Sultan v Consulate General of the Republic of Iraq, Sydney (No 2)

This matter concerned an application by Mr Sultan against the Consulate General of the Republic of Iraq, Sydney. Mr Sultan alleged that the Consulate had taken adverse action against him by not renewing his contract of employment, in contravention of the Fair Work Act 2009 (Cth) (FW Act). The court was required to determine whether Mr Sultan had exercised a workplace right and whether the Consulate's decision not to renew his contract constituted adverse action taken for a prohibited reason.

The court considered whether Mr Sultan's statements regarding unfair treatment and disadvantage constituted the exercise of a workplace right. It then examined whether the Consulate's refusal to re-engage Mr Sultan, following these statements, amounted to adverse action as defined by the FW Act. The court also addressed the presumption under s 361 of the FW Act, which applies when adverse action is taken and the employer fails to provide evidence of a valid reason for that action.

Manousaridis J found that Mr Sultan had indeed exercised his workplace rights by making complaints about his employment. The court concluded that the Consulate's decision not to renew Mr Sultan's contract constituted adverse action. Crucially, the court did not accept the reasons provided by the Consulate for this decision, thereby triggering the presumption under s 361 of the FW Act. This presumption meant the court was required to infer that the Consulate took adverse action for reasons that included Mr Sultan having exercised his workplace rights. Consequently, the court found that the Consulate had contravened s 340(1) of the FW Act.

The court ordered that the Consulate General of the Republic of Iraq, Sydney, pay compensation to Mr Sultan. This compensation was to cover economic loss, calculated as the wages Mr Sultan would have earned had his contract been renewed, and an additional amount for pain and suffering.