Cultural Office of the Embassy of the State of Kuwait v Soliman

1. The parties be granted leave, nunc pro tunc, to be legally represented in the proceeding pursuant to s 548(5) of the Fair Work Act 2009 (Cth).
2. The appeal be allowed.
3. Order 1 of the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 14 December 2021 be set aside and lieu thereof, order the respondent (the Cultural Office) pay the applicant (Mr Soliman) the amount of $19,047.00.
4. The respondent's (Mr Soliman's) application for costs of the appeal under s 570(1) on the basis of s 570(2)(b) of the Fair Work Act 2009 (Cth) be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

background 1 This is an appeal from orders made by the Federal Circuit and Family Court of Australia (Division 2) on 14 December 2021: Soliman v The Cultural Office of the Embassy of the State of Kuwait [2021] FedCFamC2G 351 (hereafter "J"). 2 The appellant (Cultural Office) is part of the Embassy of the State of Kuwait in Canberra. Mr Soliman (the respondent) was an "academic advisor" employed by the Cultural Office. His employment was regulated by an employment contract dated 16 June 2014, and the Protocol of the regulations for locally engaged staff employed at the State of Kuwait No 45/99 (Protocol). Clause 5 of the employment contract incorporated the Protocol. The contract and the Protocol were written in Arabic and agreed translations of these documents were provided to the Court before the hearing. 3 Mr Soliman commenced working for the Cultural Office on 16 June 2014. Before the critical events, Mr Soliman had received two disciplinary warnings from the Cultural Office in relation to his workplace conduct. 4 On 13 November 2018 the Head of the Cultural Office, Mr Alrefae, discussed at an interview with Mr Soliman a complaint received from a student who was sponsored by the Cultural Office. The complaint related to Mr Soliman's alleged conduct on a telephone call or calls with the student. In the course the interview, Mr Alrefae asked Mr Soliman questions regarding the complaint. After the meeting, Mr Alrefae attempted to give Mr Soliman a written disciplinary warning and notes of the meeting. Mr Alrefae advised Mr Soliman that his employment would be terminated once the Ministry of Higher Education in Kuwait approved Mr Alrefae's decision. 5 Mr Soliman's evidence was that he understood his employment was suspended. He worked the remainder of the day on 13 November 2018 and did not return. His access to his work emails was cancelled. 6 Mr Soliman wrote an email to the Cultural Office on 17 November 2018, amongst other things, enquiring about his employment status. In that email, Mr Soliman also made various submissions, including about what had occurred during the meeting with Mr Alrefae. 7 No response was given by the Cultural Office to Mr Soliman's enquiry of 17 November 2018 about his employment status. 8 According to Mr Alrefae's affidavit, Mr Alrefae sent a letter to the Ministry of Higher Education in Kuwait on 20 November 2018 seeking confirmation of his decision to terminate Mr Soliman's employment. This letter was not in evidence. The affidavit explained the reason for this as being that it was written in Arabic and that it contained information about the person who made the complaint. 9 On 9 January 2019, the Ministry of Higher Education sent an email to Mr Alrefae confirming a decision to terminate the employment of Mr Soliman. 10 The primary judge at J[90] found that the effect of the meeting on 13 November 2018 was that Mr Soliman was suspended from work. His contract was not effectively terminated until 10 January 2019. This was also the finding of the Fair Work Commission where Mr Soliman had earlier brought proceedings. On 10 January 2019, Mr Soliman had filed an application with the Commission seeking an extension of time to lodge a general protections dispute. The decision of the Deputy President of the Commission was that the application was filed within the statutory timeframe and no extension was required because the date of termination of Mr Soliman's employment was 10 January 2019: Emad Soliman v The Cultural Office of the Embassy of the State of Kuwait [2020] FWC 3142. 11 There was no dispute on appeal that the termination of Mr Soliman's employment occurred on 10 January 2019. There was also no dispute at the hearing of the appeal that Mr Soliman was not provided reasons for termination of his employment on 10 January 2019. 12 After termination of Mr Soliman's employment on 10 January 2019, the Cultural Office retrospectively paid Mr Soliman's superannuation entitlements of $23,819.97, presumably with a view to complying with its obligations under the Superannuation Guarantee (Administration) Act 1992 (Cth). This occurred on 3 April 2019. 13 The proceedings the subject of this appeal were commenced by Mr Soliman on 17 October 2019. He sought payment of an amount of $20,000.00, being the maximum for a small claim within the meaning of s 548 of the Fair Work Act 2009 (Cth) (FW Act). 14 Mr Soliman's application was subsequently amended. Mr Soliman advanced three claims, but limiting the total amount claimed to $20,000. The three claims were: (1) $10,585.00 for an end of service entitlement; (2) $9,760.00 for two months' notice period; and (3) $9,287.00 for the period of his suspension from 14 November 2018 until termination on 10 January 2019. 15 Each of these claims was apparently accepted by the primary judge, although the primary judge misunderstood the nature of the first claim as being one for superannuation. 16 The Cultural Office appealed on two grounds, namely that the trial judge erred in finding: (1) at J[83] that the Cultural Office was required to pay Mr Soliman superannuation entitlements that took into account calculations for an end of service payment under Article 37 of the Protocol; and (2) at J[86] and J[89] that the Cultural Office was required to provide Mr Soliman with two months' notice of termination of employment in accordance with clause 4 of the Contract and Article 33 of the Protocol, with the consequence that Mr Soliman was entitled to payment in lieu of two-months' notice pursuant to Clause 4 of the contract. 17 There was no dispute at any stage of the appeal that Mr Soliman was entitled to the payment of $9,287.00 for payment in respect of the suspension period between 14 November 2018 and termination on 10 January 2019. 18 During the course of argument on appeal, the appellant abandoned the second ground summarised above, leaving ground 1 as the sole issue for determination. 19 The appellate jurisdiction of this Court was exercised by a single judge pursuant to section 25(1AA)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). It was also considered appropriate that the parties be granted leave to be legally represented in these proceedings pursuant to section 548(5) of the FW Act.