federal circuit court of australia · is set out in the schedule to the diplomatic privileges and...

Kassis v Republic of Lebanon [2014] FCCA 155 Cover sheet and Orders:

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


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

http://www.austlii.edu.au/au/legis/cth/consol_act/cpaia1972366/

http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/52.html


Australian Licenced Aircraft Engineers Association v International Aviations

Service Assistance Pty Ltd [2011] FCA 333

Applicant: VIVRONIA KASSIS

Respondent: 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: Mr A. Searle

Solicitors for the Applicant: Herbert Geer

For the Respondent: No appearance

http://www.austlii.edu.au/au/cases/cth/federal_ct/2011/333.html


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

$7,140.00 for the breach of s.45 of the Fair Work Act set out as

Declaration (1).


$7,140.00 for breach of s.340 of the Fair Work Act set out as

Declaration (2).


$7,140.00 for breaches of ss.351 and 352 of the Fair Work Act set out

as Declarations (3) and (4).


(4) Pursuant to s.11 of the Annual Holidays Act the respondent pay a

penalty of $880.00 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 $1,650.00 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 $64,889.90 in

compensation for underpayment of wages.


compensation for non-payment of superannuation.


compensation for non-payment of annual leave entitlements.


compensation for non-payment of leave loading entitlements.


compensation for non-payment of long service leave entitlements.


compensation for non-payment of notice upon termination.

(13) The respondent pay the applicant the sum of $20,000.00 in interest.

(14) The respondent pay the applicant the sum of $333,296.42 for loss of

future earnings.

(15) Pursuant to s.545 of the Fair Work Act the respondent pay to the

applicant $50,000.00 in damages for the effects of the respondent’s

conduct upon the applicant.

Kassis v Republic of Lebanon [2014] FCCA 155 Reasons for Judgment: Page 1

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

13.07 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


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 2011. 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 1972.



(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.




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 2013. 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 10.15 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


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

13.07 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 2013. I will briefly rehearse that evidence. Mr Gary Punch,

solicitor, has given affidavit evidence in satisfaction of Rule

13.07(1)(b).


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 2011. 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 $7,818.45 for her three months, Ms Nasser had received

$3,680.00 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 $2,606.15 and Ms Nasser’s was in the amount of

$3,680.00.

15. 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


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 2009. 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 2008. Mr Naoum’s wife had returned to live

permanently in Lebanon in August of 2007. At the second of these


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.


24. These events culminated in Mrs Kassis falling ill through stress in July

2010. 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 2010.

26. 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:


“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 07.01.2005;

And as she had worked for the consulate from 07.01.2005 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

1.03.2011 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 06.06.2006.

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


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


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?


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 2009

33. 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


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.351.

55. 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 ...

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#adverse_action






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 anti-

discrimination 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.340.

39. 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

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employer

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employee






http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s768bc.html#employee_a

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s768bc.html#employee_a




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.340.

41. 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

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#action




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 2011. 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 $80,337.84.

45. 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 $2,606.15 per month (see

[14] and [15] of Mrs Kassis affidavit). Mrs Kassis noticed that Ms

Nasser was at that time paid $3,680.00 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 $2,846.15.

46. 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 $120.00 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


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 $20,603.08 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 $2846.15 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 2010. This

gives a half-yearly wage of $17,756.58, which would amount to a

monthly wage of $2,959.43.

47. 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 $3,680.00. 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.13.07

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 $120.99 and a weekly

wage of $846.90.


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 $1,073.85 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 $64,889.90 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 Award2 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 5”.

51. 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 2010. The CPS Award

commenced on 1 January 2010.4 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

2010. The CD2BS Award continued in effect until 1 February 2011.7

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 2.1. 5 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.


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

2005. From that date, Mrs Kassis’ pay for the entire period of her

employment (6 years, one month and 18 days) should have been

$269,275.40. The applicant, therefore, should have received and is

entitled to $24,234.79 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 14.1.1. From January 1 2010, 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 24.56 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


called into question above. The court is satisfied, however, that the

respondent breached s.4 of the Annual Holidays Act by not paying Mrs

Kassis her entitlement upon termination. Based on Ms Nasser’s

monthly wage at the commencement of Mrs Kassis’ employment, Mrs

Kassis is entitled to $5,555.66 for annual leave accrued. Contravention

of the Annual Holidays Act leads to the application of a penalty in

accordance with s.11 of that Act.

56. The applicant also claims for annual leave loading under the Awards.

Annual leave loading was required to be paid under clause 14.1.4 of

the CAES Award and the CD2BS Award and under clause 29.3 of the

CPS Award (though the applicant states 24.3 at [29]). Leave loading is

calculated under both Awards based on minimum wages in the Awards

with a loading of 17.5%. The Applicant claims $3,421.38 based on

award weekly wage of $803.00 from 5 January 2005 to 9 January 2011

and a modern award weekly wage of $836.20 from 10 January 2011 to

25 February 2011. I am satisfied that this claim is made out.

57. The applicant also claims long service leave in the sum of $5,627.25

for what is said to be an entitlement to 5 and one third weeks’ unpaid

long service leave (at [80]-[84] of the amended statement of claim).

The applicant was employed by the respondent from 5 January 2005 to

25 February 2011, a period of six years. She was therefore entitled,

upon dismissal, to long service leave. Section 4(2)(a)(iii) of the Long

Service Leave Act 1955 (NSW) provides:

“(a) Subject to paragraph (a2) and subsection (13) the amount of long service leave to

which a worker shall be so entitled shall:

(iii) in the case of a worker who has completed with an employer at least five years

service, and whose services are terminated by the employer for any reason other than

the worker’s serious and wilful misconduct, or by the worker on account of illness,

incapacity or domestic or other pressing necessity, or by reason of the death of

the worker, be a proportionate amount on the basis of 2 months for 10 years service.”

58. The court is satisfied that Mrs Kassis was not paid her entitlement and

that the respondent therefore breached s.4 of the Long Service Leave

Act. Using the ratio outlined above, 5 years of service would equate to

1 month of accrued long service leave. One year of service equates to

a further 0.2 months of leave. One month accrues 0.2 divided by 12

months of leave and one day accrues 0.2 divided by 365 months of

http://www.austlii.edu.au/au/legis/nsw/consol_act/lsla1955179/s3.html#worker


http://www.austlii.edu.au/au/legis/nsw/consol_act/lsla1955179/s3.html#employer

http://www.austlii.edu.au/au/legis/nsw/consol_act/lsla1955179/s3.html#employer




http://www.austlii.edu.au/au/legis/nsw/consol_act/lsla1955179/s4.html#month


leave. So that for the 6 years, one month and 18 days of Mrs Kassis’

employment, she should have accrued 1.2265 months of leave.8 Mrs

Kassis is therefore entitled to $4,513.52 for unpaid long service leave

entitlements based on Ms Nasser’s monthly rate of pay.

59. Failure to pay long-service leave may lead to penalties under s.10 of

the Long Service Leave Act.

60. The final claim for non-payment of an entitlement is for unpaid notice

upon termination. Section 117(1) of the Fair Work Act requires that an

employer not terminate an employee without giving notice or payment

in lieu. Pursuant to s.117(3)(a) and (b) Mrs Kassis was entitled to 5

weeks’ notice. Mrs Kassis’ evidence is that she was not paid notice.

Again the amount claimed is based on a calculation using the alleged

gross weekly wage of Ms Nasser and, in the alternative, using the

claimed $778.00 weekly wage. Consistent with the above reasoning,

the court finds it appropriate to award the failure to pay statutory notice

based on Ms Nasser’s rate of pay at the commencement of Mrs Kassis’

employment. Consequently, the court finds that Mrs Kassis should

receive $4,234.50 for unpaid money in lieu of statutory notice.

Loss of Future Earnings

61. The applicant’s final claim in relation to her pay, is for loss of future

earnings. The applicant claims a sum of $699,309.00. She claims that

this is based on Ms Nasser’s rate of pay and that it takes into account a

deduction for vicissitudes of life. The applicant claimed that

employees in the Lebanese foreign service were usually employed until

retirement and submitted that 14 years and 10 months of earnings had

been lost. This would have accounted for Mrs Kassis working with the

Consulate to age 65 in April of 2025 [DOB on medical report], the

retirement age in Australia at the time the application was made. The

court notes that when making submissions as to the contractual claim,

the applicant appears to state that the figure for loss of future earnings

should be from the date of judgment and be $665,568. The applicant

then states at [67]:

8 I note that this would amount to 5.314 weeks’ pay according to the definition of “month” in s.4(2)(a3)

of the Long Service Leave Act 1955 (NSW).


“In the alternative, if the Court looks to the evidence to identify when the Applicant

may have otherwise departed her employment from the Respondent, the only readily

identifiable, realistic alternative timeframe would be the attainment of sixty years of

age. While there is [sic] changing attitudes in society towards longer working lives, in

many parts of society the age of sixty is still regarded as an appropriate retirement age

for many. This would be seven years from now, December 2013 and would result in a

loss of $388,248 based on what the Applicant should have been paid and $282,828

based on what she was paid during her employment.”

62. Compensation for loss of future earnings may be granted pursuant to

s.545(2)(b) of the Fair Work Act in the case that an employer has

breached a civil remedy provision of the Act. The court has found that

the respondent contravened s.340(1), s.351, and s.352 of the Act, all of

which constitute civil remedy provisions pursuant to s.539.

63. The principle that compensation should put the injured party in the

position that they would have been in had the injury not been suffered

– or in the case of a breach of contract, the breach had not occurred – is

well established: Butler v Egg and Egg Pulp Marketing Board (1966)

114 CLR 185, at p 191, Haines v Bendall (1991) 172 CLR 60 at [1].

However, the court’s power to award compensation for losses caused

by an employer’s contravention of the Fair Work Act under

s.545(2)(b) is broad, and full compensation is not required: Qantas

Airways Ltd v Gama (2008) 167 FCR 537.

64. The determination of future economic loss, in particular, is necessarily

fraught with uncertainty. In the instant case, Mrs Kassis should be

put into the position she would have been in had the respondent not

contravened the Fair Work Act: Burke v Serco Pty Ltd [2013] FMCA

196. This will require a determination of the appropriate time for

which compensation should be granted.

65. The evidence suggests that employment in the Lebanese Foreign

Service is for life. As the Applicant submits at [65] of its further

submissions, ‘for life’ is best interpreted as meaning ‘working life’.

While the applicant has submitted an alternative end date of

employment at age 60, I believe that the retirement age of 65, at least at

the time of the dismissal, is more appropriate in the circumstances. The

applicant’s troubles at the Consulate were primarily with Mr Naoum.

The evidence also establishes that Mr Naoum was not to remain at the

Consulate for very long after Mrs Kassis’ dismissal. I therefore find it


plausible that Mrs Naoum’s employment could have continued until the

retirement age of 65. This would mean that the initial sum proposed by

the applicant of $699,309.00 should be applied prior to deductions.

66. In considering loss of future earnings the court must also consider the

present value of the wages which the applicant could have expected to

earn had the dismissal and injury not occurred, having regard amongst

other things to her health before the injury and to the vicissitudes of

life: see for example General Motors-Holden Pty Ltd v Moularas

(1964) 111 CLR 324 in relation to directions to juries. The court may

also make a deduction for the possibility of the applicant’s return to

work: Goodman v Pocock (1950) 15 QB 576. The evidence going to

Mrs Kassis’ current condition and prognosis will of course be

paramount, as will evidence and submissions on Mrs Kassis’ capacity

to return to work.

67. The evidence of Dr Luu is that Mrs Kassis had aggravating factors for

her psychological injury that pre-dated the injury, however, she makes

it very clear that the injury was caused by the actions of Mr Naoum.

Mrs Kassis’ present diagnosis and short and long term prognoses are

set out at [30] above. There is the suggestion that her treatment has

reduced the intensity of her major depressive disorder, but that she has

developed agoraphobia which has reduced her capacity to undertake

everyday activities.

68. In the short term, although this is not defined, Dr Luu notes that the

applicant’s anxiety and depression will continue. Dr Luu has a guarded

prognosis for full recovery long term. In her earlier report of 22

November 2011, Dr Luu notes that full recovery is unlikely.

69. However, there is evidence to suggest that the conclusion of legal

proceedings against the respondent may increase the likelihood of the

applicant’s recovery. I note that this prognosis is directly related to

Mrs Kassis’ “legal circumstances” in the report of 22 November and to

her sense of injustice in the report of 9 July 2013. In the 9 July report,

Dr Luu states in relation to the nature of the applicant’s psychological

injuries that :

“Her symptoms typically worsen in the period leading up to court proceedings

relating to this matter.”


70. Furthermore, at [30] of this decision is extracted Dr Luu’s opinion that

the “closure of these events”, which I take to mean the court

proceedings, Mrs Kassis’ may have the capacity to return to work in

part time employment. Even so, Dr Luu notes that this return would

require significant support both pharmacological and cognitive-

behavioural.

71. The applicant also submits that any work would have to be part time,

that there is no evidence as to what that work may be or of the

remuneration and finally that the applicant is unlikely to obtain work

due to her age (at [70] of further submissions).

72. In these circumstances the court can only do the ‘best it can’ with the

evidence available. The manner of calculation of wage loss cannot be

a simple multiplication of the current wage less vicissitudes. It is the

present value discounted according to the principles set out in

Todorovic v Waller (1981) 150 CLR 402. It is the court’s view upon

the evidence that Mrs Kassis would recommence her employment (part

time) within 2 years. She is entitled to 2 years loss of wages at her rate

upon termination, because Ms Nasser’s wage has not been proved, less

tax and discounted. If she returns to part time work from then until the

age of 65, the court assesses her loss at 50% of her previous net

earnings for 10 years capitalised and discounted subject to the deferred

tables less vicissitudes which, because of her age the court would put at

15% as not all vicissitudes are negative. The total award is calculated

as follows.

73. For the period post termination on 25 February 2011 up to judgment on

14 February 2014, a multiplication of the number of weeks passed,

155, and Mrs Kassis’ contractual weekly wage of $846.90 has been

used (see [47] of these reasons). This amounts to $131,269.50.

74. For the period of 2 years following judgment, Mrs Kassis is entitled to

a present lump sum calculated using her net weekly wage discounted at

3%, with a multiplier for the two years of 101.3 applied. This amounts

to: $85,790.97.

75. For the next period of 10 years at 50% of Mrs Kassis’ net weekly wage,

or $423.45, she is entitled to a lump sum calculated using that wage


discounted at 3%, with a multiplier for ten years of 451.8, deferred for

three years using a multiplier of .915. This amounts to: $175,052.96.

76. When combined and reduced by the vicissitudes, the total award is

$333,296.42.

Penalties

77. I have found that the respondent has contravened the Fair Work Act,

the provisions of the Awards applicable to the applicant, the Annual

Holidays Act 1944 (NSW) and the Long Service Leave Act 1955

(NSW).

Penalties under the Fair Work Act

78. In relation to the contraventions of the Fair Work Act, the court is

empowered, pursuant to s.546 to order pecuniary penalties against a

person who has contravened a civil remedy provision. As the applicant

submits, I am satisfied that the respondent constitutes a ‘body

corporate’ for the purposes of the Act. In Construction, Forestry,

Mining and Energy Union v State of Victoria [2013] FCA 1034

Bromberg J considered whether the State of Victoria could be subject

to civil pecuniary penalties under the Act as a ‘body corporate’. His

Honour acknowledged that States are ordinarily referred to as ‘bodies

politic’, a term absent from s.546(2), but found that the term ‘body

corporate’ could also encompass a state. That being so, the absence of

the term ‘body politic’ from s.546(2) did not exclude a State from the

possible imposition of penalties for breaches of the Act: at [100]-[122].

The ability of a court to impose civil pecuniary penalties, as opposed to

criminal penalties, against a foreign State has been affirmed in relation

to the Trade Practices Act 1974 (Cth): PT Garuda Indonesia Ltd v

Australian Competition and Consumer Commission [2011] FCAFC 52

at [211]-[212].

79. In breaching the Awards, the respondents contravened s.45 of the Act.

I have also found breaches of sections 340, 351 and 352 of the Act.

Sections 45, 340, 351 and 352 of the Act are civil remedy provisions in

accordance with s.539. I note that the applicant also sought penalties

in respect of breaches of s.87 and 117 of the Act, however, these are

http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/52.html


not civil remedy provisions. These breaches are more properly treated

as breaches of s.45 of the Act.

80. The considerations relevant to determining the penalty to be applied

were set out by Mowbray FM in Mason v Harrington Corporation

Pty Ltd t/as Pangaea Restaurant and Bar [2007] FMCA 7. As the

applicant submits, that authority has been cited with approval in the

Federal Court in Kelly v Fitzpatrick [2007] FCA 1080 and in the Full

Court in Australian Ophthalmic Supplies Pty Ltd v McAlary-

Smith (2008) 165 FCR 560.9

81. As the applicant submits, such lists of considerations should not be

wholly determinative of the penalty to be imposed and relies on the

statement of Buchanan J in McAlary-Smith at [91] that:

“Check lists of this kind can be useful providing they do not become transformed into

a rigid catalogue of matters for attention. At the end of the day the task of the court is

to fix a penalty which pays appropriate regard to the circumstances in which the

contraventions have occurred and the need to sustain public confidence in the

statutory regime which imposes the obligations.”

82. The applicant has helpfully made submissions in relation to each of

the considerations of Mowbray FM. They are:

“The nature and extent of the conduct which led to the breaches.

The conduct complained of took place from at least September 2008 and continued,

without respite but with increasing intensity and antagonism, until the termination of

the employment on or about 25 February 2011: see the Applicant's affidavit at

paragraphs 40 to 117. In terms of breach of the contractual rate of pay, and the

failure to pay other employment benefits including superannuation, the conduct in

fact commenced with the employment in December 2004. The seriousness of the

breaches and the seven year time period both indicate that penalties at the higher

range should be imposed.

The circumstances in which that conduct took place.

The circumstances were those of a significant inequality of bargaining power

involving a nation State on the one hand, acting through its representative Mr Naoum

- very senior diplomat, and a vulnerable, single woman charged with raising her two

children who desperately needed the income and security the employment afforded

her. It is clear from her evidence that this dependency caused the Applicant to remain

in the employment, despite the significant ill treatment of her. The exploitation by the

9 McAlary-Smith


Respondent of the significantly unequal positions of the parties, and the social

positions of the particular individuals concerned (Mr Naoum and the Applicant),

strongly points to a penalty at the highest end of the range being appropriate.

The nature and extent of any loss or damage sustained as a result of the breaches.

The result was not only the loss of employment and the financial and non-financial

benefits that derive from employment but also a psychiatric disorder which has

prevented her from obtaining alternative employment and from full enjoyment of her

life: see the affidavit of Dr Luu, Annexure "D", the report of 22 November 2011, at

paragraph 1 where she reports being "harassed, bullied and victimised ... associated

with significant degradation ... Leading to worsening anxiety and depression ...

[which] significantly worsened following her marriage in August 2010"; more

specifics are outlined in paragraphs 2 and 3, leading to the diagnosis of a Major

Depressive Disorder with significant melancholic features in paragraph 4. The doctor

concludes in paragraph 5 that "the likelihood of full recovery is unlikely given the

eroding nature of the attack on her psychologically." This is added to in the second

report of 9 July 2013, Annexure "E", particularly on page 3. On page 4, the doctor

states "Mrs Kassis does not have a capcity [sic] to return to her pre-injury

employment duties and it is unlikely she will ever be fit for such duties due to her

continued anxiety, depresssion [sic] and Panic Disorder which impact significantly on

her...". While the doctor also states at p4 that the Applicant "may have a capacity to

return to part-time employment following the closure of these events." (emphasis

added) this is a maybe only with no real sense of it being likely. Even if there is said

to be some likelihood, the nature of her injury is such that only the most

undemanding employment with resulting low remuneration would be achieved. The

Applicant also refers to and relies on the lay evidence of her husband, Mr Macdessi,

at paragraphs 1, 6, 7, 10, 20 and 21 as to the effect of the Respondent's actions on the

Applicant.

Whether there had been similar previous conduct by the respondent.

The Applicant is not aware of any other findings by a court of law or tribunal against

the Respondent of breaches of Australian workplace laws. However, the Applicant

asks the Court to be mindful of the material (not contradicted by the Respondent,

despite multiple opportunities to do so) of the material at Annexure "B" to Mr

Macdessi's affidavit. In particular, reliance is placed on the Sydney Morning Herald

article of July 31, 2011; the globalpost article of August 5, 2011; and the Sun Herald

article of March 11, 2012. This material discloses long-term, non-compliance with

Australian workplace laws and this Court should be mindful of this when determining

an appropriate level of penalty.

Whether the breaches were properly distinct or arose out of the one course of

conduct.

Where a party has engaged in multiple contraventions, it is relevant to consider

whether the breaches are properly attributable to a single course of conduct. As the


Full Federal Court indicated in CFMEU v Cahill (2010) 194 IR 461 at [39], this is not

a principle unique to the industrial context, deriving from the criminal law. Its

purpose is to avoid penalising someone twice for what is in essence the same conduct.

It is necessary to identify the culpability and its level of offence.

Section 557(1) of the FWA provides that for the purposes of Pt 4-1 of the Act, two or

more contraventions of the particular civil remedy provisions set out in subs (2) are,

subject to subs (3) taken to constitute a single contravention if they are committed by

the same person and they arose out of a course of conduct by the person. The absence

from subs (2) of certain civil remedy provisions (in this case, contraventions of ss340,

351 and 352) would seem to indicate a legislative intention that many of the

contraventions with which this case is concerned are not to be taken to constitute a

single contravention. However, Keane CJ and Marshall JJ said in QR Ltd v CEPU

(2010) 204 IR 142 at [49]: Even if s557(2) does not apply to a case to oblige to treat

as one contravention all the consequences of a particular piece of conduct, it is open

to the Court, in an appropriate case, to take into account, as a matter of discretion, the

circumstance that the same act or omissions have resulted in multiple contraventions

by multiple breaches of a term cast in similar language in each of multiple

agreements, by imposing a lesser penalty or even no penalty in respect of breaches of

some terms, while imposing a substantial penalty in terms of others.

Middleton and Gordon JJ described the “course of conduct” principle and its potential

application in Construction, Forestry, Mining and Energy Union v Cahill (2010) 269

ALR 1 at [39] in this way: The principle recognises that where there is an

interrelationship between the legal and factual elements of two or more offences for

which an offender has been charged, care must be taken to ensure that the offender is

not punished twice for what is essentially the same criminality. That requires careful

identification of what is “the same criminality” and that is necessarily a factually

specific enquiry."

Based on the above, it can be seen on the facts of this matter that while the conduct of

the Respondent could be characterised as stemming from a complete contempt of the

employment standards set by Australian law, there are a number of discrete breaches

for which a penalty should be imposed. They are: multiple breaches of the two

industrial instruments made under the FWA (the Clerks Division 2B State Award and

the Clerks Private Sector Award) as to superannuation, annual leave and annual leave

loading, which pursuant to s557(2)(b) of the FWA must be treated as arising from a

single 'course of conduct'; breaches of each of ss340, 351 and 352 of the FWA which

although comprising some six breaches should really be treated as two; the first

arising from the course of conduct of bullying and harassment during employment

and the second and separate conduct of terminating the employment. The final breach

under the FWA, which while being twofold must also be treated as a singie [sic]

breach by s557(2)(a), is the failure to make certain payments at the termination of

employment, required by the National Employment Standards, for that part of the

Applicant's unpaid entitlement to annual leave that arises under the terms of the FWA

(ss87 and 90(2) of the FWA; Order 27 of the Amended Points of Claim) and also to

make payment for the failure to give notice of termination of employment (s117 of


the FWA; Order 28 of the Amended Points of Claim). In total, there are some four

breaches of the civil remedy provisions of the FWA for which this Court may impose

a penalty.

The starting point must be the penalty fixed by Parliament. In the case of a body

corporate, s546(2) of the FWA provides that the maximum penalty is five times the

maximum number of penalty units referred to in the relevant item in column 4 of the

table in sub 539(2). That number is 60. A penalty unit at the relevant time is $110:

Crimes Act 1914 (Cth) s4A. Accordingly the maximum penalty for each

contravention is $33,000, making the total penalties available under the FWA

$132,000. It is submitted that each of the breaches are in the most serious range,

being $22,000-$33,000 for each of the four breaches. This makes the total penalty fall

into the $88,000-$132,000 range.

Pursuant to the associated jurisdiction of this Court conferred by s18 of the Federal

Circuit Court Act 1999 (Cth), this Court can also impose penalties for breach of s12

of the Annual Holidays Act 1944 (NSW) and s11 of the Long Service Leave Act

1955 (NSW) (see Orders 32 and 33 of the Amended Points of Claim). Most of the

Applicant's entitlement to paid annual leave (prior to 10 January 2010) arose under

the NSW annual holidays legislation as well as the Clerks State Award and non-

compliance gives rise to a penalty of 10 penalty units. As each unit is $110 (see the

Crimes (Sentencing Procedure) Act 1999 (NSW) s17) this is a maximum penalty of

$1100, regardless of whether the offender is a natural person or a corporation. The

breach of the long service leave legislation gives rise to a penalty of 20 penalty units,

or $2,200: s10, again regardless of whether the offender's status. While these arise

under NSW law rather than the FWA, it is submitted they should be approached in

the same way, including the level of seriousness. this would make the range for the

annual holidays penalty to be between $2,200.00-$3,300.

The size of the business enterprise involved.

The 'business enterprise' is nation State and so must be taken to be an employer of

significant size.

Whether or not the breaches were deliberate.

The evidence discloses that the breaches were deliberate.

Whether senior management was involved in the breaches.

Senior management in the form of the Consul-General, Mr Naoum, caused the

breaches to occur. However, compounding the culpability, other even more senior

'management' have by their actions condoned this behaviour: see affidavit of Sid

Macdessi at paragraphs 9, 15, 16 and 18 relating to the Lebanese Ambassador to

Australia, Dr Jean Daniel. See also paragraph 17 relating to Consul Meher Kheir and

paragraph 19 relating to Consul George Ghanem. Note also the instrumental role of

Mr Bassam Chehade, the accountant at the Consulate: affidavit of the Applicant,


paragraphs 16, 17, 46, 50-62, 85-87 and 95; and the affidavit of Mr Sid Macdessi at

paragraphs 12-14 and 19.

Whether the party committing the breach had exhibited contrition.

No contrition has been shown by the Respondent, including by those representatives

referred to above. In fact, the evidence discloses wilful contempt by the Respondent

through the actions and attitudes expressed by its servants and agents: see the

affidavit of Sid Macdessi at paragraph 12 wherein Mr Bassam Chehade states: "The

laws of Australia are irrelevant.", repeated in paragraph 13 wherein Mr Chehade

states the Consulate has no workers' compensation insurance to cover the Applicant

because "We work under Lebanese law." (Your Honour may recall asking Counsel

about workers' compensation. While your Honour was addressed on this point,

further information is contained in paragraph 13 of Mr Macsessi's affidavit.) This

attitude is repeated by new Consul George Ghanem in paragraph 19 of Mr Macdessi's

affidavit and is repeated by the Lebanese Ambassador to Australia, Dr Jean Daniel, in

a conversation with the Applicant's solicitor: see the affidavit of Mr Gary Punch

sworn 4 April 2013 at paragraph 8. Paragraphs 9 and 10 discloses compkete

indifference to these proceedings. Attention is also drawn to paragraph 14 of Mr

Punch's affidavit and attachment "C" thereto which discloses that the official position

of the Respondent is to comply with local employment laws.

Whether the party committing the breach had taken corrective action.

No corrective action has been taken by the Respondent. See the affidavit of the

Applicant at paragraphs 96, 104, 106 and 114.

Whether the party committing the breach had cooperated with the enforcement

authorities.

This is not a prosecution brought by an Australian regulatory body, such as the Fair

Work Ombudsman, but by an individual whose rights have been seriously breached

by the Respondent. However, the material in Mr Macdessi's affidavit at Annexure

"B" reveals complete non-compliance with efforts by the FWO to investigate this

matter: paragraph 12 of Mr Macdessi's affidavit and the final Sun Herald article of

March 11 2012 in Annexure "B" relating to this very matter. The material discloses

that there was a refusal to co-operate with both the Australian Human Rights

Commission and the Fair Work Ombudsman in relation to the complaints of the

Applicant. There was also no effort to co-operate with the FWO during conciliation

of this matter before what is now the Fair Work Commission. ln addition, there was

refusal to produce all records and documents relating to the Applicant's employment

including copies of her contract, payslips, as well as documents relating to the

termination of her employment. (Note that in mid- March 2012, the Lebanese

Ambassador to Australia, Dr Jean Daniel, states the present matter has been a "long

run and embarrassing matter. We do not want any more bad publicity.": affidavit of

Sid Macdessi, paragraph 18.) The Applicant also refers to the affidavit of her

solicitor, Mr Punch sworn 8 April 2013 at paragraphs 8-13, including attachments,


which discloses an attitude of contempt by the Respondent towards Australian

workplace laws.

The need to ensure compliance with minimum standards by provision of an effective

means for investigation and enforcement of employee entitlements.

This is a particularly important aspect of relevance to this matter, given the evidence

discloses not only disregard for Australian workplace laws but also efforts by the

Respondent to frustrate and delay processes by which the Applicant has sought

redress for the various breaches of Australian workplace laws. This factor suggests a

penalty at the highest range is appropriate here.

The need for specific and general deterrence.

It is well established that both specific and general deterrence are significant factors

which are relevant to the imposition of penalties under the WR Act and FW Act: see

Community and Public Sector Union at [9]; Finance Sector Union v Commonwealth

Bank of Australia (2005) 224 ALR 467 at [60]. Given legislative changes and

increases in penalties in recent years, a “light handed approach” to the imposition of

civil penalties for contraventions of industrial law is no longer applicable: Finance

Sector Union at [72].

Justice Gray in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union

(2008) 171 FCR 357 at [37] observed:

Specific deterrence focuses on the party on whom the penalty is to be imposed and

the likelihood of that party being involved in a similar breach in the future. Much will

depend on the attitude expressed by that party as to things like remorse and steps

taken to ensure that no future breach will occur.

Relevantly, Barker J recently said in Australian Licensed Aircraft Engineers

Association v International Aviation Service Assistance Pty Ltd (No 2) (2011) 205 IR

465 at [19]:

The law of Australia has for a long time emphasised the importance of industrial

freedom of association. The FW Act marks out industrial freedom of association as

one of its important objectives. I take into account in this case the need for a

pecuniary penalty to reflect the importance of the maintenance of that objective of the

FW Act.

The role of general deterrence in determining the appropriate penalty is illustrated by

the following statement of Lander J in Ponzio v B & P Caelli Constructions Pty Ltd

(2007) 158 FCR 543 at [93]:

In regard to general deterrence, it is assumed that an appropriate penalty will act as a

deterrent to others who might be likely to offend: Yardley v Betts (1979) 22 SASR

108. The penalty therefore should be of a kind that it would be likely to act as a

deterrent in preventing similar contraventions by like minded persons or


organisations. If the penalty does not demonstrate an appropriate assessment of the

seriousness of the offending, the penalty will not operate to deter others from

contravening the section. However, the penalty should not be such as to crush the

person upon whom the penalty is imposed or used to make that person a scapegoat. In

some cases, general deterrence will be the paramount factor in fixing the penalty: R v

Thompson (1975) 11 SASR 217.

Similarly in Community and Public Sector Union v Telstra Corporation Limited

(2001) 108 IR 228 at [9] Finkelstein J said:

... even if there be no need for specific deterrence, there will be occasions when

general deterrence must take priority, and in that case a penalty should be imposed to

mark the law's disapproval of the conduct in question, and act as a warning to others

not to engage in similar conduct.

As Barker J stated in Australian Licensed Aircraft Engineers Association at [20]:

At a general level, persons in the position of an employer must receive a message,

indicated by the imposition of a pecuniary penalty, that much more than lip service is

to be paid to the objectives of the FW Act in relation to industrial freedoms.

The Applicant submits that general and specific deterrence is an important factor in

the present case, and that such a message ought be delivered by the Court to the

general community and employers particularly, that the breaches by the State of

Lebanon were substantial and unacceptable contraventions of Commonwealth

workplace laws.

83. With the exception of the submissions as to “Whether the breaches

were properly distinct or arose out of the one course of conduct”, I

adopt these submissions. I accept that the penalties imposed should be

at the higher range.

84. However, there are issues with regards to which contraventions should

be treated as one for the purposes of assessing penalties due to their

shared course of conduct. The submissions above do not take into

account the various issues related to the way in which the claims were

brought that have been identified by the court.

85. The court has found that s.340 was breached because the respondent

took an adverse action against the applicant in dismissing her because

she exercised a workplace right in making a complaint. The court did

not find a separate breach on the grounds of the harassment and

bullying suffered by the applicant on the basis that this claim was not

pleaded satisfactorily.


86. The court has found a breach of s.351 on the basis of that the bullying

and harassment of the applicant constituted an adverse action

(discriminating between Mrs Kassis and other employees) taken

because of her sex and marital status, and also found a breach on the

basis of her dismissal because of her sex and her marital status. This

could be construed as two separate breaches for the purpose of

applying penalties. The court notes that the second breach arises out of

the same course of conduct as that of the breach of s.340.

87. The court has found a breach of s.352 based on the applicant’s

dismissal for her temporary absence from work. The course of action,

the dismissal, is the same as for the breaches of s.340 and s.351.

88. The court agrees that the contraventions relating to the Awards must be

treated as one contravention, in accordance with s.557(1)(a) and (b)

and s.557(2)(b). The applicant correctly notes that sections 340, 351

and 352 do not appear under s.557 of the Act and therefore multiple

contraventions of them need not be treated as a single contravention.

On this basis, the two breaches of s.351 may be treated as separate

contraventions each attracting a penalty.

89. The court is required to determine an appropriate penalty for each

breach, and then synthesise its findings taking into account the fact that

in the case of breaches of sections 340, 351 and 352, the dismissal

constituted a common course of conduct: McAlary-Smith at [23] as

cited in the extract of the applicant’s submissions above.

90. The maximum penalty for breaches of ss.45, 340, 351 and 352 a non-

individual employer, such as the respondent, is 60 penalty units, each

penalty unit representing a penalty of $170.00.10 I have accepted that

the penalties should be within the higher range given the conduct of the

respondent, in particular, the disrespect with which it treated both the

applicant and this court. I am of the view that there should only be one

penalty in respect of the alternative breaches of s.351 and 352. Taking

into account all the matters discussed in these reasons I would order

that the respondent pay a penalty for breach of s.45 of the Fair Work

Act of 42 penalty units, in the sum of $7,140.00. I would order that the

respondent pay a penalty in respect of the breach of s.340 of the Act of

10 See Fair Work Act s.12 and Crimes Act 1914 (Cth) s.4AA.


42 penalty units, in the sum of $7,140.00. And in respect of the

alternative breaches of ss.351 and 352 it shall also pay a penalty of 42

penalty units, being the sum of $7,140.00.

91. The applicant also claims for breaches of the Annual Holidays Act

1944 (NSW), and the Long Service Leave Act 1955 (NSW). Both of

these breaches have been made out. The maximum penalty for a

breach of the Annual Holidays Act is 10 penalty units. The

maximum penalty for a breach of the Long Service Leave Act is 20

units. Each penalty unit under New South Wales consolidated acts

represents a penalty of $110.00.11

92. In regards to the breach of the Annual Holidays Act a penalty of 8

penalty units, in the sum of $880.00 shall be imposed upon the

respondent and in respect of the breach of the Long Service Leave Act,

a penalty of 15 penalty units, in the sum of $1,650.00 shall be imposed.

93. The total amount of the penalties being $23,070.00 shall be paid to the

applicant pursuant to s.546(3) of the Fair Work Act, s.11 of the Annual

Holidays Act and s.10 of the Long Service Leave Act.

Damages

94. Damages in relation to the contractual breaches in relation to

underpayment have been included in the paragraphs above.

95. The applicant’s claim for damages for non-completion of the

employment contract was argued in the alternative to the claim for loss

of future earnings under the Fair Work Act. I have found that the

applicant was entitled to such compensation under the Fair Work Act.

In calculating such compensation I have utilised the applicant’s further

submissions in relation to its contractual claim in the calculation of that

loss because the considerations are identical. I will therefore not revisit

those considerations here as the applicant may not recover twice for

what is essentially the same loss.

96. The applicant also submits that the respondent should be made to pay

general damages for psychiatric injury for the breach of contract (at

11 Crimes (Sentencing Procedure) Act (NSW) s.17.


[72] of Applicant’s further submissions). This is not a claim made in

the application before the court nor does it appear in the statement of

claim.

97. The court has power under s.545, to award damages based upon the

effects of the conduct on the applicant: Australian Licenced Aircraft

Engineers Association v International Aviations Service Assistance Pty

Ltd [2011] FCA 333 per Barker J at [441]. Taking into account the

psychiatric evidence of Dr Luu, the court believes an appropriate award

would be in the sum of $50,000.00.

98. The applicant also appears, in its further submissions, to make a claim

for general damages for sexual harassment. Again this claim is not

made at any other point, either in the amended application or the

amended statement of claim. It is framed in the submissions by

analogy to a breach of the Australian Human Rights Commission Act

1986 (Cth) pursuant to s.46PO. It would appear that the applicant

seeks to bring such a claim under s.545 of the Fair Work Act. But what

the applicant is attempting to do is to bring a claim for sexual

harassment under the Fair Work Act. That is not the purpose of the

Act.

Interest

99. The applicant is entitled to interest on the amounts found to be owing

for the underpayment of her wages and for the failures to make

payment under the Annual Holidays Act and Long Service Leave Act.

She is also entitled to interest on notice upon her termination. Given

the period of time involved in regard to these underpayments, the court

believes that it should exercise its discretion to award a general lump

sum in respect of interest in regard to all those items upon which

interest is claimed and claimable in the sum of $20,000.00.

Conclusion

100. In summary, the court has found that in discriminating against Mrs

Kassis and in dismissing her because of her exercise of a workplace

right and because of her temporary absence from work the respondent

breached ss.340, 351 and 352 of the Fair Work Act. The respondent

http://www.austlii.edu.au/au/cases/cth/federal_ct/2011/333.html


also breached s.45 of the Fair Work Act through its contravention of the

Awards under which Mrs Kassis’ employment fell.

101. The court has also found that because of its underpayment of wages,

the respondent breached its contract of employment with Mrs Kassis.

It has awarded the sum of $64,889.90 in compensation for

underpayment of wages.

102. For the breaches of the Fair Work Act, the Annual Holidays Act 1944

(NSW) and the Long Service Leave Act 1955 (NSW) the court has

found that the respondent should pay penalties in the sum of:

$23,070.00.

103. The court has awarded compensation for non-payment of

superannuation in the sum of $24,234.79, compensation for

underpayment of annual leave entitlements in the sum of $5,555.66 and

$3,421.38 for leave loading entitlements, compensation for non-

payment of long service leave entitlements in the sum of $4,513.52,

and compensation for non-payment of notice upon termination in the

sum of $4,234.50.

104. The court has also awarded interest on the sums for compensation in

the sum of $20,000.00.

105. For loss of future earnings, the court has calculated that a sum of

$333,296.42 is appropriate.

106. Finally, the court has found that an appropriate award for damages

based on the effects of the respondent’s actions upon Mrs Kassis

should be the sum of $50,000.00.

I certify that the preceding one-hundred-and-six (106) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate:

Date: 14 February 2014

federal circuit court of australia · is set out in the schedule to the diplomatic privileges and...

Documents