Sultan v Consulate General of the Republic of Iraq, Sydney (No 2)
[2021] FCCA 1610
•16 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sultan v Consulate General of the Republic of Iraq, Sydney (No 2) [2021] FCCA 1610
File number(s): SYG 1753 of 2019 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 16 July 2021 Catchwords: INDUSTRIAL LAW – questions arising after reasons for judgment delivered – whether applicant had made claims in addition to claims based on the dismissal of his employment in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (FW Act) – such claims made – procedural orders made to have those claims determined – whether it is open to the court to consider whether matters identified in previous judgment constituted the making of complaints or inquiries in relation to employment and for that reason constituted the exercise of a workplace right – open to the court to consider because through oversight court had overlooked applicant made such claim – whether complaint or inquiries made in relation to employment – whether such claims based on some entitlement or right – complaints were made in the exercise of an ability or capacity to make complaints or alternatively the complaints were based on some entitlement or right and for that reason constituted the exercise of a workplace right – given findings made in previous judgment contravention of s 340(1) of FW Act established Legislation: Fair Work Act 2009 (Cth), ss 340(1), 341(1), 342(1), 365, 545(2)(b), 570
Federal Circuit Court Rules 2001 (Cth), rr 1.06(1), 2.04(1), 45.06, 45.07, 45.08, 45.09
Cases cited: Autodesk Inc v Dyason (No 2) (1993) 111 ALR 385
Chief of the Defence Force v Gaynor [2017] FCAFC 41
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204Gould v Mount Oxide Mines Ltd (in Liq) (1916) 22 CLR 490
Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923
Kimber v The Owners Strata Plan No. 48216 [2017] FCAFC 226
Klein v Minister for Education [2007] HCA 2
Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124
Lange v Australian Broadcasting Corporation [1997] HCA 25
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15Project Blue Sky v ABA [1998] HCA 28
Saif Ali v. Sydney Mitchell and Co. [1980] AC 198
Serobian v Commonwealth Bank of Australia [2010] NSWCA 181
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Sultan v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 498
Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499Number of paragraphs: 64 Date of hearing: 31 May 2021 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:
16 JULY 2021
THE COURT DECLARES THAT:
1.The respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) (FW Act) by notifying the applicant by letter dated 30 November 2018 that it would not renew the applicant’s contract of employment that was due to end on 31 December 2018.
THE COURT ORDERS THAT:
2.Pursuant to s 545(2)(b) of the FW Act the respondent pay the applicant compensation in the amount of USD32,400 being the loss the applicant suffered by reason of the respondent’s contravention of s 340(1) of the FW Act.
3.By 23 July 2021 the applicant may file and serve an affidavit (if any) and short written submissions in relation to the following questions:
(a)whether, during the respondent’s employment of the applicant, the respondent:
(i)failed to provide the applicant payslips;
(ii)failed to make superannuation payments; and
(iii)required the applicant to take annual and sick leave during the course of any one year without allowing any annual leave that accrued in that year to accumulate in the following year or years; and
(b)whether, by failing to do the matters referred to in (a)(i) and (a)(ii), or by requiring the applicant to do the things referred to in (a)(iii), the respondent contravened any provision of the FW Act.
4.By 6 August 2021 the respondent may file and serve an affidavit (if any) and written submissions in response to any affidavit and submissions the applicant may file pursuant to order 3.
5.The matter is listed for directions at 10:00 am on 13 August 2021.
REASONS FOR JUDGMENT
INTRODUCTION
On 19 March 2021 I delivered reasons for judgment (earlier reasons) in which I held that the applicant, Mr Sultan, led no evidence to show he made any complaint to the respondent (Consulate) about his employee entitlements.[1] I did note, however, that on the findings I made there were at least four things that could conceivably be considered to constitute Mr Sultan’s having made a complaint or inquiry in relation to his employment.[2]
[1] Sultan v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 498, at [78]
[2] Sultan v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 498, at [79]
I also noted in my earlier reasons that in his Form 2, and in his affidavit made on 30 January 2020, Mr Sultan claimed 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, but there was an issue about whether these claims formed part of Mr Sultan’s claims.
In those circumstances, at the time I published my earlier reasons, I made orders that included the following:
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 (claims in question):
(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).
I heard submissions on these questions at a hearing on 31 May 2021. In these reasons for judgment, which assume familiarity with my earlier reasons, I address these questions. It would be convenient if I first deal with the claims in question.
OPEN TO CONSIDER CLAIMS IN QUESTION?
The scope of the claims each of Mr Sultan, Ms Yalda, and Mr Al-Attar made was raised at the hearing in September 2020. The scope of Mr Sultan’s claims was first raised at the time counsel for the Consulate objected to paragraph 4 of the affidavit Mr Sultan made on 20 February 2020, which included the following (errors in original):
4. I have been dismissed because I brought the following points to my employer’s attention:
A.The Consulate did not provide pay slips to me for the duration of my employment;
B.The Consulate did not provide any Group Certificates to me, for the duration of my employment
C.The Consulate payed no tax payable to the Australian Taxation Office, for any tax required to be withheld for the duration of my employment;
D.The Consulate did not provide any annual salary increases to me, in accordance with the Award (Miscellaneous Award) as stated in the Protocol Guidelines of the Department of Foreign Affairs and Trade (10.1 Application of local labour laws) for the duration of my employment.
E.The Consulate required me to take all annual and sick leave during the course of the year and no leave can be accrued for the following year, and no payment been paid in lieu for unused annual leave.
F.Working for six hours continuously without any breaks and was forced to work overtime without pay
G.My job/role was changing to other’s advantages which has been raised with the Deputy Consul Ms Anwar on the 6/05/2018 (exhibit 2)
H.I was being treated differently than others: I brought the matter to Deputy Consul Ms Anwar in a meeting with the presence of Mr Witwit on the 7/05/2018.
I.I was being discriminated because of my age
J.Sham contracting . . . .
Counsel’s principal objection related to the words “because I brought the following points to my employer’s attention”.[3] Counsel also objected to paragraphs 4A to 4J of Mr Sultan’s affidavit on the basis of “form”, noting that “[s]ome of them are matters that aren’t really in contest”. Counsel also noted, however, that he did not want to take up any further time dealing with that objection “because it’s not really relevant whether that was the case or not to your Honour’s ultimate question”.[4] I did not then ask counsel why he submitted the matters asserted in paragraphs 4A to 4J of Mr Sultan’s affidavit of 20 February 2020 were not relevant; and I did not appreciate the grounds on which counsel submitted they were irrelevant until later in the hearing.
[3] T6.45
[4] T7.20
Counsel repeated the effect of the same submission a little later in relation to paragraph 4A of Mr Sultan’s affidavit of 20 February 2020 when the question arose whether I should permit Mr Sultan to give evidence in chief on particular matters he had failed to address in his affidavits.[5] Counsel submitted as follows:[6]
And, just stopping myself there if I may, your Honour will have noticed from our response we say there was no termination, or no dismissal, in the relevant sense because the contract of employment simply came to an end and it wasn’t renewed. There wasn’t a dismissal. But even if there was a dismissal, the question of whether or not, for example, to take (a) the consulate did or did not provide payslips is not really relevant to your Honour’s ultimate question. It’s not a fact that your Honour needs to find. And so faced with the dilemma that your Honour is faced with, and faced with the three options, in the circumstances your Honour might admit the paragraph in its form, note the objection that we have made and leave it at that.
[5] I ruled I would not permit Mr Sultan to give evidence on those matters because the Consulate’s lawyers had sent a letter to Mr Sultan requesting particulars of the relevant matters before the hearing.
[6] T11.40
Again, I did not inquire why counsel submitted it would be unnecessary for me to make any findings about the matters asserted in subparagraphs 4A to 4J of Mr Sultan’s affidavit of 20 February 2020. I became indirectly aware, however, in the course of counsel’s objections to the affidavits of Mr Al-Attar. In paragraphs 3 to 7 of his affidavit made on 30 January 2020 Mr Al-Attar asserted the Consulate did not pay him superannuation for the duration of his employment; the Consulate did not pay any tax to the Australian Taxation Office (ATO) in relation to the salary it had paid to Mr Al-Attar; the Consulate did not provide Mr Al-Attar any payslips for the duration of his employment with the Consulate; the Consulate did not provide him with any group certificate in relation to his employment with the Consulate; and the Consulate forced Mr Al-Attar to take all annual and sick leave during the course of the year without permitting Mr Al-Attar to use any accrued leave for the following year.
Counsel for the Consulate objected to these paragraphs being read. Counsel submitted they were not relevant to any claim Mr Al-Attar made in his Form 2. The basis of that submission was that, although in Part G of Form 2 Mr Al-Attar did make these claims, they were not independent claims; they were alleged as the reasons for which Mr Al-Attar claimed the Consulate had taken adverse action against him.[7] At that point I asked Mr Al-Attar questions about what he considered to be the scope of his claim. After hearing his response I ruled that I was “not going to be taking these claims”, that is the claims made in paragraphs 3 to 7 of Mr Al-Attar’s affidavit, “to be allegations of contraventions alleged”.[8]
[7] T114.30-T116.15
[8] T118.
Counsel for the Consulate in final address raised the question about the scope of the claims Mr Al-Attar, Ms Yalda, and Mr Sultan each made. Counsel submitted that what was before the Court was a “general protections claim”, and that “it would be a mistake to consider it anything other than a general protection claim”.[9] The basis of that submission was that each of the applications is “an application that is made as a general protections claim”.[10] Counsel further submitted:[11]
[Y]our Honour does need to take into account very carefully that this case has been constructed in a particular way on the apparent advise of lawyers from the beginning in the Fair Work Commission and one might think just from experience that there are very specific forensic reasons why the applicants would choose that course and those very specific forensic reasons would be the operation of section 361 of the Fair Work Act.
[9] T415.10
[10] T415.15
[11] T419.25
This part of counsel’s submissions ended with the following exchange:[12]
MR FERNON: Yes. And your Honour would appreciate obviously that those for whom I appear would be concerned about adverse comment in relation to matters that are not in contest.
HIS HONOUR: Mr Fernon, you are – I am not suggesting, without hearing anything further, of doing anything beyond what you understand to be in [contest].
MR FERNON: If your Honour pleases.
HIS HONOUR: All I am saying is in my own mind there is a doubt as to whether that is in fact how it should be restricted. If I have some real doubt about it, I think I can still deal with what’s in issue but if I have real doubt about it in some sort of way, whether it should be broader, that will be something that I will bring to the parties attention to hear submissions on. But I am only saying that just to preserve my concern and I am not suggesting – I mean, I might have been a little bit forthright in terms of how I put it to you.
MR FERNON: But I am grateful for your Honour because we can have a proper discussion.
HIS HONOUR: . . . All I am saying is I have a concern about how it’s been presented from the applicants’ side and what their expectations are and whether it is in fact correct for me to restrict it in th[at] way. And in fairness to you, it was raised at the beginning and I think I put it, I don’t know, to all of them that that’s the way they wanted to run it. All I am saying to you is if on further reflection – and I do reflect on these things very carefully – I think there’s some issue about expanding it, I will deal with the main issue, but if there is any reason I think there’s an issue as to whether it should be broader, it will be a matter for the parties to make submissions. So . . . the end result is proceed with the way that you say the case is restricted. I will proceed that way and I will give judgement on those issues. And to the extent I think it is broader, I won’t do anything further in relation to those broad issues until I hear submissions about whether I ought to. Is that something you can live with?
MR FERNON: Yes, your Honour. Thank you.
[12] T420.0-T420.35
In its written submissions (Respondent’s Further Submissions) the Consulate submits it “is apt to mislead in the context of this proceeding to describe as a ‘claim’ a reference to a failure to provide payslips or superannuation or a requirement to take all annual leave and sick leave during the course of a year without accrual”. [13] The basis of these submissions appears to be the following:[14]
Each was an assertion made by Mr Sultan in his Application which alleged dismissal in contravention of a general protection provision.
It was not necessary for Mr Sultan to prove any of these assertions in order to prosecute his general protection claim and no relief was claimed in respect of them. Whether those ‘claims’ were established was not an issue for determination in the proceeding. Those assertions have not been the subject of evidence or argument and to now consider any of them as claims in the proceeding would constitute a substantial denial of procedural fairness.
[13] Respondent’s Further Submissions, [26]
[14] Respondent’s Further Submissions, [27]-[28]
These submissions assume the point they seek to establish: that the only claim Mr Sultan made was a claim the Consulate contravened a general protections provision. Whether that is the case requires an examination of the allegations Mr Sultan made in his Form 2, the Consulate’s response to those allegations, and the evidence Mr Sultan led at the hearing.
I first turn to the allegations contained in Part G of Mr Sultan’s Form 2. It contains 8 numbered paragraphs, which may be grouped into three classes. The first class are the allegations of fact made in paragraphs 1 to 6: the Consulate did not pay superannuation; the Consulate did not pay any tax to the ATO; the Consulate did not provide any payslips; the Consulate did not provide any group certificates; the Consulate did not provide any annual salary increase; and the Consulate required Mr Sultan to take annual and sick leave during the course of the year and no leave can be accrued for the following year. The second class consists of the one allegation made in paragraph 7: “the Applicant proceeded to complain directly to the Respondent as to employee entitlements”. The third class consists of the one allegation made in paragraph 8: “As a result of the complaints, the Respondent suspended payment to the Applicant and terminated the Applicant’s employment on 30 November 2018”.
The following observations may be made:
(a)Each of the allegations made in paragraphs 1 to 6 of Part G of Form 2 stand on their own; and none of the allegations can reasonably be construed as alleging a complaint, or as alleging a reason for the Consulate having taken the action alleged in paragraph 8 of Part G.
(b)Paragraph 7 alleges the making of a complaint.
(c)Paragraph 8 alleges the reason the Consulate terminated Mr Sultan’s employment, namely, “as a result of the complaints”. The only reasonable construction of paragraph 8 is that it refers to the making of the complaint alleged in paragraph 7.
It is apparent from the Consulate’s response to Mr Sultan’s Form 2 that it regarded each of paragraphs 1 to 6 of Part G of Form 2 as making standalone allegations, unconnected with the ground on which Part G of Form 2 relies for claiming the Consulate had taken the action alleged in paragraph 8.[15]
(a)The Consulate contended it did not terminate Mr Sultan’s contract of employment; the Consulate contended it decided not to renew Mr Sultan’s contract of employment.
(b)The Consulate contented in the alternative that if it did terminate Mr Sultan’s contract of employment it did so because of Mr Sultan’s alleged abusive conduct towards his supervising manager.
(c)The Consulate specifically responded to paragraph 1 of Part G of Form 2 by contending that it “has rectified payment of superannuation entitlement to the Applicant”.
(d)The Consulate specifically responded to paragraph 5 of Part G of Form 2 by contending Mr Sultan does not identify any award that applied to Mr Sultan or that he was entitled to any increase in his salary.
(e)The Consulate specifically responded to the allegation made in paragraph 6 of Part G of Form 2 by contending that Mr Sultan’s annual leave and sick leave were governed by the terms of his contract which provided for annual leave and sick leave in the period 2 January 2018 and 31 December 2018 “and with which the Respondent complied”.
[15] Response to Application in relation to dismissal from employment in contravention of a General Protection (Fair Work Act)
The Consulate did not specifically respond to the allegations made in paragraphs 2 (not paying tax), paragraph 3 (not providing pay slips), and paragraph 4 (not providing group certificates) of Part G of Form 2. I do not infer, however, the Consulate did not specifically respond to these paragraphs because it considered them to be irrelevant. A more plausible explanation is that the Consulate does not dispute the allegations made in paragraphs 2, 3, and 4 of Part G of Form 2. In other words, the more plausible explanation is that these are the allegations counsel for the Consulate had in mind as not being “really in contest".
Quite apart from Part G of Form 2, Mr Sultan signalled that he intended to allege the Consulate failed to provide him with payslips, and it failed to do the other matters alleged in paragraphs 1 to 6 of Part G of Form 2. In his affidavit of 20 February 2020 Mr Sultan deposed to matters that included matters to the effect asserted in Part G of Form 2. It is true that in paragraph 4 of his affidavit, made on 20 February 2020, these matters were prefaced with the words “I have been dismissed because I brought the following points to my employer’s attention”; but on a fair reading of paragraph 4 the matters identified in paragraphs 4A to 4J are stated as allegations of fact.
It is also true that Form 2 is a form the Chief Judge of this Court has approved for the purpose of r 45.06(b)(ii) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), which applies to applications for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the FW Act. That by itself, however, ought not necessarily lead a reasonable reader of a Form 2 to assume that the only claim a person intends to make by lodging such a form is restricted to the termination of employment.
(a)First, although r 45.09 of the FCC Rules provides that an application for an order in relation to an alleged contravention of the FW Act not mentioned in r 45.06 of the FCC Rules,[16] r 45.07 of the FCC Rules,[17] or r 45.08 of the FCC Rules,[18] must be in accordance with the approved form, no form has been approved for the purposes of r 45.09 of the FCC Rules.
(b)Second, r 2.04(1) of the FCC Rules provides that, unless the Court otherwise orders, strict compliance with an approved form is not required; substantial compliance is sufficient. Thus, even if there were a form prescribed for the purpose of r 45.09 of the FCC Rules, there would, at the very least, have been a question whether the inclusion of the standalone allegations made in paragraphs 1 to 6 of Part G of Form 2 would have constituted substantial compliance with any form prescribed for the purpose of r 45.09 of the FCC Rules.
(c)Third, even where there has not been substantial compliance with any prescribed form, the Court has power under r 1.06(1) of the FCC Rules to dispense with the requirements of r 45.09 of the FCC Rules that the applications referred to in those rules be in the approved form, if the Court were satisfied it would be in the interests of justice to dispense with those requirements.
[16] Which applies to applications for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the FW Act
[17] Which applies to an application for an order in relation to an alleged unlawful termination of an employee's employment that occurred on or after 1 July 2009
[18] Which applies to an application for an order in relation to an alleged contravention, or an alleged proposed contravention, of a general protection mentioned in Part 3-1 of the FW Act other than that mentioned in r 45.06
I should also refer to the Consulate’s submission that Mr Sultan claims no relief in relation to the claim that the Consulate did not provide payslips to Mr Sultan. In Part H of Form 2, which is headed “Remedy sought”, Mr Sultan ticked the box that appears to the left of “Pecuniary penalty”. The Consulate’s submission, therefore, rests on the Form 2 being construed as Mr Sultan making one claim, namely, a contravention of a general protection provision. For reasons I have given, that is not a reasonable construction of Mr Sultan’s Form 2.
Finally, there is the submission counsel for the Consulate made at the hearing in September 2020 that “this case has been constructed in a particular way on the apparent advice of lawyers from the beginning in the Fair Work Commission”.[19] The substance of this submission was repeated at the hearing on 31 May 2021. It is true Mr Sultan, Ms Yalda, and Mr Al-Attar were represented by lawyers before the Fair Work Commission (FWC). But there is nothing to suggest that any lawyer advised or otherwise assisted Mr Sultan, Ms Yalda, or Mr Al-Attar in relation to the proceedings they commenced in this Court; the overwhelmingly probable inference that is available to be drawn is that Mr Sultan prepared and commenced the proceeding in this Court without any legal assistance. It is therefore not open to me to find that Mr Sultan’s Form 2 was prepared in a “particular way” such as to require it to be read as conveying anything other than the meaning its language, reasonably construed, conveys. Further, that Mr Sultan only brought before the FWC a general protections claim cannot reasonably support an inference that Mr Sultan intended to restrict his claims before this Court to a general protections claim. Mr Sultan applied to the FWC because he was required to do so under s 365 of the FW Act; and the FWC’s jurisdiction under that section is limited to conciliating disputes where a person alleges he or she “was dismissed in contravention of this Part”, that is, Part 3-1, which is headed “General Protections”.
[19] T419.25
Having considered Part G of Mr Sultan’s Form 2, the Consulate’s response, and Mr Sultan’s affidavit, there is no doubt in my mind that paragraphs (i), (ii), and (iii) of the claims in question have always formed part of Mr Sultan’s claim, and I ought to have determined those claims when I determined the matters that are the subject of my earlier reasons. I am not satisfied, however, that paragraphs (iv) and (v) of the claims in question formed part of Mr Sultan’s claims.
Given I am satisfied that paragraphs (i), (ii), and (iii) of the claims in question have always formed part of Mr Sultan’s claims, it is not necessary that I make any orders permitting Mr Sultan to amend his application. Further, it may be that on the current state of the evidence there would be no need for Mr Sultan to file any additional evidence relevant to my determining any of paragraphs (i), (ii), and (iii) of the claims in question; and, for that reason, it may not be necessary to grant Mr Sultan leave to reopen his case.
It remains the case, however, that in response to submissions made by counsel for the Consulate, I decided I would not consider paragraphs (i), (ii), and (iii) of the claims in question without hearing further submissions about whether paragraphs (i), (ii), and (iii) of the claims in question did form part of Mr Sultan’s claims, and, if not, whether I should permit the parties leave to adduce further evidence. In those circumstances, it would be just to permit the parties to file additional evidence together with written submissions in relation to the claims in question. I propose, therefore, to make orders to the following effect:
(a)Within one week after the day I pronounce orders, Mr Sultan file and serve an affidavit (if any) and submissions in support of any of paragraphs (i), (ii), and (iii) of the claims in question.
(b)Within three weeks after the day I pronounce orders the Consulate file and serve any affidavit and any written submissions in relation to paragraphs (i), (ii), and (iii) of the claims in question.
(c)The proceeding be listed for a directions hearing.
OPEN TO CONSIDER WHETHER COMPLAINTS OR INQUIRIES MADE?
Before I consider the parties’ submissions on whether it is now open to me to consider whether any of the four things I identify in paragraph 79 of my earlier reasons could conceivably constitute Mr Sultan’s making a complaint or inquiry in relation to his employment, it would be convenient if I first identify principles that are relevant to the propriety of my having identified the question in the first place. I do so because the Consulate may be taken to have implicitly submitted that I ought not to have raised the question.
Principles relevant to propriety of raising the question
I begin with Lord Wilberforce’s observation in Saif Ali v. Sydney Mitchell and Co that “Judges are more than mere selectors between rival views - they are entitled to and do think for themselves”.[20] Judges have referred to these observations in the context of construing statutory texts. In Project Blue Sky v ABA, for example, Brennan J said that “the interests of persons concerned in the litigation and the assumptions made in the rival submissions cannot divert the Court from its duty to construe the statute”;[21] and in Klein v Minister for Education Kirby J said that no “party, by its process or arguments, can impose on this Court an incorrect application of the law”.[22] Judges, however, have referred to Lord Wilberforce’s observations in other contexts. Thus, in Autodesk Inc v Dyason Dawson J said:[23]
And it should be added that even though a party fails to present his case in a manner which is open on the pleadings and on the facts, a final appellate court with responsibility to determine the law cannot be precluded from disposing of a case upon the basis which appears to it to be correct. This is particularly so where matters not raised on appeal have been raised in the courts below. “Judges are more than mere selectors between rival views - they are entitled to and do think for themselves.” ((37) Saif Ali v. Sydney Mitchell and Co. (1980) AC 198, per Lord Wilberforce at p 212)
[20] Saif Ali v. Sydney Mitchell and Co. [1980] AC 198, at page 212
[21] Project Blue Sky v ABA [1998] HCA 28, at [13]
[22] Klein v Minister for Education [2007] HCA 2, at [38]
[23] Autodesk Inc v Dyason (No 2) (1993) 111 ALR 385, at page 399
These passages manifest a broader principle. A court’s jurisdiction in any given case is limited to deciding the issues parties elect to litigate, and on the basis of the evidence the parties adduce. Within those limits, subject always to according the parties procedural fairness, and to having regard to the manner in which the parties have conducted their cases, a court’s duty is to dispose of the case before it “upon the basis which appears to it to be correct”.[24] This broad principle underpins, and is reinforced by, rules governing the professional practice of lawyers.[25]
[24] Autodesk Inc v Dyason (No 2) (1993) 111 ALR 385, at page 399
[25] See, for example, r 29 of the Legal Profession Uniform Conduct (Barristers) Rules 2015
A court’s duty to decide the issues before it on the basis that appears to it to be correct applies whether or not the parties are legally represented. That means that in cases where one of the parties is not legally represented, the judge’s inviting submissions about a question of law, or about the application of the law to the evidence or facts of the case, or about inferences that are available to be drawn from evidence that has been adduced, should not automatically be characterised as the judge rendering assistance to the unrepresented party where the invitation for submissions relates to matters that could potentially assist the unrepresented party’s case. Where the propriety of a judge’s inviting such submissions comes into question, the first question that ought to be asked is not whether the judge is seeking to provide assistance to the unrepresented litigant, but whether the invitation for submissions constitutes the judge’s seeking to discharge his or her duty to dispose of the case before him or her on the basis which appears to the judge to be correct, having regard to the manner in which the parties have conducted their cases and the requirements of the principles of procedural fairness.
It is true that a court may come under additional duties in relation to unrepresented litigants. But duties that arise when one party is not legally represented do not necessarily fall only on the court. In some circumstances a duty attaches to the lawyers of the represented party to assist the court. This point was made by the New South Wales Court of Appeal in Serobian v Commonwealth Bank of Australia:[26]
Where, as here in the case of the respondent, a party is represented by competent and experienced lawyers and is opposed by litigants in person, the party and its lawyers have a duty to assist the court to understand and give full and fair consideration to the submissions of the litigants in person. In particular such a party must refer the court to evidence in the proceedings that is relevant to those submissions. This duty is accentuated where, again as here, the party is a substantial institution accustomed to litigating cases involving issues such as are involved in the present case, often against litigants in person.
[26] Serobian v Commonwealth Bank of Australia [2010] NSWCA 181, at [42]. See also Kimber v The Owners Strata Plan No. 48216 [2017] FCAFC 226, at [70]
I raised the question whether any of the four things I identify in paragraph 79 of my earlier reasons could conceivably constitute Mr Sultan’s making a complaint or inquiry in relation to his employment in an attempt to discharge my duty to dispose of the case before me on the basis that appears to me to be correct; and I did so having regard to the principles of natural justice and on the basis that I could only consider those questions having regard to the manner in which the parties have conducted their cases. As will appear shortly, my consideration of that question has resulted in my becoming aware that in my earlier reasons I overlooked part of a claim Mr Sultan did, in fact, make.
Parties’ submissions
In his written submissions dated 24 May 2021 Mr Sultan says that “the basis of my unfair dismissal case against” the Consulate “was due to discrimination”; and, not “having a legal background nor legal representation”, Mr Sultan was “not aware of what would constitute as making a complaint or enquiry regarding my employment”. Mr Sultan then submits that each of the four things I identify in paragraph 79 of my earlier reasons constituted the making of a complaint or inquiry in relation to his employment, or both.
In its written submissions the Consulate submits it is not open to me to consider whether, on the findings I made in my earlier reasons, Mr Sultan made any complaint or inquiry, other than the complaint Mr Sultan alleges in his Form 2 (Complaints and Inquiries Question).[27] The Consulate submits Mr Sultan’s claim should be dismissed, and that an order should be made against him under s 570 of the FW Act because Mr Sultan instituted the proceeding without reasonable cause.[28] The Consulate further submits as follows:
(a)Mr Sultan has not raised any issue regarding complaints or inquiries; nor did Mr Sultan’s lawyer “when [Mr Sultan] was legally represented”. On the contrary the “Court has raised the questions as to whether other circumstances constitute complaint or enquiry and the exercise of a workplace right which extend beyond the case that has been advanced by Mr Sultan”.[29]
(b)To now consider whether there was “another complaint and exercise of a workplace right would visit a significant disadvantage and prejudice” to the Consulate; and it would, therefore, “constitute a substantial denial of procedural fairness” to the Consulate. That would be particularly so given “the Court has found that it did not accept the evidence of Mr Witwit”.[30]
(c)My considering the Complaints and Inquiries Question might give rise to a reasonable apprehension of bias, given I did not accept Mr Witwit’s evidence.[31]
(d)My considering the Complaints and Inquiries Question would “re-define or formulate a case, or another case” and, for that reason, would go beyond the assistance a court could legitimately provide to an unrepresented litigant.[32]
(e)My considering the Complaints and Inquiries Question would require Mr Sultan’s case to be re-opened.[33]
[27] Respondent’s Further Submissions, [4]
[28] Respondent’s Further Submissions, [5]
[29] Respondent’s Further Submissions, [15]
[30] Respondent’s Further Submissions, [16]
[31] Respondent’s Further Submissions, [17]
[32] Respondent’s Further Submissions, [24]
[33] Respondent’s Further Submissions, [11]
Determination
The principal questions that arise are whether, as the Consulate submits, Mr Sultan raised any issue regarding complaints or inquiries, and whether, as the Consulate also submits, I have “raised the questions as to whether other circumstances constitute complaint or enquiry and the exercise of a workplace right which extend beyond the case that has been advanced by Mr Sultan”.[34]
[34] Respondent’s Further Submissions, [15]
The only complaint Mr Sultan identifies in his Form 2 is that stated in paragraph 7 of Part G – a complaint made “directly to the Respondent as to employee entitlements”; and in my earlier reasons I found there was no evidence Mr Sultan made any such complaint. But that is not the end of the matter. In paragraph 4 of his affidavit made on 20 February 2020 (which repeats paragraph 4 of his affidavit made on 30 January 2020) Mr Sultan deposed as follows:
I have been dismissed because I brought the following points to my employer’s attention:
. . . .
G.My job/role was changing to others’ advantages which has been raised with the Deputy Consul Ms Anwar on the 6/05/2018 (exhibit 2).
H.I was being treated differently than others: I brought the matter to Deputy Consul Ms Anwar in a meeting with the presence of Mr Witwit on the 7/05/2018.
The exhibit referred to in paragraph 4G of Mr Sultan’s affidavit is the email to which I refer in paragraph 13 of my earlier reasons. The meeting referred to in paragraph 4H of Mr Sultan’s affidavit is the meeting to which I refer in paragraph 14 of my earlier reasons, and in relation to which I made the findings contained in paragraph 16 of my earlier reasons. The email and the meeting are two of the four things I identified in paragraph 79 of my earlier reasons “that could conceivably be considered to constitute Mr Sultan’s making a complaint or enquiry in relation to his employment”.
When preparing my earlier reasons, I did not refer to paragraphs 4G and 4H of Mr Sultan’s affidavit; and that is because I had overlooked them. My omission is an error. Had I not made the error I would have considered whether the email Mr Sultan sent on 6 May 2018 (to which I refer in paragraph 13 of my earlier reasons), and whether what I found Mr Sultan said at the meeting of 7 May 2018 (to which I refer in paragraph 16 of my earlier reasons) constituted Mr Sultan having made a complaint or inquiry in relation to his employment. Notwithstanding my error, I have invited and received submissions about whether it is open to me to consider whether these two matters, together with the other two things I identified in paragraph 79 of my earlier reasons, constituted Mr Sultan’s making a complaint or inquiry in relation to his employment; and I must now consider those submissions.
In submitting Mr Sultan did not raise any issue regarding complaints or inquiries, and that it is I who “raised the questions as to whether other circumstances constitute complaint or inquiry and the exercise of a workplace right which extend beyond the case that has been advanced by Mr Sultan”,[35] the Consulate did not refer to paragraphs 4G or 4H of Mr Sultan’s affidavit. There may be two reasons why the Consulate has not done so. The first is the Consulate may be relying on the following submissions made in its written submissions filed on 4 September 2020:[36]
While Mr Sultan states that he brought ‘points’ to his employer’s attention – Sultan at [4] there is no evidence of how or to whom this was done. The Court would not accept that any ‘points’ as specified were brought to Mr Witwit’s attention as the decision maker. The Court has no evidence of any communication and would not be satisfied that any such ‘point’ were made to the employer.
[35] Respondent’s Further Submissions, [15]
[36] Respondent’s Outline of Submissions, [30]
It was not, and is not, open to the Consulate to rely on these submissions to the extent the Consulate intended or intends them to apply to paragraphs 4G and 4H of Mr Sultan’s affidavit. The Consulate led evidence in relation to those matters. In his affidavit Mr Witwit referred to and annexed Mr Sultan’s email of 6 May 2018, and Mr Witwit deposed to his having received a copy of the email from Ms Alesi “on or around 6 May 2018”.[37] Mr Witwit also deposed that he met with Mr Sultan and Ms Alesi on 7 May 2018 in which Mr Sultan said words to the effect that he was being treated unfairly. Further, counsel for the Consulate cross-examined Mr Sultan about his email and the meeting of 7 May 2018. The cross-examination included the following:[38]
[37] Affidavit AMB Witwit 12.06.2020, [34]
[38] T41.1-T43.10
Would you go to your second affidavit, please? And could you go to the document which is exhibit 2 in your affidavit?‑‑‑Yes.
Now, that is a communication from yourself to Ms Anwar?‑‑‑That is correct, yes.
And you were raising with Ms Anwar your concern about the transfer from the visa section to the power of attorney section?‑‑‑That’s correct.
. . . .
Well, it’s certainly the case, isn’t it, that you objected to that transfer?‑‑‑I objected at that time, yes.
You said the decision was unfair and you felt that you were being disadvantaged?‑‑‑That’s correct.
You asked for a reconsideration of the decision?‑‑‑That’s correct. It’s written in the letter.
Then, after you sent the letter, you had a meeting with Mr Witwit and others?‑‑‑The next day.
And at that time, there was a discussion regarding the position of you working in the passport section, wasn’t there?‑‑‑I had a meeting the next day with Ms Anwar. . . .
I am suggesting that Mr Witwit was also there the next day at the meeting?‑‑‑That’s correct, yes.
And you stated again at that meeting that you were being treated unfairly?‑‑‑That’s correct.
And Mr Witwit had said to you that you weren’t being treated unfairly, correct?‑‑‑Mr Witwit, he said with a – like, order. Not look what you are saying it, “You are not being treated unfairly”, no.
Are you telling his Honour that Mr Witwit did not say to you words to the effect that, “You are not being treated unfairly”?‑‑‑I cannot recall these words, no. I cannot, no.
But it’s possible that Mr Witwit said to you that you weren’t being treated unfairly?‑‑‑No, he said stronger word. That’s why I reply to him with – a different way.
What way do you say that you replied to Mr Witwit?‑‑‑It is not the time to. I not say it now.
I’m asking you what you say that you said to Mr Witwit at that time. Could you tell his Honour, please?‑‑‑I cannot tell you now.
. . . .
What do you say you said to Mr Witwit at that meeting?‑‑‑I said to Mr Witwit, “You are not the head of this meeting. Please don’t talk”.
Counsel for the Consulate did not, in his closing address at the hearing in September 2020, refer to Mr Sultan’s email of 6 May 2018, or to Mr Witwit’s evidence that he had received it on 6 May 2018, or to Mr Witwit’s evidence that at the meeting of 7 May 2018 Mr Sultan claimed he had been treated unfairly, or to the evidence Mr Sultan gave about these matters under cross-examination. The following is the only submission counsel made about Mr Sultan’s having made any complaint or inquiry in relation to his employment:[39]
I will make a short submission about the making of complaints, in the broad, we submit, your Honour wouldn’t be – your Honour wouldn’t accept on the evidence that complaints were made. Your Honour would certainly not accept on the evidence that any complaint was made of which Mr Witwit was aware, being the uncontested decision maker.
[39] T425.30
The second possible reason why the Consulate has not referred to paragraphs 4G and 4H of Mr Sultan’s affidavit of 20 February 2020 may be that Mr Sultan did not make that claim in his Form 2. If that is a ground on which the Consulate relies, I would not accept it. As I have already noted, the Consulate adduced evidence from Mr Witwit in which he refers to the 6 May 2018 email, and to his attending the meeting on 7 May 2018; and counsel for the Consulate cross-examined Mr Sultan about these matters. In those circumstances, and assuming Mr Sultan’s Form 2 and the Consulate’s response can be equated with pleadings, the principles stated by Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd (in Liq) apply:[40]
[P]leadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. There is abundant authority for this, even if the matter were required to rest on authority only.
[40] Gould v Mount Oxide Mines Ltd (in Liq) (1916) 22 CLR 490, at page 517
I find that by relying on paragraphs 4G and 4H of his affidavit Mr Sultan claimed that the matters he communicated in his email of 6 May 2018, and the matters he says he brought to the attention of Mr Witwit in the meeting of 7 May 2018, constituted his making complaints or inquiries or both in relation to his employment, and that his employment was terminated for reasons that included those matters. This claim formed part of Mr Sultan’s case at least from the time he filed his affidavit of 30 January 2020, and it is only through inadvertence on my part that I failed to address paragraphs 4G and 4H of Mr Sultan’s affidavit in my earlier reasons.
I therefore do not accept the Consulate’s submission, to the extent it may be taken to relate to the matters identified in paragraphs 4G or 4H of Mr Sultan’s affidavit, that Mr Sultan did not raise any issue regarding complaints or inquiries. Nor do I accept, therefore, that my referring to these two matters in paragraph 79 of my earlier reasons constitutes my raising “the questions as to whether other circumstances constitute complaint or inquiry and the exercise of a workplace right which extend beyond the case that has been advanced by Mr Sultan”;[41] or that my deciding to determine those two matters would “re-define or formulate a case, or another case” and, for that reason, would go beyond the assistance a court could legitimately provide to an unrepresented litigant.[42] The two matters are matters Mr Sultan first raised when he filed his affidavit of 30 January 2020. Further, although it cannot be said that in any of the submissions the Consulate made at the hearing in September 2020, either in writing or in oral address, the Consulate engaged with those claims, there is no question that, at the level of evidence, the Consulate fully engaged with the claims Mr Sultan made in those paragraphs: the Consulate led evidence, and Mr Sultan was cross-examined, in relation to the matters Mr Sultan identified in paragraphs 4G and 4H of his affidavit; and the Consulate adduced evidence of the reasons the Consulate says it did not renew Mr Sultan’s contract of employment.
[41] Respondent’s Further Submissions, [15]
[42] Respondent’s Further Submissions, [24]
No question of unfairness to the Consulate arises if I determine whether any, or any part, of the matters identified in paragraphs 4G and 4H of Mr Sultan’s affidavit constituted Mr Sultan’s making a complaint or inquiry or both in relation to his employment. On the contrary, it would be an error if I were not to determine those matters; and dismissing this part of Mr Sultan’s claims without considering those matters would render the dismissal impeachable on appeal. That is so because paragraphs 4G and 4H of Mr Sultan’s affidavit formed part of his case from at least 30 January 2020, and I had failed to appreciate that fact at the time I prepared my earlier reasons.
The other two things I identified in paragraph 79 of my earlier reasons – the statement I found Mr Sultan made in the meeting of 20 April 2018, and the matters Mr Sultan stated in his email of 6 September 2018 – are not events Mr Sultan included in his affidavit of 20 February 2020. For that reason, I am not prepared to find that Mr Sultan claimed or could reasonably be taken to have claimed they are events that constituted his making a complaint or inquiry in relation to his employment. I do not propose to consider, therefore, whether these two matters constituted Mr Sultan’s making a complaint or inquiry in relation to his employment.
DID MR SULTAN MAKE A COMPLAINT OR INQUIRY?
In my earlier reasons, I noted that the word “complaint” in s 341(1)(c)(ii) of the FW Act is a statement expressing a grievance or a finding of fault; and that an expression of grievance or accusation need not be factually correct, substantiated, or ultimately made out to constitute a complaint within the meaning of s 341(1)(c)(ii) of the FW Act.[43] I also noted that the ordinary meaning of “inquiry” is the act of seeking information about or concerning something.[44]
[43] Sultan v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 498, at [68], referring to Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, at [600]
[44] Sultan v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 498, at [68], referring to the Oxford English Dictionary
In his email of 6 May 2018 Mr Sultan stated he expected to be given due respect, and that the decision to transfer Mr Sultan from the Visa and Passport section to the Power of Attorney section was unfair and he was being disadvantaged. These are statements of grievance. Mr Sultan repeated the substance of these statements in the meeting of 7 May 2018. These, too, are statements of grievance. Further, the statements of grievance related to Mr Sultan’s employment; they related to the Consulate’s decision to transfer Mr Sultan from one division of the Consulate to another. I find, therefore, that each of these statements constituted Mr Sultan making a complaint in relation to his employment.
Complaints based on entitlement or right?
The Consulate does not submit that statements Mr Sultan made in his email of 6 May 2018, or the statements I found he made in the meeting of 7 May 2018, do not constitute Mr Sultan making a complaint or inquiry in relation to his employment. The Consulate submits that to the extent any of the findings contained in my earlier reasons can be characterised as the making of a complaint or an inquiry, the complaint or inquiry was not grounded on any legislative or contractual term, and, for that reason, the complaint or inquiry is not one that falls within the terms of s 341(1)(c)(ii) of the FW Act.[45] The Consulate relies on the judgment of Rangiah and Charlesworth JJ in PIA Mortgage Services Pty Ltd v King.[46] The Consulate submits that in “the most recent consideration by a Full Court of s 341(1)(c) Rangiah and Charlesworth JJ noted that there are three potential sources of an employee’s ability to make complaints within s 341(1)(c), being legislative provisions that are not workplace laws, contractual terms providing a right to make complaints and the general law”.[47]
[45] Respondent’s Further Submissions, [9]
[46] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
[47] Respondent’s Further Submissions, [8], referring to PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, at [16]
The Consulate is incorrect in submitting that the judgment of Rangiah and Charlesworth JJ in PIA Mortgage is the most recent consideration by a Full Federal Court of s 341(1)(c) of the FW Act. At paragraph 68 of my earlier reasons I referred to the judgments in the later Full Federal Court decision in Cummins South Pacific Pty Ltd v Keenan.[48] I there noted that all three justices in Cummins were of the view that all three justices in PIA Mortgage construed “is able” in s 341(1)(c)(ii) of the FW Act as requiring a complaint to be “underpinned by a right or entitlement” to make it.[49] I also noted, however, that in Cummins Bromberg and Mortimer JJ were of the view that that construction was incorrect, and said their Honours would have refused to follow that construction if that would have been necessary to dispose of the appeal.[50]
[48] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
[49] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [64] (Bromberg J), [209] (Mortimer J), [286] (Anastassiou J)
[50] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 at [67] (Bromberg J), [209] (Mortimer J)
The view that the expression “is able to make a complaint or inquiry . . . in relation to his or her employment” in s 341(1)(c)(ii) of the FW Act requires that the ability be “underpinned by an entitlement or right” is based on the judgment of Dodd-Streeton J in Shea v TRUenergy Services Pty Ltd (No 6).[51] In Henry v Leighton Admin Services Pty Ltd & Anor I reviewed the authorities as they then stood on the meaning of “is able”,[52] and I concluded that the construction favoured by Dodds-Streeton J in Shea did not reflect any settled construction in the Federal Court or elsewhere of the words “is able” in s 341(1)(c)(ii) of the FW Act.[53] I further concluded that it was open to me to construe for myself the meaning of “is able”. I concluded:[54]
A person has a workplace right within the meaning of s.341(1)(c)(ii) if the person has the capacity or capability to make a complaint or inquiry about the person’s employee rights and obligations or about matters which may prejudice the person in his or her employment. A person will exercise such workplace right if the person makes a complaint or inquiry about his or her employment rights and obligations, or if the person makes a complaint or inquiry about a subject that may prejudice the person in his or her employment.
[51] Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, at [625]
[52] Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923, at [51]-[78]
[53] Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923, at [73]
[54] Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923, at [77]
Given the judgments of Bromberg and Mortimer JJ in Cummins, it remains the case that the construction favoured by Dodds-Streeton J in Shea does not reflect any settled construction in the Federal Court or elsewhere of the words “is able”in s 341(1)(c)(ii) of the FW Act. I find, therefore, that it remains open to me to construe “is able” in the manner I did in Henry. On that construction, I find that at the time Mr Sultan made his complaints on 6 and 7 May 2018 in relation to his employment with the Consulate, Mr Sultan had the capacity or capability to make such complaints and, for that reason, he was able to make a complaint in relation to his employment and, therefore, had a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act. I further find that by making those complaints, Mr Sultan exercised that workplace right.
I will assume, however, that the construction Rangiah and Charlesworth JJ in PIA Mortgage give to the words “is able” reflects the settled construction of “is able”. That will require me to examine their Honours’ reasons, the elements of which may be summarised as follows:
(a)The expression “is able” “refers to an entitlement or a right”, and that “entitlement or a right” must be a right to “make a complaint”.[55]
(b)There must be “an identifiable source of that entitlement or right”.[56]
(c)It is not necessary, however, that the entitlement or right arise “under any instrument such as legislation, an industrial instrument, or a contract of employment”; nor is it necessary that the entitlement of right “be conferred expressly or directly by the source”.[57]
(d)There are three obvious potential sources of an employee’s ability to make complaints that fall outside s 341(1)(a), s 341(1)(b) and 341(1)(c)(i) of the FW Act, but fall within s 341(c)(ii). Those sources are “legislative provisions that are not workplace laws, contractual terms providing a right to make complaints and the general law”.[58]
(e)An example of a right or entitlement to make a complaint is that conferred by the general law of contract to sue for a breach of contract; that general right underpins the entitlement to complain about a breach of a contract of employment.[59]
(f)Given the “variety of circumstances arising in employment law cases is notoriously wide”, nothing Rangiah and Charlesworth JJ have said in their judgment “is intended to foreclose argument as to other circumstances that may give rise to an ability to make a complaint”.[60]
[55] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, at [13]
[56] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, at [14]
[57] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, at [14]
[58] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, at [16]
[59] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, at [26]
[60] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, at [27]
Their Honours do not say that “entitlement or a right” constitutes the ordinary meaning of “is able”; and their Honours do not identify the process of construction by which “is able” is given the meaning “entitlement or a right”. According to the Oxford English Dictionary, when used predicatively with an infinitive (which is the use of “is able” in s 341(1)(c) of the FW Act), the phrase means “having the means, capacity, or qualifications to do something; having sufficient power; in such a position that a particular action is possible; worthy, qualified, competent, capable”. The Oxford English Dictionary does refer to “able” as also meaning “legally capable or qualified”, but this usage is said to be obsolete.
Mr Sultan’s contract of employment did not include an express term entitling him to make a complaint or inquiry in relation to his employment. Although Mr Sultan was able to complain about the Consulate’s breaching his contract of employment, Mr Sultan’s complaints that the Consulate treated him unfairly and in a manner that disadvantaged him cannot be characterised as a complaint that the Consulate has, or may have, breached his contract of employment. It may then be asked whether there is anything else under the general law that could be characterised as conferring an entitlement or right on Mr Sultan to have made the complaints I have found he made in relation to his employment. In my opinion, there is; and that is the principle that “[u]nder a legal system based on the common law, ‘everybody is free to do anything, subject only to the provisions of the law’”.[61] This principle was stated in connection with speech and communication, and, although it applies generally, it is particularly apt to the context of s 341(1)(c) of the FW Act. That paragraph refers to the making of a complaint or inquiry, being acts that can only be effected by speech and other forms of communication.
[61] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520,at pages 564-565
It is true that the freedom to communicate does not by itself equate with a right to communicate, such that any interference with or denial of a person’s freedom to communicate is actionable in a court.[62] The freedom to communicate, however, is something that is capable of being protected by law; and that, in fact, may be taken to be the purpose of s 341(1)(c)(ii) of the FW Act defining as a workplace right an employee’s being able to make a complaint or an inquiry in relation to his or her employment. The purpose is to protect the freedom an employee has to communicate in a particular context, namely, in his or her employment; and the particular freedom that is protected is the freedom to communicate a complaint or an inquiry in relation to employment. That freedom is protected by s 340(1) of the FW Act prohibiting an employer from taking adverse action against the employee when an employee exercises that freedom.
[62] See, for example, Chief of the Defence Force v Gaynor [2017] FCAFC 41
To the extent, therefore, it is necessary for Mr Sultan to identify some source that entitled him or gave him the right to make the complaints I found he made, I find Mr Sultan was entitled to make those complaints. The source of his entitlement is the freedom all persons have to communicate. I find, therefore, that at the time Mr Sultan made his complaints in relation to his employment with the Consulate on 6 and 7 May 2018, Mr Sultan was entitled to make such complaints and, for that reason, he was able to make a complaint in relation to his employment and, therefore, had a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act. I further find that, by making those complaints, Mr Sultan exercised that workplace right.
“Employee” not “prospective employee”
The Consulate also submitted that s 341(1)(c)(ii) of the FW Act only applies to an “employee”, not to a “prospective employee”.[63]
[63] Respondent’s Further Submissions, [6]
It is true that s 341(1)(c)(ii) of the FW Act applies to an “employee”. Section 340, however, prohibits “a person” from taking adverse action against “another person”. The relevant persons are identified in the table to s 342(1) of the FW Act. The persons include a “prospective employer” and a “prospective employee”. In my earlier reasons I concluded that persons can at the same time be actual and prospective employers and employees. A person, being a prospective employer, who refuses to employ a person who is a prospective employee because the prospective employee, when an employee of the prospective employer, exercised a workplace right, takes adverse action against that person within the meaning of s 342(1) of the FW Act. That is what Tracey J accepted had occurred in Kweifio-Okai v Australian College of Natural Medicine (No 2):[64]
The decision to suspend the applicant altered his position to his prejudice and the refusal to re-engage him amounted to a refusal to employ a prospective employee. Both steps, as the applicant contended and the respondent conceded, constituted adverse action as defined by s 342(1) of the Act.
[64] Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124, at [12]
Conclusion
I have concluded that by Mr Sultan:
(a)stating in his email sent on 6 May 2018 that he expected to be given due respect, and that the decision to transfer Mr Sultan from the Visa and Passport section to the Power of Attorney section was unfair and he was being disadvantaged; and
(b)stating at his meeting on 7 May 2018 that he was being treated unfairly,
Mr Sultan made complaints in relation to his employment and, in so doing, exercised his workplace rights.
Given that in my earlier reasons I found that the Consulate’s decision not to renew Mr Sultan’s contract constituted the Consulate’s taking of adverse action against Mr Sultan, and I did not accept Mr Witwit’s evidence of the reasons he gave for not renewing Mr Sultan’s employment, s 361 of the FW Act applies. I must therefore presume that the Consulate took such adverse action against Mr Sultan for reasons that included Mr Sultan’s having exercised his workplace rights by making the complaints in relation to his employment that I have found Mr Sultan made. That, in turn, means the Consulate has contravened s 340(1) of the FW Act.
COMPENSATION
Mr Sultan claims compensation for the amounts he identifies in paragraph 10 of his affidavit of 20 February 2020. Mr Sultan claims two amounts. The first is $102,689.74 for economic loss. This amount, the calculation of which is in exhibit 9 to Mr Sultan’s affidavit of 30 January 2020, represents the wages (converted to Australian dollars) Mr Sultan would have earned up to the time he made his affidavit, and the wages Mr Sultan would have continued to earn, had he remained employed with the Consulate, subject to a discount of 15% for exigencies. The second amount Mr Sultan claims is $47,000 “for pain and suffering”.
I have set out elsewhere the principles for assessing compensation for economic loss arising out of a contravention of a provision of the FW Act, and I will not repeat those principles here.[65] Given the matters I have identified in paragraph 75 of my earlier reasons, I find that, had the Consulate not contravened s 340(1) of the FW Act, Mr Sultan would have applied to have his contract renewed, and the Consulate would have decided to renew Mr Sultan’s contract for a year commencing on 1 January 2019. I am also satisfied, again, given the matters I identified in paragraphs 75 of my earlier reasons, that the Consulate would have renewed Mr Sultan’s contract of employment for the year commencing 1 January 2019. Although there would have been some prospect of the Consulate further renewing Mr Sultan’s contract for the year commencing 1 January 2020, I am not satisfied that the possibility of such renewal is sufficiently significant to warrant the award of compensation for the period after 1 January 2020.
[65] See, for example, Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499, at [151], [152]
I am therefore satisfied that the fair measure of the economic loss Mr Sultan suffered because of the Consulate’s contravention of s 340(1) of the FW Act is an amount that reflects 12 months’ worth of salary, inclusive of interest. Given Mr Sultan was paid a monthly salary of USD2,700, I propose to order that the Consulate pay to Mr Sultan USD32,400, which represents his annual salary.[66]
[66] USD2,700 x 12 = USD32,400
Mr Sultan supported his claim for compensation for pain and suffering with a report from each of his treating general practitioner and a psychologist. That evidence revealed that the conditions from which Mr Sultan suffers relate to matters that had occurred in connection with his employment. The evidence, however, does not establish any link between those conditions and what I have found to be the Consulate’s contravening conduct, namely, its deciding not to renew Mr Sultan’s contract.
DISPOSITION
In addition to making the directions to which I refer in paragraph 24 of these reasons I will make a declaration that by deciding not to renew his contract of employment the Consulate contravened s 340(1) of the FW Act. I will also make order pursuant to s 545(2)(b) of the FW Act that the Consulate pay to Mr Sultan compensation in the amount of USD32,400.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 16 July 2021
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