan that contract of employment will not be renewed
On 30 November 2018 Mr Witwit met with Mr Sultan, together with two other officers of the Consulate, and told Mr Sultan that his employment contract was not going to be renewed for a further term. Mr Witwit handed to Mr Sultan the following letter:[59]
[59] Affidavit A M B Witwit 12.06.2020, [44], exhibit AW-1, page 44
Notice of non-renewal of employment contract
Date: 30/11/2018
Dear Mr. Jalal Sultan,
We regret to inform you of a decision not to renew your employment contract with the Consulate General of the Republic of Iraq in Sydney, on the expiration date 31/12/2018; therefore, please consider the aforementioned date as your last day of work. This months’ notice of non-renewal for an employee is done in compliance with the minimum notice period required by the Australian Fair work.
You are required to return any of the Consulate’s material, documents or equipment to which you had access during the period of your contract. As with all employees, you are bound by our confidentiality and data protection policies.
You are entitled to be paid your month salary, superannuation and any of shortfall wages in accordance with the Australian fair work law. You are also entitled to Redundancy. Please provide us your TFN, Super fund details and bank details.
We would like to thank you for your contribution and we wish you all the best for the future.
Sincerely,
[Seal]
Ali Witwit
Consul
SUMMARY OF FINDINGS
It will be convenient if at this point if I set out my principal findings.
(a)Mr Sultan commenced employment with the Consulate in 2011 as a clerk under a fixed term contract that was regularly renewed for fixed terms. In January 2018 the Consulate employed Mr Sultan under a fixed term contract that was due to expire on 31 December 2018.
(b)Since around April 2016 Mr Sultan had been working in the Consulate’s visa and passport division. In April 2018, however, the Head of Mission decided that Mr Sultan would be assigned to the Consulate’s power of attorney division.
(c)On 20 April 2018 Mr Witwit and two other Consulate employees met with Mr Sultan and informed him of the Head of Mission’s decision to move him to the power of attorney division. Mr Sultan said the decision was unfair.
(d)On 6 May 2018 Mr Sultan sent an email to the Head of Mission. Mr Sultan stated he expected he would have been given due respect and not be told about the sudden change in his role without prior discussions. Mr Sultan said he believed the decision was unfair, and he felt he was being disadvantaged. Mr Sultan requested the Head of Mission reconsider her decision.
(e)On 7 May 2018 Mr Sultan met with the Head of Mission and Mr Witwit and again said he was being treated unfairly.
(f)In the morning of 5 September 2018 there was an incident between Mr Sultan and his immediate supervisor, Ms Taha. The incident consisted of Ms Taha shouting at Mr Sultan, and Mr Sultan shouting to Ms Taha in return. Mr Sultan may well have used words, or may have expressed words in a manner, that Ms Taha, being senior to Mr Sultan, found offensive and improper, and which merited, in her view, reporting the incident to Mr Witwit. Mr Sultan did not during the incident (or at any other time) say words to the effect of “I will crush your skull by my shoes”, as Mr Witwit deposed in his affidavit, or otherwise use “bawdy and disgusting words” as alleged in the Complaint. Mr Witwit came to the room where the incident occurred but after Ms Taha had left the room.
(g)After the incident on 5 September 2018 Ms Taha met with Mr Witwit; and on 6 September 2018 Mr Witwit issued the Enquiry to Mr Sultan.
(h)On 6 September 2018 Mr Sultan sent an email to Mr Witwit in response to the Enquiry. Mr Sultan said he had obtained legal advice, and he was advised that the questions raised in the Enquiry were not questions, but accusations; and that under Australian law it was his right to be provided with the relevant basis of the accusations. Mr Sultan further said that once that evidence is provided, he would respond to the accusations. Mr Sultan also said that if Mr Witwit did not make accusations, he requested that the Enquiry be amended.
(i)On 30 November 2018 Mr Witwit informed Mr Sultan that Mr Sultan’s contract of employment would not be renewed after 31 December 2018.
DID THE CONSULATE CONTRAVENE s 340(1) OF THE FW ACT?
Mr Sultan claims that the Consulate has taken adverse action against him in a number of respects. The principal claim relates to the Consulate’s decision not to renew his employment contract. Before I consider whether on the findings I have made the Consulate has contravened s 340(1) of the FW Act, it will be convenient to set out the relevant statutory provisions and some principles.
Statutory provisions and principles
I begin with the text of s 340(1) of the FW Act, which provides:
A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Three matters must be established before a person will be held to have contravened s 340(1) of the FW Act.
Adverse action by prospective employer against prospective employee
First, it must be shown that the person who is alleged to have contravened s 340(1) of the FW Act has taken “adverse action against another person”. “Adverse action” is defined in a table contained in s 342(1) of the FW Act. The table identifies in one column the persons by whom and against whom adverse action must be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. Relevant to Mr Sultan’s claims are the persons and conduct identified in item 2 of the table in s 342(1) of the FW Act. This item covers adverse action taken by “a prospective employer against a prospective employee”; and the adverse action relevantly includes “the prospective employer” refusing “to employ the prospective employee”.
The Consulate submits that “prospective employee” does not include an employee who is employed under a contract of employment that is due to expire at some fixed time. This construction assumes that a person cannot be both an employee and a prospective employee. The basis of this submission appears to be the well-accepted principle that a contract of employment may subsist even where an employment relationship has come to an end.[60] It is not apparent, however, how it is said this principle yields the proposition that a person can be either an employee or a prospective employee but not both; and in my opinion the distinction between a contract of employment and the employment relationship that has been drawn in the cases has no bearing on the meaning of “prospective employee” and “prospective employer”, as those expressions are used in s 342(1) of the FW Act. Whether a person is a “prospective employee” or “prospective employer” turns on the proper construction of those expressions in their context.
[60] Respondent’s Supplementary Submission on Item 2 of s 342 of the Fair Work Act, [3] referring to Visscher v The Honourable President Justice Giudice [2009] HCA 34
I begin with the word “employee”. That describes a party to a well-recognised class of contracts, namely, contracts of employment, where the other party to the contract is called the “employer”. Next, there is the word “prospective”. When used in connection with “employee”, “prospective” denotes the prospect that a state of affairs will or may exist in relation to a person at some point in the future, and a prospect that something will or may occur to that person in the course of that state of affairs. The prospective state of affairs is that the person will not be an employee, that is, there is the prospect that the person will not be in a contract of employment with an employer; and the prospective event is that the person will become an employee, that is, there is a prospect that the person will enter into a contract of employment with an employer. Because “employee” is a party to a contract of employment, a person’s being a prospective employee necessarily implies there is an identifiable “prospective employer”; and that is a person who at some point in the future may not be in a contractual relationship with the prospective employee, but there is a prospect that that person will enter into a contract of employment with the prospective employee. Thus, that two persons are currently parties to a contract of employment does not mean they cannot be a “prospective employee” and a “prospective employer”. That will be the case where the parties are bound to a fixed term contract of employment and there is some prospect that the parties will enter into a contract for a further term. In those circumstances there is the prospect that a new contract of employment will be made, and the employee and the employer will be a prospective employee and a prospective employer.
Counsel for the Consulate referred me to the judgment of Tracey J in Kweifio-Okai v Australian College of Natural Medicine (No 2).[61] In that case an employee under a fixed term contract claimed his employer had taken adverse action by suspending him from his employment and by deciding not to renew his contract of employment. The employer conceded that this constituted adverse action and Tracey J observed that “[b]oth concessions were properly made”.[62] Counsel submitted the concession that the failure to renew a fixed term contract constituted “adverse action” was wrongly made, because “[n]o consideration was given to the distinction between a ‘contract of employment’ and ‘employment’ which the High Court re-emphasised in Visscher – at [53]”.[63] I do not accept this submission. For reasons I have given, an employee and an employer are also capable of being a prospective employee and a prospective employer.
[61] Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124
[62] Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124, at [11]
[63] Respondent’s Supplementary Submission on Item 2 of s 342 of the Fair Work Act, [6]
The next aspect of this species of adverse action I need to consider is the requirement that the prospective employer “refuses to employ the prospective employee” within the meaning of s 342(1) of the FW Act. Banks-Smith J considered the meaning of this expression in Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd.[64] Her Honour referred to a number of authorities that show there is a difference of opinion about the meaning of “refusal to employ”. Flick J described the difference of opinion in Stephens v Australian Postal Corporation.[65]
[64] Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893
[65] Stephens v Australian Postal Corporation [2014] FCA 732, at [21]
Lurking behind the phrase “refusal to employ” are questions as to whether the phrase means:
Ÿa refusal to employ a person to a position which is in fact vacant - in which case, it may be the prospective employee who has the onus of proving that a position is vacant; or
Ÿa failure to employ a person upon an application being made, whether or not a position has been advertised as being vacant and (perhaps) even where there is known to be no vacant position - in which case, s 361 would transfer the onus to the employer to explain the reason why the application was unsuccessful.
Even on such a simple approach to the analysis of the phrase, a further variant may be:
Ÿif a position was once vacant, but is no longer vacant, the reason why a vacancy no longer exists - in which case, the onus may be upon the employer to explain why the vacancy no longer exists.
The decisions of Moore J in Fraser, supra and that of Wilcox J in BHP, supra, would support the first analysis; the decision of North J in Belandra, supra, would support the second and third analysis. Each of these variants is but a variant upon the one theme.
It is not necessary for me to determine which of these interpretations is correct. I will instead assume that “refusal to employ” requires that there be a refusal to employ a person to a position that is or will become vacant.
Workplace right
The second matter that must be established before a person who is claimed to be a “prospective employer” has taken adverse action against a “prospective employee” is if, among other things, the prospective employee has exercised a “workplace right”. Under s 341(1)(c)(ii) of the FW Act a person has a “workplace right” if, among other things, the person, “is able to make a complaint or inquiry . . . if the person is an employee – in relation to his or her employment”. The ordinary meaning of the word “complaint” is a statement expressing a grievance or a finding of fault; and an expression of grievance or accusation need not be factually correct, substantiated or ultimately made out in order to constitute a complaint within the meaning of s 341(1)(c)(ii) of the FW Act.[66] The ordinary meaning of “inquiry” is the act of seeking information about or concerning something.[67]
[66] Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, at [600]
[67] Oxford English Dictionary
There is an aspect of the construction of s 341(1)(c)(ii) of the FW Act that may be relevant, and that relates to the words “is able”. There is controversy within the Federal Court about the proper construction of these words. In Cummins South Pacific Pty Ltd v Keenan,[68] all three justices of the Full Federal Court were of the view that all three justices in PIA Mortgage Services Pty Ltd v King[69] construed “is able” in s 341(1)(c)(ii) as requiring a complaint to be “underpinned by a right or entitlement to make it”.[70] In Cummins, however, Bromberg and Mortimer JJ were of the view that that construction was incorrect, and said they would have refused to follow that construction if that would have been necessary to dispose of the appeal.[71]
[68] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
[69] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
[70] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [64] (Bromberg J), [209] (Mortimer J), [286] (Anastassiou J)
[71] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [66] (Bromberg J), [209] (Mortimer J)
Reasons for action
The third matter that must be proved to establish a contravention of s 340(1) of the FW Act by a prospective employer is that the prospective employer has taken the adverse action for a particular reason, or for reasons that included a particular reason.[72] That requirement arises from the presence of the word “because”:[73] s 340(1) of the FW Act prohibits a person from taking adverse action “because” a person has a “workplace right”, or because the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right. Further, where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”,[74] or must be an “operative or immediate reason for the action”.[75] [
[72] FW Act, s 360
[73] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, at [7]; Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284, at [26] (Tracey J)
[74] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [127] (Gummow and Hayne JJ)
[75] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [140] (Heydon J)
An important aspect of determining whether in any given case a person has taken adverse action “because” of one or more of the matters specified in s 340(1) of the FW Act is s 361(1) of that Act. That subsection provides:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
In Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd, Jessup J (with whose reasons Rangiah J agreed), made the following observations about the effect and operation of s 361(1) of the FW Act:[76]
In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, 516 [41], French CJ and Crennan J said that “the question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the [FW] Act.” Their Honours continued (248 CLR at 517 [45]):
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. [See, eg, General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676 (note) …] Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker [See, eg, Pearce v WD Peacock & Co Ltd (1917) 23 CLR 199 at 208 per Isaacs J; at 211 per Higgins J.] or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. [See, eg, Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270 at 276 [31]-[33].]
In other words, whether the onus arising under s 361 has been discharged in a particular case will depend upon the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision‑maker acting on behalf of the employer.
[76] Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, at [27], [28]
Did the Consulate take adverse action against Mr Sultan?
The question is whether the Consulate’s decision not to renew Mr Sultan’s contract of employment constituted a refusal by a prospective employer not to employ a prospective employee within the meaning of item 2 of the table in s 342(1) of the FW Act.
Mr Sultan and the Consulate were parties to a contract of employment that was due to expire on 31 December 2018. Until no later than 30 November 2018, when the Consulate informed Mr Sultan that his contract of employment would not be renewed, there was a prospect Mr Sultan’s contract of employment would not be renewed beyond that date, and that is because Mr Sultan had no contractual entitlement to a further term. There was also a prospect, however, that his contract of employment would be renewed. That is what had occurred regularly since Mr Sultan commenced his employment with the Consulate in 2011. Thus, until no later than 30 November 2018 when the Consulate informed Mr Sultan that his contract of employment would not be renewed, Mr Sultan was a prospective employee, and the Consulate was a prospective employer.
Next it is necessary to consider whether the Consulate’s decision not to renew Mr Sultan’s contract of employment constituted a refusal to employ Mr Sultan. That must be determined by reference to the following findings and matters:
(a)Mr Sultan had been employed as a clerk since October 2011 on fixed term contracts the Consulate regularly renewed.
(b)There is no evidence that any responsible person had reported adversely on Mr Sultan’s performance as an employee; Mr Witwit gave evidence that he was not aware of any complaint having been made about Mr Sultan, or about Mr Sultan not following directions, other than the Complaint Ms Taha made.[77]
(c)On the Consulate’s case, it did not renew Mr Sultan’s employment contract because of a particular incident. That implies that but for the alleged incident the Consulate would have renewed Mr Sultan’s contract of employment.
[77] 02.09.2020 T163.20
There is one other matter to note. In its letter to Mr Sultan dated 30 November 2018 the Consulate refers to Mr Sultan being entitled to redundancy. There is no evidence, however, that the Consulate tendered any money to Mr Sultan because his position had become redundant, and there is otherwise no evidence Mr Sultan’s position was made redundant.
In light of these findings, it is open to find, and I do find, that as at 30 November 2018, when the Consulate notified Mr Sultan that his contract of employment would not be renewed, the Consulate would have had, as at 1 January 2019, a vacancy for a clerk in its power of attorney division that Mr Sultan had previously occupied, for a period of at least one year. I therefore find that the decision the Consulate, a prospective employer, conveyed to Mr Sultan, a prospective employee, on 30 November 2018 not to renew his contract of employment constituted a refusal by the Consulate to employ Mr Sultan to fill that vacancy; and, for that reason, constituted the Consulate’s taking adverse action against Mr Sultan within the meaning of item 2 of the table to s 342(1) of the FW Act.
Did Mr Sultan exercise any workplace right?
In his application Mr Sultan appears to claim that he made complaints to the Consulate about his entitlements. There is no evidence this occurred, a matter Mr Sultan conceded at the hearing. That, however, is not the end of the matter.
On the findings I have made, there are four things that could conceivably be considered to constitute Mr Sultan’s making a complaint or enquiry in relation to his employment. The first is the statement Mr Sultan made in the meeting of 20 April 2018 that the decision to assign him to the Consulate’s power of attorney division was unfair. The second is the statements Mr Sultan made in his email to the Head of Mission on 6 May 2018 that he had expected he would have been given due respect and not be told about the sudden change in his role without prior discussions; he believed the decision was unfair; and he felt he was being disadvantaged. Mr Sultan requested the Head of Mission reconsider her decision. The third is Mr Sultan’s stating in the meeting of 7 May 2018 that he was being treated unfairly. The fourth is the email Mr Sultan sent to Mr Witwit on 6 September 2018.
Although at the hearing Mr Sultan claimed he had been unfairly dismissed, and, relying on the email of 6 May 2018 he sent to the Head of Mission, Mr Sultan claimed the Consulate discriminated against him, Mr Sultan did not in terms claim that any of the four matters I identify in paragraph 79 of these reasons constituted the making of a complaint or enquiry in relation to his employment. Mr Sultan, however, is an unrepresented litigant. That, of course, does not entitle him to any privileges; but I have an obligation to ensure that Mr Sultan, as an unrepresented litigant, does not remain in ignorance of a potential right that may arise on the evidence before me. In that regard, I refer to the following passage from the judgment of the Full Federal Court of Australia in Flightdeck Geelong Pty Ltd v All Options Pty Ltd (emphasis added):[78]
The submissions advanced on appeal revealed the existing lack of clarity as to the obligations of a court to a litigant-in-person. Though the principles might be succinctly stated at a high level of generality, their application in a particular case is somewhat more problematic. Statements to the effect that, “Courts have an overriding duty to ensure that a trial is fair”: see, eg, Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 330, 362; or that judges must ensure that trials are conducted fairly and in accordance with law: MacPherson v R [1981] HCA 46; (1981) 147 CLR 512, 523, are axiomatic but do not offer any great assistance in the particular circumstances of a trial. On the other hand, the observations of Mason J (as his Honour then was) in MacPherson at 534 that the general duty to ensure that litigants do not suffer any disadvantage from exercising their right to be self-represented, includes the obligation to ensure that they do not remain in ignorance of a fundamental principle which, if invoked, may prove advantageous to them, do offer assistance at a more granular level. The disadvantages to which Mason J referred are usually identified as a lack of knowledge (both of the law and the processes of the court) and a lack of objectivity: Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 130 [140] (Bell J).
In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person:
(a)Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: Hamod [311]. For example, failing to explain the difference between formal sworn testimony and statements made from the bar table, and the significance of failing to file an affidavit, to enable a litigant-in-person to choose whether or not to give oral evidence, may amount to a denial of procedural fairness: SZRUR [39]. Additionally, failing to explain the risks in not leading evidence where adverse inferences might be drawn may also constitute a denial of procedural fairness: Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; (2014) 46 VR 283.
(b)Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: MacPherson, 534. For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness: AMF15, 50 [47].
(c)Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: Rajski.
[78] Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138, at [51], [55]
I propose, therefore, to invite the parties to make submissions about whether any of the events to which I refer in paragraph 79 of these reasons constitute a complaint or enquiry by Mr Sultan and, if so, whether Mr Sultan’s making the complaint or enquiry constitutes Mr Sultan’s exercise of an ability to make a complaint or enquiry in relation to his employment and, for that reason, exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act.
Reason for not renewing Mr Sultan’s employment contract
I have not accepted Mr Witwit’s evidence about the reason for which he decided not to renew Mr Sultan’s contract of employment. I am aware that Mr Witwit denied that he decided not to renew Mr Sultan’s contract of employment for the reasons Mr Sultan claims in his application and affidavits. But given I have not accepted Mr Witwit’s evidence of the reason for which he says he decided not to renew Mr Sultan’s contract of employment, no positive content can be given to Mr Witwit’s denials because those denials were based on evidence I have not accepted.
If, therefore, I were to find that Mr Sultan did make a complaint or enquiry in relation to his employment, and this constituted the exercise of an ability he had to make a compliant or enquiry in relation to his employment, the Consulate will be taken to have contravened s 340(1) of the FW Act.
SHAM CONTRACTING?
Mr Sultan wishes to amend his application to allege the Consulate engaged in “sham contracting”, contrary to s 357 of the FW Act. The basis of this intended claim appears to be that, like Ms Yalda, the contract Mr Sultan signed at the beginning of his employment contained provisions that purported to require the employee use an ABN number. While that may have reflected the form of contract Mr Sultan signed when he commenced his employment with the Consulate, there is no evidence on the basis of which I could find that the Consulate expressly or impliedly represented to Mr Sultan that he was anything other than an employee of the Consulate. I am therefore not satisfied there is any arguable case the Consulate contravened s 357 of the FW Act.
OTHER ISSUES
In his Form 2 and affidavit made on 30 January 2020 Mr Sultan claims the Consulate failed to provide him with payslips; the Consulate required Mr Sultan to take all annual and sick leave during the course of the year without allowing these benefits to accrue; the Consulate did not pay Mr Sultan annual leave that had accrued; the Consulate failed to pay superannuation; and the Consulate required Mr Sultan to work overtime without pay. As I noted at the beginning of these reasons the Consulate submits these were not claims it had come prepared to defend. I propose to list the matter to hear submissions about whether these are claims that fall within the scope of the proceeding Mr Sultan has brought against the Consulate and if so whether I should hear and determine those claims.
In his Form 2 Mr Sultan also claims the Consulate did not pay tax on his income or provide him with group certificates. Mr Sultan also alleges a failure to increase his salary in accordance with the award. These claims do not raised any arguable claim of contravention of any provision of the FW Act.
DISPOSITION
The only order I propose to make is to list the matter at a time and day convenient to the parties to hear submissions on the following questions:
(a)whether on the findings I have made it is open to me to consider whether Mr Sultan made any complaint or enquiry in relation to his employment and, if so, whether Mr Sultan made such complaint or enquiry in the exercise of an ability he had to make such complaint or enquiry and whether, therefore, he exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act;
(b)if (a) is answered in the affirmative, whether Mr Sultan did make any complaint or enquiry in relation to his employment and, if so, whether Mr Sultan made such complaint or enquiry in the exercise of an ability he had to make such complaint or enquiry and thus exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act; and
(c)whether it is open to me to consider Mr Sultan’s claims that the Consulate:
(i)failed to provide Mr Sultan payslips;
(ii)failed to pay superannuation;
(iii)required Mr Sultan to take annual and sick leave during the course of the year without allowing these benefits to accrue;
(iv)did not pay Mr Sultan annual leave that had accrued; and
(v)required Mr Sultan to work overtime without pay; and
(d)if (c) is answered in the affirmative, what directions, if any should be made to be in a position to hear and determine any one or more of the claims referred to in (a)-(c).
Finally, in the application Mr Sultan filed the Consulate is named “Consulate General of the Republic of Iraq”. The correct name is “Consulate General of the Republic of Iraq, Sydney”. I propose to order that the name of the Consulate stated in the application be amended to read “Consulate General of the Republic of Iraq, Sydney”.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 19 March 2021
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