FEDERAL CIRCUIT COURT OF AUSTRALIA

Transcription

1 FEDERAL CIRCUIT COURT OF AUSTRALIA KASSIS v REPUBLIC OF LEBANON [2014] FCCA 155 Catchwords: PRACTICE AND PROCEDURE Judgment summary judgment whether applicant satisfies requirements for summary judgment. PRACTICE AND PROCEDURE Parties non-appearance of party where party is foreign state consideration of Foreign States Immunities Act 1985 (Cth) where applicant a citizen of Australia employed in Australia whether applicant complied with requirements for service of application initiating proceedings whether action may be brought under Fair Work Act 2009 (Cth) against foreign state. INDUSTRIAL LAW Protections under the Fair Work Act 2009 (Cth) alleged contraventions of ss.45, 340, 351 and 352 of the Fair Work Act 2009 (Cth) and of the Annual Holidays Act 1944 (NSW) and the Long Service Leave Act 1955 (NSW) where applicant the subject of bullying and harassment because of her sex and marital status where applicant dismissed consideration of term adverse action whether applicant made a complaint whether respondent took adverse action against applicant for exercise of a workplace right whether applicant discriminated against because of her sex and marital status whether applicant dismissed because of her sex or marital status whether applicant dismissed because of a temporary absence from work due to illness or injury in breach of s.352 whether respondent breached Annual Holidays Act 1944 (NSW) for non-payment of accrued annual leave entitlements upon dismissal whether respondent breached Long Service Leave Act 1955 (NSW) for failure to pay long serviced leave entitlements. INDUSTRIAL LAW Compensation and penalties contraventions of ss.45, 340, 351 and 352 of the Fair Work Act 2009 (Cth) and breaches of the Annual Holidays Act 1944 (NSW) and the Long Service Leave Act 1955 (NSW) breach of Awards contravention of general protection contravention of specific protections of discrimination on basis of sex and marital status and dismissal for temporary absence from work because of illness or injury whether to award compensation for loss of future earnings imposition of penalty factors relevant to calculation of penalty. CONTRACT Breach of clauses where applicant claimed oral contract contained clause that she be paid at the same rate as another employee where applicant paid less than other employee whether applicant acquiesced to underpayment whether applicant s evidence sufficient to establish claimed Kassis v Republic of Lebanon [2014] FCCA 155 Cover sheet and Orders: Page 1

2 compensation for underpayment. DAMAGES Assessment Award of damages for psychiatric injury pursuant to s.545 of the Fair Work Act 2009 (Cth). Legislation: Fair Work Act 2009 (Cth) s.13, 14, 30M, 30N, 45, 87, 117, 340, 342, 351, 352, 361(1), 539, 545, 546, 557 Workplace Relations Act 1996 (Cth) s.570(2)(b) Limitation Act 1969 (NSW) Foreign States Immunities Act 1985 (Cth) s.12, 24, 27 Vienna Convention on Consular Relations Consular Privileges and Immunities Act 1972 (Cth) Acts Interpretation Act 1901 (Cth) s. 2C Workers Compensation Act 1987 (NSW) Anti-Discrimination Act 1977 (NSW) ss.25(2)(c), 40(2) Superannuation Guarantee (Administration) Act 1992 (Cth) Annual Holidays Act 1944 (NSW) s.3(1)(b) Long Service Leave Act 1955 (NSW) ss. 4, 10 Trade Practices Act 1974 (Cth) Australian Human Rights Commission Act 1986 (Cth) s.46po Cases cited: Australian Building and Construction Commissioner v Abbott (No 3) [2011] FCA 340, Australian Competition and Consumer Protection Commission v Yellow Page Marketing BV (No2) [2011 FCA 352 Top Plus Pty Ltd v Muse Entertainment Pty Ltd & Ors [2013] FCCA 379 Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 Haines v Bendall (1991) 172 CLR 60 Qantas Airways Ltd v Gama (2008) 167 FCR 537 Burke v Serco Pty Ltd [2013] FMCA 196 General Motors-Holden Pty Ltd v Moularas (1964) 111 CLR 324 Goodman v Pocock (1950) 15 QB 576 Todorovic v Waller (1981) 150 CLR 402 Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 1034 PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2011] FCAFC 52 Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant and Bar [2007] FMCA 7 Kelly v Fitzpatrick [2007] FCA 1080 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Kassis v Republic of Lebanon [2014] FCCA 155 Cover sheet and Orders: Page 2

3 Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 Applicant: Respondent: VIVRONIA KASSIS REPUBLIC OF LEBANON File Number: SYG 256 of 2012 Judgment of: Judge Raphael Hearing date: 29 November 2013 Date of Last Submission: 29 November 2013 Delivered at: Sydney Delivered on: 14 February 2014 REPRESENTATION Counsel for the Applicant: Solicitors for the Applicant: For the Respondent: Mr A. Searle Herbert Geer No appearance Kassis v Republic of Lebanon [2014] FCCA 155 Cover sheet and Orders: Page 3

4 THE COURT DECLARES THAT (1) The respondent contravened s.45 of the Fair Work Act for non-payment of entitlements under the Clerks Division 2B State Award and the Clerks Private Sector Award. (2) The respondent contravened s.340 of the Fair Work Act by dismissing the applicant upon her making of a complaint. (3) The respondent contravened s.351 of the Fair Work Act by taking the adverse action of discriminating between the applicant and other employees because of her sex and marital status and because of her dismissal because of her sex and marital status. (4) The respondent contravened s.352 of the Fair Work Act by dismissing the applicant because of a temporary absence from work due to illness. (5) The respondent contravened s.4 the Annual Holidays Act 1944 (NSW) for non-payment of holiday pay upon termination where pay was not taken by the applicant. (6) The respondent contravened s.4 of the Long Service Leave Act 1955 (NSW) for failure to pay accrued long service leave entitlements upon dismissal of the applicant. ORDERS (1) Pursuant to s.546 of the Fair Work Act the respondent pay a penalty of $7, for the breach of s.45 of the Fair Work Act set out as Declaration (1). (2) Pursuant to s.546 of the Fair Work Act the respondent pay a penalty of $7, for breach of s.340 of the Fair Work Act set out as Declaration (2). (3) Pursuant to s.546 of the Fair Work Act the respondent pay a penalty of $7, for breaches of ss.351 and 352 of the Fair Work Act set out as Declarations (3) and (4). Kassis v Republic of Lebanon [2014] FCCA 155 Cover sheet and Orders: Page 4

5 (4) Pursuant to s.11 of the Annual Holidays Act the respondent pay a penalty of $ for breach of s.4 of that Act set out in Declaration (5). (5) Pursuant to s.10 of the Long Service Leave Act the respondent pay a penalty of $1, for breach of s.4 of that Act set out in Declaration (6). (6) Each of the penalties referred to in Orders 1, 2, 3, 4 and 5 be paid to the Commonwealth Consolidated Revenue Fund within 28 days. (7) The respondent pay the applicant the sum of $64, in compensation for underpayment of wages. (8) The respondent pay the applicant the sum of $24, in compensation for non-payment of superannuation. (9) The respondent pay the applicant the sum of $5, in compensation for non-payment of annual leave entitlements. (10) The respondent pay the applicant the sum of $3, in compensation for non-payment of leave loading entitlements. (11) The respondent pay the applicant the sum of $4, in compensation for non-payment of long service leave entitlements. (12) The respondent pay the applicant the sum of $4, in compensation for non-payment of notice upon termination. (13) The respondent pay the applicant the sum of $20, in interest. (14) The respondent pay the applicant the sum of $333, for loss of future earnings. (15) Pursuant to s.545 of the Fair Work Act the respondent pay to the applicant $50, in damages for the effects of the respondent s conduct upon the applicant. Kassis v Republic of Lebanon [2014] FCCA 155 Cover sheet and Orders: Page 5

6 FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY No. SYG 256 of 2012 VIVRONIA KASSIS Applicant And REPUBLIC OF LEBANON Respondent REASONS FOR JUDGMENT 1. Mrs Kassis sues the Republic of Lebanon seeking penalties, reimbursement of underpayments, damages for loss occasioned by the alleged breaches and in the court s accrued jurisdiction, damages for breach of contract. The applicant s primary allegation is that she was dismissed by the respondent in contravention of general protections under the Fair Work Act 2009 (Cth), she also claims that the employer took adverse actions against her in the form of harassment, bullying and intimidation on the basis of her sex and marital status. She also claims breaches of the industrial instruments that governed her employment. The Republic of Lebanon has taken no part in the proceedings which were eventually heard by the court pursuant to Rule of the Federal Circuit Court Rules 2001 (Cth). 2. In these reasons for decisions the court will first consider the applicant s right to bring these claims against the foreign state and then proceed to rehearse, in short form, the evidence, both lay and medical, for the purpose of considering whether it satisfies the court that the statutory breaches have occurred. The court will then consider the measure of loss suffered by the applicant before considering the Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 1

7 appropriate penalties to apply for breaches that have been found. The applicant also asks for the court to exercise its discretion to award her costs, pursuant to s.570(2)(b) Workplace Relations Act 1996 (Cth). 3. The events in question took place in 2005 and To the extent that there is a claim in relation to unpaid wages and other benefits under the contractual claim, the Limitation Act 1969 (NSW) will apply. Bringing an action under the Fair Work Act against a foreign state 4. It is not controversial that the Republic of Lebanon cannot rely on immunity as a foreign state in these proceedings. Section 12 of the Foreign States Immunities Act 1985 (Cth) provides: Contracts of employment (1) A foreign State, as employer, is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment that was made in Australia or was to be performed wholly or partly in Australia. (2) A reference in subsection (1) to a proceeding includes a reference to a proceeding concerning: (a) a right or obligation conferred or imposed by a law of Australia on a person as employer or employee; or (b) a payment the entitlement to which arises under a contract of employment. (3) Where, at the time when the contract of employment was made, the person employed was: (a) a national of the foreign State but not a permanent resident of Australia; or (b) an habitual resident of the foreign State; subsection (1) does not apply. (5) Subsection (1) does not apply in relation to the employment of: (a) a member of the diplomatic staff of a mission as defined by the Vienna Convention on Diplomatic Relations, being the Convention the English text of which is set out in the Schedule to the Diplomatic Privileges and Immunities Act 1967 ; or (b) a consular officer as defined by the Vienna Convention on Consular Relations, being the Convention the English text of which is set out in the Schedule to the Consular Privileges and Immunities Act Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 2

8 (6) Subsection (1) does not apply in relation to the employment of: (a) a member of the administrative and technical staff of a mission as defined by the Convention referred to in paragraph (5)(a); or (b) a consular employee as defined by the Convention referred to in paragraph (5)(b); unless the member or employee was, at the time when the contract of employment was made, a permanent resident of Australia. (7) In this section, permanent resident of Australia means: (a) an Australian citizen; or (b) a person resident in Australia whose continued presence in Australia is not subject to a limitation as to time imposed by or under a law of Australia. 5. The contract of employment was made in Australia and performed wholly in Australia. Mrs Kassis was a consular employee, defined in Article 1(1)(e) of the Vienna Convention on Consular Relations (as it appears in Schedule 1 of the Consular Privileges and Immunities Act 1972 (Cth)) as: any person employed in the administrative or technical service of a consular post However, she was also an Australian citizen and, therefore, the further exception in s.12(6) applies. 6. I am satisfied that Mrs Kassis is a person able to bring these proceedings in this court. Mrs Kassis is a natural person and an employee for the purposes of s.13 and s.30m(1)(a) of the Fair Work Act. Section 13 of the Act provides: A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement. 7. Section 30M extends the meaning of a national system employee to employees in referring states, which include New South Wales. Mrs Kassis, as a person affected by the alleged contraventions of general protections provisions of the Act, has standing to bring the proceedings for compensation pursuant to s.539(2) of the Act. Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 3

9 8. And, I am satisfied that the Republic of Lebanon was an employer for the purposes of s.14(1)(f) and s.30n(1)(a) of the Fair Work Act 2009 (Cth). Section 14(1)(f) provides: Meaning of national system employer (1) A national system employer is: (f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory. The Republic of Lebanon, as a body politic or body corporate, is a person, as defined in s.2c of the Acts Interpretation Act 1901 (Cth), and through its Consulate carried on an activity of a governmental nature in New South Wales. The applicant complied with the requirements for service of the application initiating proceedings upon the respondent pursuant to s.24 of the Foreign States Immunities Act 1985 (Cth). This required that the initiating process be served through diplomatic channels, and a certificate of service pursuant to s.40 is attached to the Affidavit of Mr Gary Punch sworn 25 November 2013 and states that service was effected on 4 February An affidavit of service of the subsequent amended application and other documents, sworn 22 October 2013, is attached to Mr Punch s affidavit of 25 November. Also attached to that affidavit is another affidavit of service relating to the service of a letter informing the respondent of the time and date of the hearing. I am further satisfied that the Respondent was informed of the change of time of the hearing from 10.15am to 9.30am, and note, in any case, that the respondent did not appear in court at or any time thereafter. 9. As the court is satisfied that the respondent cannot rely on foreign state immunity, it may enter judgment in default of the respondent s appearance in accordance with s.27 of Foreign States Immunities Act 1985 (Cth). The factual bases for the allegations 10. It is established that where a respondent is in default and the proceeding is commenced with an accompanying statement of claim Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 4

10 the court may give judgment in favour of the applicant that the applicant appears entitled to on the basis of the statement of claim alone, and that the court is satisfied that it has the power to grant those orders. So much is clear from Rule 13.03B(2)(c) of the Federal Circuit Rules 2001, but also from the authorities, upon which the applicant relies, such as Australian Building and Construction Commissioner v Abbott (No 3) [2011] FCA 340, Australian Competition and Consumer Protection Commission v Yellow Page Marketing BV (No2) [2011 FCA 352 and Top Plus Pty Ltd v Muse Entertainment Pty Ltd & Ors [2013] FCCA 379 per Simpson J. 11. However, as noted above, the matter was heard on the basis of Rule which provides: Disposal by summary judgment (1) This rule applies if, in a proceeding: (a) in relation to the whole or part of a party's claim there is evidence of the facts on which the claim or part is based; and (b) either: (i) there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or part; or (ii) the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part. (2) The Court may give judgment on that claim or part and make any orders or directions that the Court considers appropriate. (3) If the Court gives judgment against a party who claims relief against the party obtaining the judgment, the Court may stay execution on, or other enforcement of, the judgment until determination of that claim. The applicant has satisfied Rule 13.07(1)(a) through the provision of affidavits of herself, sworn 2 September 2013, her husband Mr Sid Macdessi, sworn 2 September 2013, and Dr Than-Tam Luu sworn 30 August I will briefly rehearse that evidence. Mr Gary Punch, solicitor, has given affidavit evidence in satisfaction of Rule 13.07(1)(b). Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 5

11 12. Mrs Kassis was employed at the Sydney Consulate of the Republic of Lebanon from 5 January 2005 until her dismissal on or about 25 February This was the second time Mrs Kassis had undertaken a post at the Consulate, she worked there in a secretarial role from November 1998 to December 1999 but left, she says, because she was conflicted about the Consulate encouraging employees to access Centrelink payments. 13. Mrs Kassis was hired in her second role at the Consulate following a meeting with the Consul, Mr Robert Naoum and his wife at the Consul s official residence in Sydney. Mrs Kassis states that she had raised with Mr Naoum her prior concerns about the Consulate s adherence to Australian law and was assured that all was now being done properly. She was informed that she would be working in the role of Senior Editor, required to undertake duties more important than those of clerical officers and that her pay would be in line with her qualifications and equal to that of Mr Naoum s personal secretary, Ms Lina Nasser. According to Mrs Kassis, this oral agreement formed her contract of employment. 14. Mrs Kassis concerns began early in her employment. She was not paid until March of 2005, when she was informed by the Consulate s accountant, Mr Bassam Chehade, that the Consulate had had to wait to receive a Letter of Approval before remuneration could be made. Mrs Kassis asked Mr Naoum s secretary for a copy of the letter, but was told that it had not arrived. She attests that she was never granted access to the letter throughout her employ and that this was unusual as she had received a copy of the letter for her former post (annexure VK- A to her affidavit of 2 September 2013). Adding to her concerns was that when signing for her pay, received in cash, she noticed Ms Nasser s pay appeared to be higher than her own. Where Mrs Kassis had been paid $7, for her three months, Ms Nasser had received $3, for the month of March. When the next pay arrived at the end of April, her concern about pay was confirmed when her pay amounted to $2, and Ms Nasser s was in the amount of $3, At this point Mrs Kassis raised her concern with the accountant and asked him to check with Mr Naoum. The amount was still incorrect in Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 6

12 the payment for May. She was informed by Mr Chehade that Mr Naoum had responded to her query by saying that that was all the consulate could afford and that she should claim Centrelink on top of her pay. Mrs Kassis attests that she challenged this, but was informed that she was being paid under Lebanese law, that they had diplomatic immunity and that the Australian authorities could not check the pay records. She challenged this too and was informed by Mr Chehade that everything would be done according to Australian law, but also that they were working under Lebanese law. Mr Chehade warned Mrs Kassis not to approach Mr Naoum. 16. In June, the pay had not changed and Mrs Kassis again questioned Mr Chehade. She also queried the non-provision of her Letter of Approval, being told that Mr Naoum now kept all communications with the Ministry confidential. Mrs Kassis, at that time, worried about causing problems with Mr Naoum decided to apply herself to her work in the hope that it was recognised with an increase in pay up to the contracted amount. She stated that she continued, over the years, to question Mr Chehade, but not Mr Naoum. She continued to observe and compare her pay to Ms Nasser s pay. Although Mrs Kassis pay never reached the contracted amount she attests that it is her belief that her pay did increase. She recalls only two pay raises over the period of her employment: the first of $120 per month in February 2007, and the second of the same amount in March of Her evidence is that she complained to Mr Chehade about this. 17. Her pay concerns aside, Mrs Kassis work was initially well received. She attests that she regularly received compliments on her work from Mr Naoum. Mr Naoum had Mrs Kassis represent the Consulate at public events and, in early 2008, asked Mrs Kassis to become his personal assistant in place of Ms Nasser. Mr Naoum s praise for Mrs Kassis was not limited, however, to her work. She attests that there were occasions where he expressed admiration for her with other staff members and that this lead to embarrassment and tension with other staff members. 18. This expression of affection culminated in two private dinners with Mrs Kassis in June of Mr Naoum s wife had returned to live permanently in Lebanon in August of At the second of these Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 7

13 dinners, Mrs Kassis attests to having turned down an advance by Mr Naoum. Mrs Kassis then turned down a further invitation to dinner. Following this, the nature of Mrs Kassis employment changed again. 19. When Mrs Kassis returned from annual leave in August of 2008, Mr Naoum informed her that Ms Nasser would be his personal assistant, and that she was to work on registrations in the general office. According to Mrs Kassis, this was a large demotion. Her duties became less and less demanding. But she did not complain and her pay remained the same. 20. Mr Naoum began loudly remonstrating Mrs Kassis work so that other Consulate workers would hear, she believes that Mr Naoum watched her work on CCTV. This treatment lead to Mrs Kassis increased levels of stress and illness. In May of 2009, Mrs Kassis application for four weeks annual leave was rejected, she was told she was only entitled to three weeks. 21. Mrs Kassis attests that following her marriage in April of 2010, Mr Naoum s treatment of her deteriorated further. Mrs Kassis position changed to accounts clerk, where she was to be responsible for the balancing of the daily financial journals. Mrs Kassis complained to Mr Chehade that she had no training in accounting. She was informed that if she did not want to do the work she could resign. She was later told by Mr Chehade that Mr Naoum was blaming her for mistakes and building a case for her dismissal. 22. When Mrs Kassis sought annual leave in June 2010, including marriage allowance of three days and public holidays for Ramadan, Mr Chehade informed her that Mr Naoum had refused the public holiday and marriage allowance on the basis that it was only for first marriages. She was again told that if she disagreed she could resign. 23. In another incident Mr Naoum held Mrs Kassis responsible for some missing monetary stamps, and after having to report in writing about them, was required to pay back the value of the stamps. This she did in cash, she says because she was too frightened and without effective means of opposing this unreasonable demand [60]. Mrs Kassis received no paperwork for the refund paid. Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 8

14 24. These events culminated in Mrs Kassis falling ill through stress in July Mrs Kassis took one week s sick leave for stress. Upon her return to work and presentation of a doctor s certificate, Mrs Kassis was informed by Mr Chehade that Mr Naoum did not accept the certificate and that she was required to present a prescription receipt for the medication prescribed by her doctor on the certificate. 25. In August of 2010 Mr Naoum fined Mrs Kassis after he found a torn page in one of the files she had worked on. At this time, Mrs Kassis was on annual leave in Lebanon where, with her husband, Mrs Kassis arranged to meet the senior manager in the Lebanese Foreign Affairs Department, Ambassador Habhab. At this meeting, Mrs Kassis attests to having explained the situation and complained of bullying and harassment on the part of Mr Naoum. She was assured that she could not be dismissed without his approval, and that Mr Naoum was due to return to Beirut. Mrs Kassis states that as she and her husband left Ambassador Habhab s office, they encountered Mr Naoum who also had a meeting with Mr Habhab. Mrs Kassis s husband, Mr Sidney Macdessi, corroborates this account of events in an affidavit sworn 2 September 2013 at [4] [5]. Despite the occurrence of this meeting, and Mr Naoum s knowledge of it, the harassment did not cease upon Mrs Kassis return to work in September In February 2011 Mrs Kassis again fell ill following a confrontation with Mr Naoum on 11 February 2011 about an error that Mrs Kassis attests was not her own. On 15 February Mrs Kassis visited Dr Nema, who provided her with a medical certificate that stated: THIS IS TO CERTIFY THAT Mrs Vivronia K Rahme IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD Tuesday, 15 February 2011 TO Saturday 19 February 2011 INCLUSIVE She WILL BE UNFIT TO CONTINUE her USUAL OCCUPATION 27. Mrs Kassis was referred to Dr Daniel Murray who provided her with a medical certificate dated 24 February 2011 that stated: Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 9

15 This is to certify that I have advised [Mrs Kassis] not to continue with her work role due to workplace stress. This is effective from today, until further notice. and referred her to consultant psychiatrist, Dr Thanh-Tam Luu. 28. Mrs Kassis attests that on 25 February 2011 she was handed a report signed by Mr Naoum that was, in effect, her notice of dismissal. A translation of the report, found at annexure VK-D, states: DISMISSAL OF A LOCAL EMPLOYEE BECAUSE SHE AHD [sic] COMMITTED FREQUESNT [sic] SERIOUS MISTAKES We, the General Consul of Lebanon in Sydney [ ] And as Mrs. Vivronia Kassis was appointed as an editor in accordance with Decision No. 1/2005 dated ; And as she had worked for the consulate from until 28 February 2011 (with absence of 13 consecutive days leave without pay), that is to say for six years, one month and twelve days; And as the last salary paid to Mrs. Vivronia KASSIS for January 2011 was 2660,00 Australian dollars; And due to the repetitive serious mistakes committed by her; DECIDE THE FOLLOWING: Article 1. Dismiss local employee Vivronia KASSIS from service beginning from because of her serious violations of her behavioural duties and after she had used all her administrative holidays that she is entitled to. Article 2. Pay her ned of service compensation whicvh is 16270,30 (sixtenn thousand and two hundred and seventy Australian dollars and twenty cents in accordance with Paragraph 111 of Article 24 of Decision No. 14/16 dated Article 3. This decision becomes effective upon the signature of the General Secretary of the Ministry of Foreign Affirs. Sydney on : 11/02/2011 Seal of the General Consulate of Lebanon Sydney Signature of: Consul General Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 10

16 Robert Naoum 29. Arguably, in accordance with Article 3, this document did not of itself constitute a dismissal of Mrs Kassis. Furthermore, its date of 11 February 2011, suggests that the dismissal was not for reason of Mrs Kassis illness in February but was due the succession of prior events and the confrontation with Mr Naoum on 11 February. However, it is clear that she was effectively dismissed. Mrs Kassis has not returned to work. 30. The applicant s evidence, unchallenged as it is, should be accepted by the court. Mrs Kassis Illness 31. Mrs Kassis treating psychologist, Dr Thanh-Tam Luu has sworn an affidavit in these proceedings annexing two reports made in response to letters from Mrs Kassis former and current representatives respectively. The second report, dated 9 July 2013 states in relation to her diagnosis: 5. A diagnosis on initial attendance and at even date. Following her initial assessment on 21 July 2011 Mrs Kassis was diagnosed with a Major Depressive Disorder with melancholic features on a background of a longstanding Anxiety Disorder. She currently has a diagnosis of a partially treated Major Depressive Disorder moderate, with melancholic features and Panic Disorder with mild agoraphobia. And in relation to the cause of the injury: 6. The relationship of Mrs Kassis s injury to her employment with the Republic of Lebanon, in particular has the injury been caused, aggravated, accelerated or exacerbated by: a. employment with the Republic of Lebanon in general There did not appear to be a general relationship of Mrs Kassis s injury to her employment with the Republic of Lebanon. b. any particular incidents in that employment Mrs Kassis described perceived onset of significant workplace bullying from 2009 following an apparent perceived rejection of sexual harassment by the then Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 11

17 Lebanese Consulate [sic] General. It is my opinion that Mrs Kassis s psychological injury was directly triggered by this incident and the ensuing escalation of her harassment and victimisation from the Consulate General aggravated his [sic] injury. Prior to this injury, Mrs Kassis had a harmonious working relationship with colleagues which changed significantly with her increasing isolation from peers. An aggravating secondary impact of these events on Mrs Kassis was her increased anxiety, depression and loss of control over the injustice of these circumstances in which her reputation, self-esteem and friendships were severely compromised. [ ] d. any other circumstances or events Mrs Kassis s psychological injuries have been aggravated by usual family psychological stressors relating to her second marriage and isolation from family support. Her underlying personality, previous experience of war, growing up in Lebanon and difficulties with conflict resolution are aggravating factors for her psychological injuries. And finally in relation to her prognosis and capacity to return to work: 7. Identify the short and long term prognosis. The short term prognosis for Mrs Kassis is of a continuing, fluctuating anxiety and depression triggered by her frustration at a lack of closure to these court proceedings. She has limited ability to engage psychological skills to manage her continued moderate depression, constant anxiety and panic attacks due to her depressive symptoms. Long term prognosis remains guarded for full recovery with likely chronic level of depression continuing. This is on the basis of these events eroding self esteem and difficult acceptance of her sense of injustice. The impact on her life continues to be significant with respect to financial loss and the eroding nature of her anxiety and depression on her relationships, continuing source of shame and distress. 8. How has the injury arising out of Mrs Kassis s employment affected her employment capacity? In particular: a. does Mrs Kassis have a capacity for her pre-injury employment duties and if not, when can it be expected that she will be fit for such employment. Mrs Kassis currently does not have a capacity to return to her pre-injury employment duties and it is unlikely that she will ever be fit for such employment due to her continued anxiety, depression and Panic Disorder which impact significantly on her concentration, ambivalence and decision making, motivation and energy. b. if Mrs Kassis is not fit for pre-injury employment what medical restrictions should be placed on her employment? Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 12

18 Mrs Kassis would benefit from a gradual transition back into the workplace with the assistance of a rehabilitation provider service. This would be dependent on her clinical state but Mrs Kassis would show strong motivation to engage in this process based on her previous exemplary work history and strong work ethic, evident prior to her work-related psychological injury. c. do you believe Mrs Kassis has a permanent incapacity for any and what employment I believe Mrs Kassis may have a capacity to return to part time employment following the closure of these events. She is working towards commencing voluntary work when this matter is settled but her success in this endeavour requires further recovery from her major depressive illness and a supportive work environment. She will require further pharmacological titration of medications and intensive cognitive behavioural strategies to manage further anxiety triggers that threaten her safety and security in the workplace. 32. This evidence corroborates Mrs Kassis evidence and it goes to the penalties that should be imposed. The Amended Statement of Claim Alleged Contraventions of the Fair Work Act The applicant s primary claim under the Fair Work Act is for dismissal in contravention of general protections under s.340. Section 340 provides: Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. 34. The definition of adverse action is explored in greater depth below because there appears to be some confusion in the applicant s submissions about this term which is defined at s.342. The applicant s Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 13

19 submissions include the headings, Adverse action: discrimination, Adverse action: The exercise of a workplace right, Adverse action: Temporary absence from work because of illness or injury, Adverse action: The termination of employment. Strictly speaking only the latter heading constitutes an adverse action for the purposes of the Act. 35. The applicant also summarises its submissions under a heading Adverse action(s). These are: 54. In harrassing [sic], bullying and intimidating the Applicant for a reason that included her sex and marital status, the Respondent took adverse action against the Applicant in breach of s In dismissing the Applicant for a reason that included her sex and marital status, the Respondent took adverse action against the Applicant in breach of s.351 of the Act. In harrassing [sic], bullying and intimidating the Applicant for a reason that included the making of a complaint about her employment the Respondent took adverse action against her in breach of s 340 of the Act. In dismissing the Applicant for a reason that included her temporary absence from work, the Respondent took adverse action against her in breach of s 352 of the Act 36. There is an apparent misunderstanding of the structure of the Act in these submissions. The applicant appears to be arguing that the taking of an adverse action constitutes a breach of the Act. I believe this stems from an attempt to frame the bullying and harassment of Mrs Kassis as an adverse action which therefore engendered a breach of the general protections provision s.340, and the protection against discrimination provision in s.351. However, harassment, bullying and intimidation do not constitute, on their own, an adverse action for the purposes of the Act, and are not to be confused with discrimination. Adverse actions are defined in s.342 which relevantly provides: The following table sets out circumstances in which a person takes adverse action against another person. Meaning of adverse action Item Column 1 Adverse action is taken by... Column 2 if... Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 14

20 1 an employer against an employee the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer. 37. Bullying and harassment may constitute an adverse action, but only when it leads to one of the defined adverse actions in s.342 of the Act. The evidence suggests that the bullying and harassment alleged was a causal factor in Mrs Kassis injury, therefore Column 2(b) would be satisfied. This also forms a part of the submissions at [37]. Likewise, the methods employed to bully and harass included altering Mrs Kassis position to her detriment and discriminating between her and other employees. Had they been pleaded as such, these would have constituted further adverse actions taken by the employer for the purposes of both s.340 and s.351. The court notes that a claim for compensation on the grounds of bullying, harassment and intimidation cannot be brought under the Fair Work Act unless it is tied to an adverse action or constitutes discrimination. Such claims are perhaps more properly brought under other instruments, such as antidiscrimination legislation and workers compensation legislation (Workers Compensation Act 1987 (NSW)). 38. The workplace right alleged to be infringed for the purposes of the s.340 claim was the making of a complaint (s.341(1)(c)). I note that the applicant could have framed this workplace right as entitlement or benefit to a workplace law, including workplace health and safety laws, but this was not the approach taken in relation to the breach of s The other protections alleged to have been contravened include discrimination (on the basis of sex and marital status) in contravention of s.351 of the Act, and dismissal for a temporary absence from work because of illness or injury (s.352). It should be noted that the Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 15

21 applicant also relies on the presumption in s.361(1) of the Act, which provides: (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. 40. The evidence, unchallenged, clearly establishes that contraventions occurred. I am satisfied that Mrs Kassis made a complaint to Ambassador Habhab in Lebanon and to the Embassy in Canberra about her employment. The making of a complaint was a workplace right for the purposes of s.341 of the Act. I am satisfied, as the applicant submits, that Mr Naoum was aware of the complaint and that it contributed to his decision to dismiss the applicant (Affidavit of Mrs Kassis at [85]). This dismissal constituted an adverse action. Therefore I am satisfied that Mrs Kassis was dismissed for exercising a workplace right in breach of s The treatment of Mrs Kassis following her rejection of Mr Naoum s advances and then her marriage to Mr Macdessi amounted to harassment and bullying. I am satisfied that this behaviour was taken because of Mrs Kassis sex and her marital status. This constitutes discrimination for the purposes of s.351 the Act because Mr Naoum was discriminating between Mrs Kassis and other employees (in accordance with column 2(d) in s.342). In the alternative, I am satisfied that this behaviour culminated in her dismissal because of her sex and marital status. Dismissal is an adverse action for the purposes of s.351. Section 351(2) does not assist the respondent, as dismissal on those grounds constitutes discrimination for the purposes of s.25(2)(c) and s.40(2) respectively of the Anti-Discrimination Act 1977 (NSW), and therefore s.351 was contravened. 42. Although the request for dismissal letter that was handed to Mrs Kassis was dated 12 February 2011, I am satisfied from the evidence tendered Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 16

22 and in the absence of any rebuttal that her absence from work due to illness or injury from 13 February 2011 contributed to her dismissal on 25 February This constitutes a contravention of s.352 of the Act. The Contractual Claim 43. The applicant first claims that the respondent breached the oral contract under which she was employed. This underpayment relates to underpayment of wages under the term of the oral contract and underpayment, or non-payment, of entitlements that stem from the Awards under which Mrs Kassis was employed in the state of New South Wales. 44. As to the wages claim, the applicant has provided a table comparing the amounts that Mrs Kassis was paid with the amounts that Ms Nasser was paid (at [19] of the Amended Statement of Claim). The table includes two amounts of pay that fall outside of the relevant statutory limitation of the claim, and these have been deducted from the amount claimed in the applicant s closing submissions. The applicant submits, the amount of the difference comes to $80, I am satisfied that the applicant was underpaid. However, I find it very difficult to reconcile the amounts in the table with the applicant s evidence upon which it is supposedly based (see [42] of Submissions). The only firm evidence about the applicant s and Ms Nasser s wages is as follows. Mrs Kassis was originally paid $2, per month (see [14] and [15] of Mrs Kassis affidavit). Mrs Kassis noticed that Ms Nasser was at that time paid $3, per month (see [14] and [15] of Mrs Kassis affidavit). Mrs Kassis wage increased by $120 per month at two unidentified points in time. Mrs Kassis final two pay envelopes are stamped with an amount of $2, The court is of the opinion that the tables utilised by the applicant in her amended statement of claim must be disregarded. There appears to be a discrepancy between the applicant s own evidence that her pay increased on at least two occasions by $ per month over the years, and the gross pay featured in the tables which increases and decreases. The pay for Ms Nasser also fluctuates over the years. It is concerning that the applicant s own evidence on her pay is scarce, but that this table is complete. Another piece of evidence on wages is a Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 17

23 statutory declaration (attached at VK-F) for net payment from 1 July 2010 to 31 January 2011 (a period that does not correlate with the table). It is one of six prepared by Mrs Kassis for the period of her employment, but the other five are not in evidence. This states that during that period Mrs Kassis did not have a PAYG summary and then states that she was paid $20, for the period of 1 July to 30 June. If this amount is in fact for the period of 1 July 2010 to January 2011, the court can subtract the payment of $ for January 2011, which features on the envelope annexed to Mrs Kassis affidavit, in order to calculate her pay from 1 July 2010 to 31 December This gives a half-yearly wage of $17,756.58, which would amount to a monthly wage of $2, Suffice to say, the evidence in relation to Mrs Kassis wages is sparse, and seemingly contradictory. There is in fact no evidence going directly to the calculation of the amounts in the tables. The evidence in relation to Ms Nasser s pay is even sparser. The only evidence pertaining to her wages is that Mrs Kassis saw what Ms Nasser was paid when she signed for receipt of her own wages. Whilst Mrs Kassis observed the difference in pay throughout her employment, the only figure she recalls in her evidence is the original figure of a monthly wage of $3, She states at [21] of her affidavit of 2 September 2013: each month Consulate employees signed a paper on receiving their pay. In this way I was able to see the pay for Lina Nasser. As with my pay I believe that Lina Nasser s pay did increase over the time I was employed at the Consulate. However, other than the amount referred to in paragraphs 14 and 15 above [$3,680.00], I do not recall the specific amount. 48. The court cannot make findings, even on an application under R of the Federal Circuit Court Rules, without proper evidence. The best the court can do in the circumstances is to extrapolate from Ms Nasser s pay at the date that Mrs Kassis began her employment at the Consulate (the monthly wage of $3,680) and to use this level of pay for each of Mrs Kassis claims. It is convenient to note for the calculations that follow that the court has used this monthly wage to calculate a yearly wage of $44,160.00, a daily rate of pay of $ and a weekly wage of $ Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 18

24 49. In relation to the breach of the contractual term for remuneration, therefore, utilising Mrs Kassis original pay and Ms Nasser s pay at that time, the court finds that Mrs Kassis was underpaid $1, per month, this amounts to an underpayment $35.30 per day to the nearest cent. The relevant period from 12 February 2006 to 25 February 2011 constitutes 60 months and 13 days. As such, the court finds that Mrs Kassis is entitled to $64, in compensation for underpayment of wages. Claims relating to Non-Payment or Underpayment of Entitlements 50. The applicant sets out at [23]-[25] of her statement of claim the awards under which the her employment fell, being successively, from 5 January 2005 to 9 January 2010 the Clerical and Administrative Employees (State) Award, 1 from 10 January 2010 the Clerks Division 2B State Award 2 and from 10 January 2011 to 25 February 2011 the Clerks Private Sector Award. 3 Under each Award, it is claimed that the applicant should have been categorised as a level The claims that rely on the applicant s employment falling under State Awards relate to underpayment and non-payment of entitlements under the Awards. Firstly, there is some discrepancy between the stated dates of application of the Awards and the Awards themselves. Modern Awards commenced operation on 1 January The CPS Award commenced on 1 January If Mrs Kassis was an employee covered by the CD2BS Award, a transitional instrument, its terms commenced immediately after the Division 2B referral commencement, 5 that date is defined as the time when Division 2B of Part 1-3 of the Fair Work Act 2009 (Cth) commenced, 6 being 1 January The CD2BS Award continued in effect until 1 February However, the consequence of these discrepancies is negligible, Mrs Kassis was covered by them at all times. 1 CAES Award 2 CD2BS Award 3 CPS Award 4 Clerks Private Sector Award, Clause Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Sch.3A item 3. 6 Ibid at Sch.3item 2(4A). 7 Clerks Private Sector Award, Clause 9.2. Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 19

25 52. The first claim based on the Awards is for the non-payment of superannuation. I am satisfied that the applicant was entitled to superannuation under the Awards. So much is clear from Clauses 20 of the CAES Award and the CD2BS Award and from Clause 24 of the CPS Award. It is the Applicant s unchallenged evidence that she was not paid any superannuation. Having found that the applicant was entitled to be paid at the same rate of pay as Ms Nasser, I am satisfied that Mrs Kassis superannuation should be calculated based on Mrs Nasser s pay rate at the time that Mrs Kassis began working at the Consulate. For the period of Ms Nasser s employment the minimum requisite superannuation contribution rate was of 9%. 53. Mrs Kassis superannuation was guaranteed under the Superannuation Guarantee (Administration) Act 1992 (Cth), to which the state limitation act does not apply. She is thus entitled to claim for superannuation from the beginning of her employment on 7 January From that date, Mrs Kassis pay for the entire period of her employment (6 years, one month and 18 days) should have been $269, The applicant, therefore, should have received and is entitled to $24, in superannuation. 54. The applicant makes a claim for unpaid annual leave and for underpayment of paid annual leave at [69-79] of her Statement of Claim, however it is convenient to deal with the claim at this point. The applicant s annual leave entitlement was, up until 1 January 2010, governed by the Annual Holidays Act 1944 (NSW), s.3(1)(b) of which entitles employees to 4 weeks of annual holiday. Upon termination an employee is entitled to payment in lieu of leave not taken: s.4 of the Annual Holidays Act. The CSA Award defers to the Annual Holidays Act at clause From January , the applicant s annual leave entitlement was governed by s.87 of the Fair Work Act 2009 (Cth), the relevant awards defer to the National Employment Standards. 55. The applicant claims that she accrued weeks annual leave over the period of her employment but that she only took 18 weeks of annual leave. Mrs Kassis is entitled to 6.56 weeks pay for annual leave accrued and not taken. The applicant sets out at [73] the shortfall in payment, but again this is based on the difference between her own wage and that of Ms Nasser s wage, the evidence of which has been Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 20