| [2018] FWC 40 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ahmed Kenawy
v
The Embassy of the Republic of Iraq
(U2017/2734)
DEPUTY PRESIDENT KOVACIC |
CANBERRA, 3 JANUARY 2018 |
Application for relief from unfair dismissal - harsh, unjust or unreasonable – dismissal found to be unjust and unreasonable – compensation of $USD8,500 awarded.
[1] Mr Ahmed Kenawy (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 13 March 2017 alleging that he was forced to resign from his employment with the Embassy of the Republic of Iraq (the Respondent) on 20 February 2017.
[2] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent, while not raising any jurisdictional objections to Mr Kenawy’s application, stated that Mr Kenawy was not an employee of the Embassy.
[3] The application was heard on 9 November 2017. At the hearing Mr Kenawy appeared and gave evidence on his own behalf. Messrs Ibrahim Awad and Ahmet Mohamed Bahgat also gave evidence on behalf of Mr Kenawy, with neither person required for cross-examination. Mr Ahmed Kareem, Second Secretary with the Embassy of the Republic of Iraq, appeared for the Respondent. At Mr Kenawy’s request at the hearing, Mr Kareem agreed to give evidence in the matter. Both parties were assisted by interpreters.
[4] For the reasons set out below I have found that Mr Kenawy was employed by the Respondent, that he was dismissed by the Respondent and that his dismissal was both unjust and unreasonable. As to remedy, I do not consider reinstatement appropriate and propose an amount of compensation of $USD8,500 less applicable tax to be paid to Mr Kenawy within 21 days of this decision.
[5] Mr Kenawy commenced employment with the Respondent in early July 2016 as a driver to the Ambassador. Mr Kenawy contended that he was employed on a contract which specified that the employment was for a period of one year and that his monthly salary was $USD2,000.
[6] In his application, Mr Kenawy stated that on 20 February 2017 he attended work and advised the Respondent that his doctor had told him that he was unable to continue driving continuously for more than two hours and that on the same day he was asked by the Embassy to resign. Mr Kenawy further stated in his application that he refused to sign a letter stating that he was unable to continue working due to illness but that he signed a letter stating that he was resigning at the request of the Ambassador.
[7] In his written submissions Mr Kenawy reiterated a number of aspects of his application and submitted that he had been forced to resign because of the Respondent’s conduct. Mr Kenawy further submitted that there was no valid reason for his resignation and that he had not been given any verbal or written warnings regarding his performance.
[8] In his witness statement Mr Kenawy 1 deposed inter alia that as a result of the excessive work requested by the Ambassador and long driving journeys without reasonable rest that he sustained a back condition which led his doctor to advise him not to drive continuously for more than two hours. Appended to Mr Kenawy’s witness statement was a medical certificate dated 22 March 2017 which stated “It is my advice for Ahmed not to drive for long distance as a job as he has chronic low back pain with disc disease.”2
[9] Mr Kenawy further deposed that on 20 February 2017 he informed the Respondent of his medical condition and was subsequently forced to write a resignation letter stating that he could no longer work due to a medical condition. Mr Kenawy submitted that he refused to do so, instead signing a resignation letter stating that he was resigning at the request of the Ambassador.
[10] Beyond this, Mr Kenawy deposed that he received no written or verbal warnings in relation to his employment and that after five months he had secured employment as a driver with the Kuwait Cultural Office in Canberra.
[11] Key aspects of Mr Kenawy’s oral evidence were that:
• both he and the Ambassador signed his employment contract;
• he did not receive a copy of his signed employment contract despite requesting a copy following the cessation of his employment;
• the copy of the employment contract attached to his witness statement 3 had been left in his letterbox about a month ago (i.e. October 2017), adding that he did not know who had put it there but presumed that the person was from the Embassy;
• he commenced employment with the Respondent on 3 July 2017 and signed his employment contract about a week later;
• the Ambassador suggested that he date the employment contract 1 July 2017 so that he would be paid for the full month;
• his employment came to an end in February 2017 when on a Saturday he drove the Ambassador to a festival in Canberra city 4 and later refused to drive the Ambassador from Canberra to Sydney, Sydney to Newcastle and back due to his medical condition, adding that Mr Kareem had tried to convince him to take the Ambassador;
• the following Monday he attended the Embassy and was informed by the Assistant to the Ambassador that he was no longer required;
• following the cessation of his employment he spoke to Mr Kareem who advised that it was the Ambassador’s decision and that no one could change it;
• he subsequently approached a number of other embassies and drivers looking for work; and
• he commenced employment with the Kuwait Cultural Office in July 2017.
[12] Mr Awad and Mr Bahgat both deposed in their witness statements 5 that they were aware that Mr Kenawy had been forced to resign from his job with the Respondent. Little weight can be attached to their evidence in this regard as there is no evidence pointing to either of them attending the Embassy with Mr Kenawy on 20 February 2017 and therefore having any first-hand knowledge of the circumstances leading to the cessation of Mr Kenawy’s employment.
[13] At the hearing, Mr Kenawy submitted that he was doing his job properly and in a way that was satisfactory, he never refused anything that the Ambassador asked him to do, no performance issues had been raised with him, he was not given any reason as to why he was no longer required and that he had been dismissed when his medical certificate was not recognised by the Respondent. As to remedy, Mr Kenawy sought compensation in lieu of reinstatement.
[14] The Respondent provided no written submissions or evidentiary material despite being given the opportunity to do so. Further, at the hearing the Respondent did not challenge much of Mr Kenawy’s evidence.
[15] As mentioned above, at the hearing Mr Kareem agreed to give evidence in the matter following a request that he do so by Mr Kenawy. Key aspects of Mr Kareem’s oral evidence were that he was sure that Mr Kenawy worked for the Ambassador and not the Embassy and that Mr Kenawy had not driven him to official engagements.
[16] Also at the hearing the Respondent submitted that it did not believe that Mr Kenawy had been unfairly dismissed, adding that there was no written contract of employment and that Mr Kenawy was engaged as a result of a verbal agreement with the Ambassador.
[17] In response to a question from the Commission as to whether the Respondent disputed that Mr Kenawy worked for the Ambassador as his driver, the Respondent contended that there was no documentary evidence regarding Mr Kenawy’s employment and that it was a personal arrangement between the Ambassador and Mr Kenawy. The Respondent further submitted that if Mr Kenawy worked for it there would be a signed contract. When invited by the Commission to comment on the pay summary attached to Mr Kenawy’s witness statement 6 the Respondent submitted that:
• Embassy rules required that approval be obtained from Baghdad in respect of the employment of any locally engaged staff earning more than $USD500 per month;
• Mr Kenawy’s salary was drawn from the Ambassador’s personal budget rather than being paid by the Embassy;
• it did not dispute that Mr Kenawy was listed at number 9 on the pay summary or that the other persons listed were Embassy employees; and
• it did not believe that the pay summary had been issued by the Respondent, with Mr Kareem indicating that he did not think he had seen the document before.
[18] In short, the Respondent contended that Mr Kenawy was employed by the Ambassador in a personal capacity and was not employed by the Embassy.
Was the Applicant employed by the Respondent?
[19] A threshold issue which needs to be determined in this case is whether Mr Kenawy was an employee of the Respondent. As noted above, in its Form F3 the Respondent stated that Mr Kenawy was not an employee. Key pieces of evidence regarding this issue include the employment contract and pay summary attached to Mr Kenawy’s witness statement 7. Each of these is considered in more detail below.
[20] The English translation of the employment contract attached to Mr Kenawy’s witness statement:
• is headed “Employment Contract for Local Employees Working in Missions Abroad”;
• cites the first party to the contract as “Embassy of Republic of Iraq in Canberra represented by Head of Mission (Dr Hussain Alameri) in his official capacity”;
• cites the second party to the contract as “Local Employee (Ahmed Samir) of (Egypt) Nationality ...”;
• states as follows in respect of the contract period – “After the approval of the Ministry’s Headquarters to appoint the local employee in the mission, the contract period shall be for one year, starting from 1/7/2016, as from the date of issuing the administrative order by the mission under No. (1062) on (1/7/2016) and the commencement of work by the second party in the mission” (underlining added);
• is not signed by either party; and
• is stamped “Translation Nadir Bureau” (a translation body based in Baghdad 8).
[21] As to the pay summary, I make several points about the document. First, it is not translated. Second, the Respondent in response to questions from the Commission did not dispute that Mr Kenawy was listed at number 9 on the document or that the other persons listed were Embassy employees. Third, the stamp on the document bears the words “... of the Republic of Iraq – Canberra” which suggests that it is an Embassy document.
[22] Finally, I note that the Respondent led no evidence to support its contention that Mr Kenawy was employed by the Ambassador in a personal capacity rather that the Respondent. At one level, it would be reasonable to assume that if this were the case that the Ambassador could have provided a witness statement or statutory declaration to that effect.
[23] Considering the material before the Commission, I would firstly indicate that I have a number of reservations about the contract of employment provided by Mr Kenawy. These include that it is unsigned, it cites as the second party “Ahmed Samir” rather that the Applicant’s full name, i.e. Ahmed Samir Kenawy, and it does not bear the Embassy’s official stamp. Further, the circumstances in which the document came into Mr Kenawy’s possession are unusual to say the least.
[24] However the pay summary attached to Mr Kenawy’s witness statement in my view provides more compelling evidence that Mr Kenawy was employed by the Respondent. As noted above, it was not disputed that Mr Kenawy was listed at number 9 on that document and that the other persons listed were Embassy employees. This suggests that Mr Kenawy was paid by the Respondent as opposed to the Ambassador.
[25] The pay summary, together with the absence of any evidence to substantiate the Respondent’s contention that Mr Kenawy was employed by the Ambassador as opposed to it, supports a finding that Mr Kenawy was employed by the Respondent.
[26] Drawing on the above analysis, I find that Mr Kenawy was employed by the Respondent.
Was the Applicant dismissed?
[27] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case it was not disputed that the Applicant was protected from unfair dismissal pursuant to s.382 of the Act. However, based on Mr Kenawy’s application there is a question as to whether he was dismissed or resigned. The relevant provisions of the Act are ss.385 and 386 which provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
386 Meaning of dismissed
A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[28] As mentioned above, Mr Kenawy stated in his application that on 20 February 2017 he was asked by the Embassy to resign, adding that he refused to sign a letter stating that he was unable to continue working due to illness but that he signed a letter stating that he was resigning at the request of the Ambassador. I note also that the Respondent did not raise any jurisdictional objections to the application and that the resignation letter was not put before the Commission. Despite that I consider it necessary to form view on whether or not Mr Kenawy was in fact dismissed by the Respondent.
[29] The issue of dismissed at the initiative of the employer was considered by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 9(Mohazab). The Full Court stated in its decision that:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because `he felt he had no other option’. His Honour described those circumstances as:
“… a termination of employment at the instance [of] the employer rather than of the employee.’
And at p 5:
“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.”“ (Underlining added)
[30] In his oral evidence Mr Kenawy outlined the events leading up to the cessation of his employment, attesting among other things that on 20 February 2017 he attended the Embassy and was informed by the Assistant to the Ambassador that he was no longer required. Mr Kenawy made no mention in his oral evidence or submissions of having been forced to resign. More significantly however in my view, the Respondent did not dispute Mr Kenawy’s evidence in this regard. In short, the Respondent did not dispute that Mr Kenawy was informed by the Assistant to the Ambassador on 20 February 2017 that he was no longer required nor did it challenge that aspect of Mr Kenawy’s witness statement in which he deposed that he was forced to resign by the Respondent.
[31] Drawing on the language in Mohazab the material before the Commission points to the Respondent’s action in advising Mr Kenawy that he was no longer required as being the critical action in the cessation of Mr Kenawy’s employment and constituting the termination of his employment. In other words, the material before the Commission supports a finding that Mr Kenawy was dismissed by the Respondent as per s.386 of the Act.
[32] Having determined that Mr Kenawy was dismissed, s.385(a) of the Act is satisfied. Mr Kenawy contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. It was not contended that the Respondent is a small business employer or that the cessation of Mr Kenawy’s employment was a case of redundancy, so ss.385(c) and 385(d) are not relevant. Therefore, in determining whether Mr Kenawy was unfairly dismissed, I must consider whether his dismissal was harsh, unjust or unreasonable as per s.385(b).
[33] Section 387 of the Act sets out the criteria for considering harshness and provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWC considers relevant.”
[34] I will now address each of the criteria set out in s.387 of the Act.
[35] In Rode v Burwood Mitsubishi10 (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd11. The following is an extract from the Full Bench’s decision in Rode.
“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:
“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” (Underlining added)
[36] Beyond being advised on 20 February 2017 that he was no longer required, Mr Kenawy’s evidence was that he had not been given a reason for his dismissal.
[37] Other than contending that Mr Kenawy was not employed by it, the Respondent made no submissions as to why Mr Kenawy’s employment ceased.
[38] While a reasonable assumption would be that Mr Kenawy’s refusal to drive the Ambassador from Canberra to Sydney and Newcastle and back may have been a factor in the termination of his employment, there is no material before the Commission to that effect. Further, in circumstances where as noted above the Respondent did not dispute Mr Kenawy’s oral evidence regarding the events of 20 February 2017 or that aspect of his witness statement deposing that he had been forced to resign by the Respondent and in the absence of any evidence as to the reason why Mr Kenawy’s employment was terminated, there is no basis to determine that there was a valid reason for Mr Kenawy’s dismissal.
[39] In summary, there is no material before the Commission which supports a finding that there was a valid reason for Mr Kenawy’s dismissal. This factor weighs very heavily against the Respondent.
(b) Whether the person was notified of that reason
[40] A Full Bench of the then Australian Industrial Relations Commission in Crozier v Palazzo Corporation Pty Ltd 12 when considering this factor in the context of appeal against an unfair dismissal decision made under the Workplace Relations Act 1996 stated:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[41] As mentioned above, Mr Kenawy’s evidence was that he had not been given a reason for his dismissal and the Respondent made no submissions as to why Mr Kenawy’s employment was terminated.
[42] This supports a finding that Mr Kenawy was not notified of the reason for his dismissal. Again, this factor weighs against the Respondent.
[43] In circumstances where the material before the Commission indicates that Mr Kenawy was not advised of the reason for his dismissal but was just told that he was no longer required, it does not appear that Mr Kenawy was given an opportunity to respond to any concerns which the Respondent may have had regarding his capacity or conduct.
[44] I therefore consider that this factor supports a finding that Mr Kenawy’s dismissal was harsh, unjust or unreasonable.
[45] This criterion was not addressed by either party. However based on the material before the Commission there appears to have been no discussions leading up to Mr Kenawy’s dismissal and no suggestion that Mr Kenawy sought the assistance of a support person. As such, this factor is not a relevant consideration.
[46] Mr Kenawy deposed that he received no written or verbal warnings in relation to his employment. The Respondent did not address this criterion.
[47] There is no material before the Commission suggesting that Mr Kenawy was dismissed as a result of unsatisfactory performance. Accordingly, this factor is not a relevant consideration.
(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[48] Neither party made any submissions regarding these criteria. As such, I consider these factors to be neutral considerations.
[49] Neither party addressed this criterion. Accordingly, there are no other relevant matters.
Consideration of the issues
[50] Drawing on the above analysis, I find that there was not a valid reason for Mr Kenawy’s dismissal, that Mr Kenawy was not notified of the reason for his dismissal and was not given an opportunity to respond any concerns which the Respondent may have had regarding his capacity or conduct and that there are no other relevant matters. Beyond that, I find that the remaining criteria in s.387 of the Act are either neutral considerations or not relevant in this case.
[51] Having considered all of the criteria in s.387 of the Act, I find that Mr Kenawy’s dismissal was unjust and unreasonable. Accordingly, I now turn to consider the issue of remedy.
[52] Division 4 of Part 3-2 of the Act deals with remedies for unfair dismissal and is set out below.
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
(c) the order under subsection (1) may be an order to the associated entity to:
appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”
[53] As previously noted, Mr Kenawy sought compensation in lieu of reinstatement. The Respondent made no submissions regarding remedy. In circumstances where Mr Kenawy has secured alternative employment and where his employment with the Respondent was for a period of one year (i.e. Mr Kenawy’s employment was scheduled to end on 30 June 2017), I do not consider reinstatement appropriate. With regard to s.390(3)(b) of the Act and having determined that reinstatement is not appropriate, I consider that an order for payment of compensation is appropriate in all the circumstances of this case. Accordingly, I now need to determine what amount of compensation is appropriate in this case.
[54] The method for calculating compensation under s.392 of the Act was considered by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge 13 (Bowden). In that decision the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket14 and Ellawala v Australian Postal Corporation15. I have adopted the methodology utilised in Bowden in determining the amount of compensation.
Viability – s.392(2)(a)
[55] In the absence of any submissions from the Respondent regarding this factor and having regard to the Respondent being an arm of a foreign country/government, I consider the issue of viability to be a neutral consideration. Accordingly, no deduction is warranted on this ground.
Length of service – s.392(2)(b)
[56] Mr Kenawy was employed by the Respondent for a period of almost eight months. While a short period, as the amount of compensation contemplated does not exceed Mr Kenawy’s period of service, I do not consider any adjustment is warranted on the basis of Mr Kenawy’s short period of service.
Remuneration that would have been received – s.392(2)(c)
[57] Mr Kenawy submitted that had he been able to continue working with the Respondent that he would have worked for the duration of his contract, which he contended was a period of five months, and would have earned $AUD15,000 over that period. As noted above, the Respondent made no submissions regarding remedy.
[58] In the absence of any evidence pointing to concerns with Mr Kenawy’s performance, I consider it likely that Mr Kenawy would have continued in his employment until his contract expired on 30 June 2017. Relying on 20 February 2017 as the termination date, this is a period of four months and one week. Based on Mr Kenawy’s monthly salary of $USD2,000, I estimate that Mr Kenawy would have received $USD8,500 less applicable tax for this period.
Mitigation efforts – s.392(2)(d)
[59] Mr Kenawy attested that following his dismissal he approached a number of other embassies and drivers looking for work, deposing that he commenced new employment in July 2017. I am satisfied that Mr Kenawy sought to mitigate his loss by seeking and obtaining alternative employment. Accordingly, no deduction on this ground is warranted.
Remuneration earned – s.392(2)(e)
[60] Mr Kenawy submitted that he had not received any remuneration from 20 February 2017 until July 2017 when he commenced in his new job. Accordingly, no deduction on this ground is warranted.
Income reasonably likely to be earned – s.392(2)(f)
[61] As the proposed amount of compensation covers the period 20 February to 30 June 2017, i.e. the period before Mr Kenawy started earning an income from other employment, I consider that no deduction on this ground is warranted.
Other matters – s.392(2)(g)
[62] There are no other matters that I consider relevant to take into account in the determination of an amount of compensation.
Misconduct – s.392(3)
[63] Misconduct was not a factor in Mr Kenawy’s termination. As a result, there is no basis to reduce the proposed compensation amount on account of misconduct.
No component for shock, distress, humiliation or other analogous hurt – s.392(4)
[64] The compensation amount contains no component for any shock, distress, humiliation or other analogous hurt suffered by Mr Kenawy.
Compensation cap – s.392(5)
[65] The amount of compensation of $USD8,500 less applicable tax is below the compensation cap of $USD12,000 at the time of Mr Kenawy’s dismissal as per s.392(5) of the Act. The compensation cap reflects the amount that Mr Kenawy would have earned over a 6 month period (i.e. $USD2,000 x 6), which is lower than half the amount of the high income threshold immediately before Mr Kenawy’s dismissal (i.e. $AUD69,450).
Summary
[66] Having regard to the various statutory requirements set out in ss.390-392 of the Act, I find that reinstatement is not appropriate in this case and determine that compensation of $USD8,500 less applicable tax is appropriate in all the circumstances of this case.
[67] For the reasons outlined above, I consider Mr Kenawy was employed by the Respondent, that he was dismissed by the Respondent and that his dismissal was both unjust and unreasonable. As to remedy, I do not consider reinstatement appropriate and propose an amount of compensation of $USD8,500 less applicable tax to be paid within 21 days of this decision. An order to that effect will be issued in conjunction with this decision.
Appearances:
Mr A. Kenawy on his own behalf
Mr A. Kareem for the Respondent
Hearing details:
9 November
2017
Canberra
1 Exhibit 1
2 Ibid at Attachment A
3 Ibid at Attachments D and E
4 The festival was most likely the National Multicultural Festival which was held over the period 17-19 February 2017
5 Exhibits 2 and 3 respectively
6 Exhibit 1 at Attachment C
7 Ibid at Attachments D and C respectively
8 Google search
9 (1995) 62 IR 200 at 205
10 PR4471
11 (1995) 62 IR 371
12 (2000) 98 IR 137 at paragraph 73
14 (1998) 88 IR 21
15 Print S5109
Printed by authority of the Commonwealth Government Printer
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