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[2018] FWC 4311
General information, not legal advice.
Fair Work Commission
2018-08-03
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 3 August 2018.
The replacement document makes minor formatting, paragraph numbering and typographical corrections and, at paragraphs [20] and [90] replaces "DIBT" with "DIBP" and at paragraph [54] replaces "4 November 2017" with "27 October 2017".
s.394 - Unfair dismissal
[1] Juliet Buenaobra ("the applicant") is a national of the Republic of the Philippines ("the Philippines"). The applicant was recruited from the Philippines by Anwar Alesi ("the respondent") to work in Australia pursuant to a contract of employment as a foreign domestic worker under a 403 visa - namely, a Temporary Work (International Relations) subclass 403, Domestic Worker (Diplomatic or Consular) visa.
[2] From the commencement of employment in January 2015 until the applicant was dismissed in November 2017, the respondent employed the applicant to perform domestic work, including childcare/nanny-type work, in her private residence. The applicant has made an application pursuant to s.394 of the Fair Work Act 2009 ("the Act") with respect to that dismissal. In the application before the Commission, the applicant alleges she was unfairly dismissed by the respondent, and seeks an unfair dismissal remedy concerning her dismissal.
[3] At the time of entering into the contract of employment, the documentation prepared by the respondent indicated she was then a First Secretary (Consul) employed at the Sydney offices of the Consulate-General of the Republic of Iraq. At the time of the proceedings concerning this application for an unfair dismissal remedy, the respondent was the then acting Consul-General of the Republic of Iraq.
Section 396 - Initial matters to be considered before merits
[4] Section 396 of the Act specifies certain initial matters to be considered before considering the merits of the application. As to those matters, I am satisfied that: the application was made within the period required in s.394(2) of the Act; the applicant was, as will be developed below, a person protected from unfair dismissal; the dismissal, with a payment in lieu of notice and in the absence of prior warning/s within the meaning of the Small Business Fair Dismissal Code, was not consistent with that Code_;_ and the dismissal did not involve a case of genuine redundancy.
[5] The initial matter raised in the respondent's written and oral submissions was the operation of the Consular Privileges and Immunities Act 1972 (Cth), applied to the circumstances of the applicant's employment by the respondent. The submissions for the respondent noted that the contract under which the applicant worked for the respondent was entered into in the Philippines by the applicant (and by the respondent in Sydney). The submissions for the respondent referred to the written communications between Australia's Department of Foreign Affairs and Trade ("DFAT") and the Republic of Iraq concerning the respondent's employment of the applicant. It was submitted that because the agreement was in relation to the applicant's employment there must be, directly or indirectly, an express or implied agency the respondent was acting on behalf of the Consulate-General when she employed the applicant. Against the background of such matters, it was submitted that full diplomatic privileges apply and the respondent "is immune from these proceedings" ("the immunity point").
[6] As to the immunity point raised by the respondent, the applicant submitted:
1.1 The Fair Work Commission has the jurisdiction to hear this application for an unfair dismissal remedy because:
1.2 Section 383 of the FW Act, which is in Part 3-2 of Act FW provides:
In this Part, employee means a national system employee, and employer means a national system employer.
(a) any person in a State that is a referring State because of this Division so far as the person employs, or usually employs, an individual; and
(b) a holder of an office to whom subsection 30E(2) applies.
1.4 The respondent, Anwar Alesi (Alesi) is a national system employer under s.30D of the FW Act the FW Act, because:
1.5 Buenaobra is a national system employee because she was, at the time of the dismissal, employed by Alesi, who is a national system employer: s 13 of the FW Act.
2.1 Alesi is the First Secretary (Consul) of the Consulate of the Republic of Iraq. Alesi is amenable to the jurisdiction of the FW Act and the Fair Work Commission under Article 43 (2) of the Vienna Convention on Consular Relations as incorporated in Australia under in the Consular Privileges and Immunities Act 1972 (Cth) (Convention).
2.2 Article 43(1) of the Convention provides that consular officers and employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.
2.3 Article 43(2) of the Convention relevantly provides:
The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either:
(a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or
(b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.
2.4 Buenaobra submits that consular privilege does not apply to Alesi in relation to her employment of Buenaobra in her private home because:
2.5 Buenaobra relies on the following in respect of paragraph 2.4 above:
I have entered into an employment agreement with the domestic worker, whose details are set out hereunder, which is in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards and is in relation to their undertaking full-time domestic duties in my private household in Australia.
This document is attached to the Buenaobra Statement at paragraph 2.
3. The applicant is a person protected from unfair dismissal
3.1 Buenaobra is a person protected from unfair dismissal because:
[7] Given the applicant meets each of the eligibility criteria specified in the Act, I am satisfied the applicant was a person protected from unfair dismissal and, thereby, eligible to make an application with respect to an unfair dismissal remedy concerning her dismissal by the respondent. It is otherwise, in my view, beyond the proper jurisdictional remit of the Fair Work Commission to purport to determine matters as to whether the respondent is immune from these proceedings.
[8] If, however, it was within my proper jurisdictional remit to purport to pass upon such matters I am bound to observe that the submissions for the applicant were persuasive on the immunity point. Here, the employment of the applicant by the respondent involved a contract of employment directly between the applicant and the respondent, and entirely in connection with the performance of domestic work (and childcare-related work) in the respondent's private residence. The employment of a private domestic worker performing the role that the applicant undertook would not, it seems to me, be within the official consular functions of the respondent and, therefore, it also seems to me, there is no immunity to be claimed. That is, the respondent's employment of the applicant to perform domestic work in her family's private residence in Australia and to undertake childcare-related work was not done on behalf of the Republic of Iraq and was not, for example, an exercise of the diplomatic functions of the consulate.
[9] As to the approach of Australian courts in the context of employment matters, see the recent judgment of the Full Court of the Federal Court of Australia in Republic of Italy (Minister of Foreign Affairs and International Cooperation - Adelaide Consulate) v Benvenuto [2018] FCAFC 64 (per White J; Allsop CJ and Besanko J concurring). Among other cases, see also Kassis v Republic of Lebanon [2014] FCCA 155.
[10] As to the consideration of the scope of diplomatic immunity in UK cases, see judgments particularly including Reyes v Al-Maki and Anor [2017] UKSC 61 (a judgment that also considered human trafficking, and the associated issues; and where, for instance, Lord Wilson observed at 59: " ... the UK confronts a significant problem in relation to the exploitation of migrant domestic workers by foreign diplomats."). See also Benkharbouche v Secretary of State for Foreign Affairs and another matter [2017] UKSC 62 from para 53.
[11] The applicant made sound recordings of conversations that occurred on 6 and 9 November 2017 at the respondent's residence. These recordings were made by the applicant without the knowledge or consent of the respondent or her husband, Mr Ammar Salman (or the children). The respondent objected to the admission of those recordings.
[12] While it is the case that it is an offence under various laws to covertly record private conversations in New South Wales, there are exceptions - including that the recording was made in the protection of lawful interests. As with the immunity point, it is not jurisdictionally apposite for me to purport to determine matters with respect to the offences and exceptions in relation to covertly-recorded conversations. As to the objection to the admission into evidence of the sound recordings, I have, however, otherwise decided that the content of those recordings is relevant to the issues arising for determination, including contested matters of fact in the evidence before me. Separately, as to evidence that may have been improperly or illegally obtained, and the operation of the Evidence Act 1995 (Cth) as to such matters, the Commission is not bound by the rules of evidence.
[13] The evidence of the sound recordings has led to the situation where I do not have to determine whose version of the strongly-contested evidence is to be preferred as to the conversations and other matters. The sound files speak for themselves, as it were (transcripts of the recordings were also tendered, but the transcription simply just does not convey the sense of what is actually heard unfolding in the first sound recording as to the disgraceful things said to the applicant, and the manner in which they were said to her). Moreover, the sound recordings have proved relevant in giving context and resonance to other aspects of contested evidence, such as in the discussion concerning amounts then being paid to the applicant by the respondent as well as various other matters. All told, I preferred and accepted the applicant's evidence where there was a contest, albeit I acknowledge there were some discrepancies as to the payments of amounts of $750 as against $800 and the like (albeit there were far greater discrepancies and/or implausible aspects in the evidence for the respondent about matters such as the payments made). I have also considered the fact that the applicant initially told DFAT at the first meeting that she was being paid a certain amount, as addressed later in this decision. I accept her evidence as to why she stated this to DFAT.
[14] An application was made by the respondent that an order under s.593(3) of the Act should be made. Section 593 reads, in part:
(2) If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).
(3) The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:
(a) orders that all or part of the hearing is to be held in private;
(b) orders about who may be present at the hearing;
(c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;
(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:
(ii) matters contained in documents before the FWC in relation to the hearing.
[15] The order or orders sought by the respondent were to the effect of prohibiting or restricting the publication of, or disclosure to members of the public of, evidence given by the respondent and her husband in the proceedings. The basis for this application was that the respondent is a counsel for the government of Iraq. It was submitted that the respondent held concern about her position, and also held concern that the relationship between the Iraqi government and Australian government is "very delicate". It was further submitted that the respondent is concerned that if any of her evidence or her husband's evidence becomes public then that may affect her Consul-General's position, and the relationship between the two countries.
[16] I am not satisfied on the basis of what was put, or otherwise persuaded as a matter of the exercise of discretion, that it is appropriate to make confidentiality-type orders sought by the respondent. Indeed, my consideration of what was disclosed in the evidence as to what occurred between this diplomat and the foreign domestic worker formerly in her employ militates against making an order having the effect of confidentiality.
Abuse of process and/or frivolous and vexatious application
[17] The respondent's written outline included the submission that the proceedings before the Commission "are nothing short of a practice and procedure that is both unjust and unfair especially in relation to the position of the respondent". The effect of the written submissions for the respondent was that the Commission had inherent jurisdiction to dismiss the application, and should do so on the basis of the submissions advanced therein. The submissions continued that the applicant, in bringing the proceedings, had the ulterior motive and improper purpose of causing damage to the respondent.
[18] The respondent's written outline of submissions also put that "when the facts are known, it will become apparent" the applicant's proceedings before the Commission are "not supported by the facts", are "insupportable in law", disclose "no cause of action", and are otherwise "plainly groundless". In such respects, the written outline invited the Commission to find the application was, among other matters, frivolous and vexatious.
[19] Given the conclusions set out later in the decision as to the applicant's application for an unfair dismissal remedy, it is unnecessary to address in this decision the submissions for the respondent that the application should be dismissed on the foregoing bases.
[20] It is relevant, by way of background, to describe some of the matters concerning the formation of the employment relationship between the applicant and the respondent, and the associated visa-type arrangements and employment conditions concerning working in Australia - in as much as those matters were to be intertwined with the eventual dismissal.
The evidence of the respondent noted that her position entitles her to employ a foreign domestic worker. Against that background, the respondent made inquiries with DFAT to bring a domestic worker from the Philippines.
The respondent decided to bring the applicant from the Philippines, given the applicant was recommended to the respondent through a friend of the respondent's husband. (There was a suggestion, arising in the sound recordings, that a fee-charging agency was also involved, given comments made by Mr Salman about deducting from the applicant's remuneration a "recruitment agency cut" of $200 a month.)
DFAT correspondence dated 9 September 2014 concerning approval sought by the respondent to employ the applicant as a foreign private domestic worker noted, in part:
"The Department would respectfully like to remind the Consulate-General that all employment contracts for private domestic workers need to accord with standards of wages and employment conditions for under [sic] Australian workplace laws. Further information can be obtained from Fair Work Ombudsman (Fair Work Ombudsman Infoline on 131 394 or for inquiries outside Australian on +61 2 6141 1387)."
"I, Anwar Alesi ... hereby declare that I have entered into an employment agreement with the domestic worker, whose details are set out hereunder, which is in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards and is in relation to their undertaking full-time domestic duties in my private household in Australia."
"I, Anwar H. Alesi, residing at [residential address], Employer, and Juliet Buenobra, Employee, of Philippines, hereby agree to the following conditions of employment.
Board and lodging equivalent to $800 AUD per month.
Incidentals allowances equivalent to $250 AUD per month.
Full medical insurance equivalent to $125 AUD per month, ($1500 annually).
Summer and winter clothing equivalent to $50 AUD per month, ($600 annually).
A payment of $1750 AUD at the end of each month.
The employee shall be entitled to four weeks leave with full pay after every twelve months of service, to be taken by the employee at a mutually convenient time. Payment of annual leave will include a leave loading of 17.5%.
Public holidays will be paid in accordance with Australian employment regulations.
The employer shall take out workers compensation insurance in respect of the employee.
The employee will be entitled to 15 days sick leave per year, cumulative from year to year. For periods in excess of three days, a medical certificate is required.
The employer will be responsible for full medical costs incurred by the employee during the course of employment.
In the event of the death of the employee, the employer shall pay the cost of returning the employee's remains and property to her normal place of residence. Should this not be possible due to circumstances, the employer will be responsible for the proper disposition of the remains and property in consultation with the employee's next of kin.
In the event of either party wishing to terminate this contract, the initiating party shall give to the other party, 30 days notice.
Both parties recognise their obligations under the discrimination and harassment legislation and agree to adhere to those obligations."
- Visa Subclass - International Relations (subclass 403)
- Visa Subclass Stream - Domestic Worker (Diplomatic and Consular)
- Visa Conditions identifying: "8110" work limitation, "8303" activity limitation, "8501" maintain health insurance, and "8516" must maintain eligibility.
[21] The applicant arrived in Australia on 8 January 2015. She commenced working for the respondent the following day, 9 January 2015, at the respondent's then residence ("the first residence"). The first residence was a large, five-bedroomed home, the description of which was not in contest.
[22] On 12 January 2015, the respondent's husband took the applicant to a local bank and a bank account was established. On the evidence in the respondent's case, the applicant wished to be paid wages in cash rather than through the bank account, whereas on the applicant's evidence when the respondent made the first wage payment in cash she just accepted payment by that means (explaining she was a new employee and just doing what the respondent wanted). In consequence of the wages not being paid electronically by the respondent to the applicant's bank account, there is no objective evidence as to what payments of wages were made. While it is common ground the applicant received cash payments throughout the course of her employment, the cash amounts the applicant received as wages in her employment with the respondent were in sharp dispute. Moreover, there was no evidence adduced in the respondent's case as to bank account records which might otherwise tend to indicate that withdrawals were made in the amounts in question for monthly payments of wages initially in the order of $1,750.
[23] The respondent did not provide the applicant with payslips and the applicant did not keep her own written records of payments. For her part, the applicant said as to payments: "I recorded it in my mind" (competing lists of payments made were in evidence, although, in the absence or proper record-keeping or payslips neither list appears to have been based on anything other than assertion or recollection). There was evidence in the applicant's case as to amounts she remitted to the Philippines to support her family, in fairly low amounts, albeit that matter is of course not determinative or even necessarily indicative of what she was being paid - but I think, on balance, they were indicative in circumstances where the applicant was working in Australia so as to support her family.
[24] On the applicant's evidence, she was underpaid from the outset of her employment with the respondent whereas the respondent denies there was any underpayment. According to the applicant, about three months into the employment relationship she asked what happened to the contract, and was told by the respondent to ignore the contract. On the evidence in the respondent's case, the applicant was properly paid at least in accordance with the contract of employment, and also was given additional cash sums (such as when there were guests) and other benefits. On the respondent's evidence, the applicant was treated like a "member of the family". Evidence was adduced in the respondent's case around such matters as to, for example, exchanges by text messages or the like, and images of birthday gatherings etc. There was also evidence of, for example, the respondent's husband paying a substantial excess luggage charge for the applicant. There seems to have been some type of grace and favour arrangement about the applicant sometimes being given gifts or the like (which, as I will come to, the cost of which Mr Salman effectively tried to recoup). The evidence leads me to conclude the relationship was not familial at all, notwithstanding the respondent's suggestions in such respects. It was a relationship, in effect, of subservience; a master/servant relationship - and in the old-fashioned sense or understanding of such relationships. The relationship was cordial only until the time the applicant, an employee, sought to have from the respondent, her employer, her contract-based or other employment entitlements.
[25] On the applicant's evidence, she performed a range of domestic duties in the first residence, Monday to Saturday, with Sunday off work (or with Saturday or another day off work if, for example, the respondent had guests on a Sunday). The applicant described her work as dressing the children, preparing breakfasts, packing lunches and making their afternoon tea; house cleaning duties; washing, ironing and packing; food preparation/cooking; looking after the children at night and dressing them for, and putting them to, bed; and other general work like sweeping outside, rubbish removal and serving guests.
[26] Around April 2017, the respondent, her husband, the two children, and the applicant relocated from the first residence to another property ("the second residence"). The second residence, a unit, was a smaller property than the first residence. Among other rooms, the unit had two bedrooms, one of which was used solely or principally as a home office. There was also a type of studio within the unit with kitchen and bathroom facilities. The applicant did not have her own bedroom in the second residence. The applicant's bed or sofa bed was located in the studio along with the bunkbeds for the respondent's children. The applicant and the two children effectively co-habited the studio, at least for part of the time. For example, the children mostly slept in the studio. They also played and watched television in the studio. While the studio area of the unit was well-appointed, the applicant had no privacy or private space of her own, such as her own bedroom, at the second residence.
[27] After moving to the second residence, the applicant continued to undertake the work she had undertaken at the first residence, routinely over a six-day week, but had less cleaning work as the unit was smaller than the first residence. The applicant continued to do the cooking and also took the two children to and from school.
Applicant's first attendance at DFAT offices - 28 September 2017
[28] On or about 28 September 2017, the respondent took the applicant to her consular offices so that the applicant could, in turn, go to the offices of DFAT to pick-up her domestic worker identification card. The respondent arranged for someone from her office to take the applicant to the DFAT offices. According to the applicant, the respondent said words to the effect: "If DFAT asks you how much you are receiving as monthly salary, you must tell them that your monthly salary has been increased from $1,750.00 to $2,000.00." The applicant's evidence was that this increase had never happened.
[29] When the applicant attended the DFAT offices to collect the domestic worker identification card, she was given a DFAT document which read:
You are entitled to Australian workplace conditions including:
◻ payment of at least the national minimum wage ($18.29 an hour as at 1 July 2017)
◻ wages and conditions specified in any Australian Award that is relevant to your location and the work you do
◻ receiving your pay in money at least once a month, and receiving a pay slip with the details of your pay within one day of payment
In addition to your wages, your employer must pay for your:
◻ visa application fee and relevant health and character checks
◻ air fares to and from Australia
◻ health insurance in Australia
◻ open a bank account in Australia, into which your wages can be paid
◻ keep your pay slips and bank records in case of any disputes over pay
◻ register for consular assistance with your country's diplomatic mission in Canberra or consular post in the city where you are living
◻ ensure that your passport, Australian visa and identity card issued by the Department of Foreign Affairs and Trade are kept up to date"
[30] The applicant noticed the advice in the DFAT checklist that, as at 1 July 2017, wages should be at least $18.29 an hour, that she should receive payslips, and that she should have wages deposited to her bank account. In a conversation with a DFAT employee on 28 September 2017, the applicant was asked some questions. In such respects:
the applicant advised she did not have insurance/a medical card, and was asked by the DFAT officer whether it would be possible to ask the respondent about medical insurance (and the applicant said she could);
the applicant was asked whether she was receiving the exact salary stipulated in her employment contract, and the applicant said "Yes";
the applicant said she had a bank account, that her salary was not being deposited through that account, that she received "cash on hand", and that she did not have payslips; and
the applicant said she had her passport with her.
[31] As to the conversation during the applicant's first visit to the DFAT offices on or about 28 September 2017, the applicant in her evidence in the proceedings explained and/or elaborated matters as follows:
although she stated to the DFAT employee that she receiving the amount stipulated in the contract of employment, she was receiving less than that amount than (from August 2017, she received $800 a month after deductions);
when she advised the DFAT employee about what she was being paid, she was just following the instructions that had been given to her by the respondent earlier that same day - and she "felt bad" about saying "Yes" to the DFAT employee when she had been asked whether she was being paid in accordance with the contract "when I knew the truth".
Applicant's second attendance at DFAT offices - 27 October 2017
[32] In the period 22-29 October 2017 the respondent was overseas. With the applicant having earlier (on a date which is not clear) contacted DFAT, an appointment was made for 27 October 2017 to see the DFAT employee with whom the applicant had the discussion approximately one month earlier in connection with the collection of her domestic worker identification card.
[33] The applicant's evidence was that she went back to DFAT to tell the truth about her situation with her employer, especially in connection with the checklist as it related to her wages as a domestic worker. The applicant said the DFAT employee stated to her that she had already spoken to the respondent about matters including the insurance card. The applicant recounted matters in the following way:
" ... During our conversation, and telling [the DFAT employee] my problem, I can't hold my tears to cry, I was so upset and emotionally depressed and disappointed. I said to [the DFAT employee] words that I remember like this: "The salary received is $750 per month only, I don't have my own room to rest day and night time. I share my room with two boys, I don't have any extra pay for my overtime duties. I don't know what my profession is - a nanny or a domestic worker. I don't have any medical insurance card."
[34] When the respondent returned from her overseas trip on 29 October 2017, Mr Salman expressed concern to her about the applicant. The applicant had been unwell with a head cold. Following her return from overseas, the respondent herself noticed changes in matters including the applicant's "manners and attitude", as outlined in the respondent's evidence. In the applicant's evidence, she said that she was very upset following the first visit to the DFAT offices and could not understand "why this thing happened to me and it made it hard for me to focus on my duties".
Discussions between the applicant, the respondent, and the respondent's husband
[35] Following on from the meeting at the DFAT offices on 27 October 2017, the applicant had a discussion with the respondent on 4 November 2017, not long after her return from overseas, which was to the following effect:
"[Applicant]: Please Madam, I would like to have my wages into my bank account.
[Respondent]: Yes. I will tell Mr Ammar [Salman] to do so.
[Applicant]: Ok. Here are my bank details. I would want to save money in my bank from this time on."
[36] By 6 November 2017, the applicant's wages had not been deposited to her bank account. That same day, Mr Salman gave the applicant $700 in cash; he advised the applicant $400 was the remaining salary for November 2017 and $300 for clothing. The applicant did not accept the $700. A conversation unfolded which was, to the applicant's recollection, to the following effect:
"[Applicant]: Please, Sir, can you deposit the salary into my bank account.
[Applicant]: I would like proof that the amount came from you and Madam.
[Mr Salman]: No, I have a problem with the bank."
[37] When the respondent arrived home later on that same day of 6 November 2017, a discussion ensued about depositing the money to her bank account, and that the applicant had been to DFAT and had the DFAT checklist.
[38] What was recorded by the applicant on 6 November 2017 makes for confronting and disturbing listening, given the content of what was said to the applicant and the tenor of it. It is unnecessary to reproduce what was said in this decision. It suffices to say that the applicant's attempt to deferentially raise matters about having spoken to DFAT and also to raise the contents of the DFAT checklist in connection with her own employment was met with, among other matters, intimidation, shouting and attempting to get the applicant to sign an agreement concerning further deductions from her wages. Among other matters, the respondent and Mr Salman are heard stating to the applicant that she did not have the "entitlements" set out in the DFAT checklist, and that these matters were "optional". Startlingly, as to that part of the DFAT checklist which reads: "Your employer cannot ... prevent you from leaving your workplace when you are not work", Mr Salman is recorded stating:
"That's not acceptable. I can argue this. You want to go to court? It's fine. This is not acceptable. When you finish you work, your work as a nanny all day with the kids. Six days."
[39] This discussion occurred over the course of approximately nine minutes. Among other matters, the applicant said she would not sign and that she needed an interpreter.
[40] On 8 November 2017, the applicant again asked the respondent about the checklist and her pay. The applicant recalls saying words to the effect: "Please Madam, can you explain to DFAT why you are not giving me things on the checklist." A short time later, the respondent said to the applicant: "You can go to your brother's house if you want to. I am going to contact DFAT to tell them you are gone." (The applicant could not, however, go to her brother's house because she and her brother were estranged.)
[41] On the night of 8 November 2017, the applicant checked her bank account and learned that an amount of $1,750.00 had been deposited to the account (at 11.08pm). At some point that that same night, the evidence in the respondent's case indicated, the respondent prepared and signed the dismissal letter in duplicate - with one to be given to the applicant and one to be given to DFAT.
[42] On 9 November 2017, Mr Salman presented the applicant with the dismissal letter prepared by the respondent the night before. That letter was dated 8 November 2017 and read (as written):
This notice to inform you that because of your miss conduct [sic] with my family, I decide to terminate your employment with me (Mrs. Anwar Alesi) immediately from this day the 8th of November 2017.
I deposit a one month salary (as agreed on the contract between us).
[43] A recording (and transcript) of what was said between Mr Salman and the applicant was in evidence, being a recording again, I note, made without the knowledge or consent of Mr Salman. In that short conversation, Mr Salman advised the applicant that the dismissal letter had already been "handed over" to DFAT.
[44] The applicant did not leave the second residence on 9 November 2017 after Mr Salman gave her the dismissal letter; she stayed that night because she had nowhere else to go. On 10 November 2017, the applicant decided to move away "since that day they locked the door and I don't know what to do". The applicant asked Mr Salman to check her luggage before she departed, but he did not want her to open the luggage for checking. The applicant and the respondent's children hugged before she departed, apparently after having been called over by Mr Salman to say goodbye to the applicant.
[45] It was a condition of the applicant's 403 visa that she work (only) for the respondent (e.g. the effect of visa condition 8110 was the applicant must not engage in work in Australia except in the household of the employer in relation to whom the visa was granted). The applicant felt depressed, worried and anxious because "for all this time I was supposed to be working and supporting my family back in the Philippines" and now she "was jobless". The applicant did not know what to do or where to stay; and she did not want "to just pack up and go home" because, the applicant's evidence indicated, she knew she had not been paid correctly and wanted "to get back what was owed" to her. The applicant is remaining in Australia to try to recover what she should have been paid, with her main concern being her wages (proceedings of some type have been initiated or are pending concerning an underpayment claim). The applicant has been living in Australia with the family of a friend whom she met at her Catholic church; she has not worked since the dismissal. That family, the applicant said, had "provided me with food and a place to live for free, out of the kindness of their hearts."
[46] Around the time between the applicant raised the checklist-type matters, it appears there were telephone communications between, respectively, (a) the respondent and DFAT; and (b) the applicant and DFAT. There was also evidence of miscellaneous emailed communications passing between the respondent and DFAT concerning the applicant.
[47] In due course, in correspondence dated 14 November 2017, the Consulate-General of the Republic of Iraq wrote to DFAT in the following terms about matters including seeking the assistance of DFAT in cancelling the applicant's visa. The letter read:
"The Consulate-General of the Republic of Iraq, presents its compliments to the NSW State office of the Department of Foreign Affairs and Trade and has the honour to inform the Department that Mrs Anwar Alesi would like to terminate the employment of Mrs Juliet Buenabra [sic] (privet [sic] domestic worker) as from 08/November/2017.
The Consulate - General of the Republic of Iraq would like to clarify that Mrs. Buenabra [sic] left her apartment on Friday 10 /November to unknown place and we lost the communication with her.
The Consulate-General of the Republic of Iraq would highly appreciate the assistance of the NSW State Office of Department of Foreign Affairs and Trade in cancelling the visa for Mrs. Juliet Buenabra [sic].
The Consulate-General of the Republic of Iraq avails itself of this opportunity to renew to the NSW State Office of the Department of Foreign Affairs and Trade, the assurances of its highest consideration."
[48] Section 387 of the Act specifies the criteria for considering harshness etc. I turn now to consider the criteria that must be taken into account in considering whether I am satisfied that the dismissal was harsh, unjust or unreasonable.
Whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)
[49] The Commission's Form F3 - Employer Response to Unfair Dismissal Application ("Form F3") contains a question numbered 3.1, which asks "What were the reasons for the dismissal?" The respondent's response in the Form F3 identified the following as the reasons for the dismissal of the applicant:
"1. Break down in trust after the applicant made false accusations of abuse, underpayment and long working hours to DFAT.
2. Because of this, the respondent felt it was inappropriate for the applicant to continue work, and was concerned for the safety of her children."
[50] The Form F3 also contains a question numbered 3.2, which asks: "What is your response to the Applicant's contentions [in the Form F2 - Unfair dismissal application]?" The respondent's response to that question read, in part:
"1. Clause 12 of the contract of employment states that the contract can be terminated by either party by giving 30 days' notice.
2. The applicant was served with notice of termination on 9 November 2017, with pay ($1,750) in lieu of notice transferred to her bank account. Attached is a copy of the termination notice.
3. The applicant was given verbal reasons for dismissal i.e. break down in trust."
[51] I do not consider there was a valid reason for the dismissal related to the applicant's capacity or conduct (including its effect on the safety and welfare of other employees (of which there were none)). Indeed, I find there was no valid reason for the dismissal. As the submissions for the applicant noted, moreover, even if the respondent considers that the making of a complaint was falsely made it is not a valid reason to dismiss the applicant for making a complaint or inquiry about her working conditions. Further, to the extent the respondent considered it was a breach of trust to meet with DFAT without her knowledge that is not a valid reason for dismissal either; the applicant was properly entitled to meet with whomever she wished about concerns arising from the DFAT checklist.
[52] As to the lack of a valid reason for the dismissal, I am satisfied the applicant was dismissed against the background of her informing the respondent that she had spoken to DFAT and asking the respondent about matters written in the DFAT checklist as it concerned her own employment. I reject the proposition that the matters the applicant discussed with DFAT about her employment were "false accusations". I am satisfied the applicant was underpaid, was working long hours, did not have medical insurance (at least after she initially had arrived in Australia) and did not have any private room or space of her own in the second residence. I also reject the basis of the second matter addressed in response to question 3.1 of the Form F3 suggesting the respondent's children would be at risk following issue being raised about matters in the DFAT checklist. There was nothing arising in the evidence to indicate that the respondent had any basis for concern for the safety of her children, at least arising from the applicant having discussed with DFAT matters about her medical insurance, and her pay and conditions; and/or for raising with the respondent these and related matters such as being given payslips and having wages directly-deposited by the respondent into her bank account. (There had been an incident some months before the dismissal in which one of the children had gone astray while in the applicant's care and was not located until later. While obviously concerning that this should have occurred, there was no evidence the applicant was warned or counselled about this at the time; and given the effluxion of time that had passed to the date of dismissal that matter could not then be relied on as a basis to dismiss the applicant in November 2017). Moreover, after the conversation of 6 November 2017 between the applicant, the respondent and Mr Salman, the applicant performed her work as normal on the following day - 7 November 2017- and that work involved tending to the children. It may be noted also that the applicant hugged the children as she departed the second residence for a final time on 10 November 2017.
[53] The applicant was, of course, entitled to speak to DFAT and, subsequently, to raise the matters she then did with the respondent based on what was contained in the DFAT checklist for foreign domestic workers.
[54] While this application is not concerned with underpayment of wages, as such, I am nonetheless bound to elaborate my findings about underpayment of wages given that one of the matters relied on by the respondent concerning the dismissal was the contention the applicant had lied to DFAT in stating, in the second meeting at the DFAT offices on 27 October 2017, that she was not being paid pursuant to the contract of employment.
[55] I am well-satisfied the applicant was not being paid amounts of money specified in the contract of employment and/or amounts in the order of, as the respondent contended, $1,750 a month, and then, more recently, $2,000 a month (i.e. $1,750 plus incremental increases culminating in a total of $250 on top of the $1,750 around the date of dismissal), by way of cash-in-hand payments. I have been assisted in reaching that level of satisfaction by listening to the evidence of the sound recording of the discussion on 6 November 2017. While it is unnecessary for me to purport to make a final determination about the exact amount of underpayment, I incline to the view that the applicant was being paid only a fraction of what she properly should have been paid, and was paid only in the order of $750 and (from approximately August 2017) $800 a month for working long-hour days, typically Monday to Saturday inclusive, undertaking domestic and childcare-type work. One corollary to my acceptance that the applicant was underpaid is that the applicant did not, as asserted in the respondent's Form F3 and also in the evidence, mislead DFAT about employment-related matters including underpayment and long working hours.
[56] It may be noted also that the applicant's "remuneration package" in the contract of employment identified a total of $2,975, comprising a monthly payment of wages of $1,750 and certain deductions as set out in clause 3 of the contract:
As to the "board and lodging" deductions equivalent to $800 a month, the applicant did not have even a private bedroom of her own at the second residence, notwithstanding the matters put in the respondent's case that the studio was a self-contained space effectively exclusively for her own private use. I am satisfied that the children of the respondent mostly slept in the bunk-beds situated in that studio, other than when, for example, they occasionally slept with their parents in the parents' bedroom. One consequence is that the applicant did not have any privacy/private room, at any time of the day or night - at least at the time when the respondent, Mr Salman and/or the children were at home.
As to the "incidentals allowances" deductions equivalent to $250 a month, the respondent's evidence did not satisfactorily identify what type of incidentals this referred to up to a regular monthly amount of $250, albeit there was reference to in the respondent's case to matters such as shampoo. In any event, in Australia, wages are required - subject to certain permitted deductions - to be paid in full and in money, and not "in kind".
As to "full medical insurance" deductions equivalent to $125 a month, or $1500 annually, the respondent did not, at any stage throughout her period of employment, have any medical insurance for the applicant - apart from health cover insurance with Australian Unity when the applicant commenced employment in Australia until that insurance was cancelled sometime around or before July 2015. The respondent's evidence was that she thought the applicant was covered by the medical insurance she had for her family, although why she would think that it unclear. In any event, on the respondent's own evidence, she did not obtain family medical insurance until September 2017 - which was approximately two months before the dismissal. In consequence, and contrary to the contract of employment and visa stipulations, the applicant did not have any medical insurance after the initial period of employment with the respondent even though an amount of $125 a month in the applicant's remuneration package was deducted or offset for the (supposed) cost of such insurance. (Separately, clause 10 of the contract of employment specified that: "The employer will be responsible for full medical costs incurred by the employee during the course of employment", which I take to be, for example, any "gap" that might not have been covered by the contract-specified "full medical insurance".) One way or the other, the applicant was without medical insurance in the event of illness or injury etc for the bulk of the time she was working in Australia for the respondent while, at the same time, having her money wages offset by $125 a month for the cost of insurance premiums.
As to "summer and winter clothing" equivalent to $50 a month, or $600 annually, the applicant's unchallenged evidence was that the respondent gave her some items of second-hand clothing (and Mr Salman gave the applicant a one-off $300 expressed to be for clothing very shortly before the dismissal). Again, wages are required - subject to certain permitted deductions - to be paid in full and in money, and not "in kind". The applicant was properly entitled to be paid in money (and then she could, of course, choose for herself what purpose to direct her own wages when paid in money - whether for her own purchases of clothing or for any other purpose of her own choosing).
[57] I should comment also as to the following matters in the contract of employment between the applicant and the respondent:
As to clause 4 of the contract of employment, it specified that the applicant "shall work up to 40 hours per week", with ordinary hours being 9.00am to 5.00pm Monday to Friday, including a break of 60 minutes during the day. The National Employment Standards, as set out in s.62 of the Act, specify that an employer must not request or require a full-time employee to work more than 38 hours a week unless the additional hours are "reasonable" with the meaning of s.62(3) of the Act (including, at s.63(3)(d), whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours).
The contract of employment continued at clause 4 that in the case of hours worked in excess of 40 (sic) hours, or on Saturday and Sunday, "compensation will be given in the form of extra pay, time off in lieu or reduced working hours in the following week" and that both parties to the employment contract "are expected to adopt a flexible attitude towards the fixing of working time, taking into consideration the work that needs to be done". The applicant's evidence was that she worked Saturdays, with Sunday being her only day off (unless arrangements were made whereby she worked on Sunday instead of Saturday, or worked both). I accept the applicant's evidence in such respects and I also accept she did not receive any extra payment for weekday hours additional to 38 hours a week (or, for that matter, 40 hours a week) and the regular Saturday weekend work.
Clause 6 of the contract specified that the applicant had an entitlement to four weeks of annual leave with full pay after every twelve months of service, to be taken by her at a mutually convenient time. The National Employment Standards, at s.87(2) of the Act, provide that an employee's entitlement to paid annual leave accrues progressively during a year of service according to the employee's ordinary hours of work, and accumulates for year to year. Here, the applicant's evidence was, and the first sound recording also confirms - given what Mr Salman said - that the applicant worked six days a week. Moreover, while s.88(1) of the Act provides that paid annual leave may be taken for a period agreed between an employee and his or her employer, s.88(2) also provides that the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave. Here, as to underpayments, there was no evidence to indicate the applicant was paid any untaken leave on termination of employment and/or the contract-specified 17.5 per cent leave loading.
[58] I should also note other matters given the significance of the differences between the parties about pay and conditions as they related to the dismissal. The Act specifies certain employer obligations as to employee records and payslips. In this case, one of the key issues, I am satisfied, that led to the dismissal was that the applicant raised with the respondent the matter of payslips, based on the information she had read in the DFAT checklist. Parts of what the DFAT checklist described, in summary form, are matters specified in the Act and the associated Fair Work Regulations 2009 ("the Regulations"). Some relevant sections of the Act include: s.323 (Method and frequency of payment); s.324 (Permitted deductions); s.325 (Unreasonable requirements to spend or pay amount); s.326 (Certain terms have no effect - including unreasonable deductions for benefit of employer and unreasonable requirements to spend or pay an amount); s.327 (Things given or provided, and amounts required to be spent or paid, in contravention of Part 2-9 Division 2); s.535 (Employer obligations in relation to employee records); s.536 (Employer obligations in relation to pay slips); and s.557C (Presumption where records not provided).
[59] Relevant provisions of the Regulations that would be pertinent to the disputed payment issues include: reg.3.31 (Records-form); reg.3.32 (Records-content); reg.3.33 (Records-pay); reg.3.34 (Records-overtime); reg.3.36 (Records-leave); reg.3.37 (Records-superannuation contributions); reg.3.40 (Records-termination of employment); and reg.3.45 (Pay slips-form). Given the significance of the summary of advice in the DFAT checklist surrounding the dismissal, it is apposite to reproduce immediately the regulation concerning the (minimum) content of payslips:
(1) For paragraph 536(2)(b) of the Act, a pay slip must specify:
(d) the date on which the payment to which the pay slip relates was made; and
(g) any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement; and
(h) on and after 1 January 2010 - the Australian Business Number (if any) of the employer.
(2) If an amount is deducted from the gross amount of the payment, the pay slip must also include the name, or the name and number, of the fund or account into which the deduction was paid.
(3) If the employee is paid at an hourly rate of pay, the pay slip must also include:
(a) the rate of pay for the employee's ordinary hours (however described); and
(b) the number of hours in that period for which the employee was employed at that rate; and
(4) If the employee is paid at an annual rate of pay, the pay slip must also include the rate as at the latest date to which the payment relates.
(5) If the employer is required to make superannuation contributions for the benefit of the employee, the pay slip must also include:
(a) the amount of each contribution that the employer made during the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contribution was made; or
(b) the amounts of contributions that the employer is liable to make in relation to the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contributions will be made.
contributions does not include a contribution in respect of a defined benefit interest (within the meaning of the Superannuation Industry (Supervision) Regulations 1994) in a defined benefit fund (within the meaning of the Superannuation Industry (Supervision) Act 1993)."
[60] If the respondent had complied properly with the requirements of the Act and the Regulations as to record-keeping requirements concerning the applicant's employment, it may be anticipated that the issues concerning the contested underpayments would have been diminished. In that regard, I note, in passing, that as to any proceedings which separately may be initiated in the courts, s.557C (Presumption where records not provided) of the Act may be engaged. That section reads as follows:
(a) in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an applicant makes an allegation in relation to a matter; and
(i) by subsection 535(1) or (2) to make and keep a record; or
(ii) by regulations made for the purposes of subsection 535(3) to make available for inspection a record; or
(iii) by subsection 536(1) or (2) to give a pay slip;
(c) the employer failed to comply with the requirement;
the employer has the burden of disproving the allegation.
(2) Subsection (1) does not apply if the employer provides a reasonable excuse as to why there has not been compliance with subsection 557C(1)(b).
(a) subsection 44(1) (which deals with contraventions of the National Employment Standards);
(b) section 45 (which deals with contraventions of modern awards);
(c) section 50 (which deals with contraventions of enterprise agreements);
(d) section 280 (which deals with contraventions of workplace determinations);
(e) section 293 (which deals with contraventions of national minimum wage orders);
(f) section 305 (which deals with contraventions of equal remuneration orders);
(g) subsection 323(1) (which deals with methods and frequency of payment);
(h) subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);
(i) subsection 325(1) (which deals with unreasonable requirements to spend or pay amounts);
(j) any other civil remedy provisions prescribed by the regulations."
[61] The applicant was notified of the dismissal by way of the letter dated 8 November 2017 from the respondent, which was presented to her by Mr Salman on 9 November 2017. The letter relevantly informed the applicant that because of misconduct with the respondent's family, the respondent had decided to terminate the applicant's employment (purportedly) effective from the day prior, namely 8 November 2017. The respondent did not particularise or otherwise identify what that alleged misconduct with her family was said to involve.
[62] To the extent the applicant was notified that the reason for her dismissal was misconduct, I do not accept the applicant engaged in misconduct in broaching the matter of her employment conditions with DFAT (and it is a self-evident proposition that it is not misconduct for an employee to ask to be paid properly, to ask to be given payslips and the like, or to discuss such matters with organisations such as DFAT or, for example, the Fair Work Ombudsman). It may be noted in this regard that the respondent's evidence-in-chief was that had she been notified that the applicant intended to meet with the DFAT employee that meeting "would not have taken place". Among other matters, the respondent described the applicant's second visit to DFAT as follows:
"Being without permission, let alone informing me or my husband, Juliet Buenaobra's appointment and visit to ... DFAT is clear breach of contract, and would not have been covered under my insurance as a foreign Diplomat."
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[63] The applicant was not given an opportunity to respond to any reason related to her capacity or conduct. The dismissal, it appears, was not for capacity-related reasons. To the extent that the dismissal related to the conduct of the applicant in discussing her employment conditions with DFAT and/or broaching with her employer matters addressed in the DFAT checklist, as I have concluded, that was not, on any view of it, conduct in the nature misconduct.
[64] The applicant first became aware of the dismissal on 9 November 2017 when Mr Salman presented the dismissal letter the respondent had prepared and signed on the previous night of 8 November 2017. As such, the dismissal was presented as a fait accompli, without an opportunity for any response. As I have noted, in the second sound recording, Mr Salman advised the applicant that DFAT had already been informed of the dismissal through the provision of the letter of dismissal.
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[65] There were no discussions relating to dismissal and, hence, the consideration of a support person being present to assist at any discussions does not relevantly arise. The respondent did not give the applicant any notice of the meeting/discussion that was to involve Mr Salman presenting the dismissal letter to her.
If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[66] The dismissal did not relate to unsatisfactory performance by the applicant. The dismissal was integrally interwoven with issues about the DFAT checklist, the applicant having attended at the DFAT offices for the second time and speaking with an employee of DFAT, and the applicant having discussed with DFAT or the respondent, or both, matters such as pay, conditions, provision of payslips, and payment of (full) wages to her bank account rather than lower, cash-in-hand payments.
The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal/ The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[67] The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal does not appear strictly apposite here, at least in the usual sense. That is, the respondent employed the applicant as a domestic worker in her home, not in an "enterprise" as such. The procedures followed in effecting the dismissal were notable, nonetheless, in their lack of procedural fairness to the applicant.
[68] I observe that not only did the applicant lose her job, there appeared to be no concern about the circumstances of her not having anywhere to live following the dismissal (with the pre-dismissal suggestion being that the applicant should go to the home of her brother, from whom, the evidence indicated, she is estranged). As I have noted earlier, the applicant was taken-in by a family through Catholic church-associated connections. Separately, there was some suggestion in the evidence that, post-dismissal, DFAT and the respondent were in communication about the respondent paying for some hotel accommodation for the applicant, but there was no evidence that payment or other arrangements to similar effect occurred.
[69] Similarly to the statutory criterion concerning the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal, the respondent did not have an "enterprise" or any human resource management specialists or expertise. The way in which the dismissal was effected speaks to the lack human resource management specialists or expertise. There was no evidence as to whether the Consulate-General itself has any human resource management specialists or expertise upon which the respondent, as the acting Consul-General, could have sought advice.
[70] Separately, there was evidence that the respondent was in communication with DFAT about the dismissal. The flavour of the respondent's evidence was that she obtained DFAT's imprimatur to dismiss the applicant; however, a reading of what is available in, for example, what passed by way of emailed correspondence between DFAT and the respondent indicates DFAT informed the respondent that if it was the case that the respondent chose to dismiss the applicant then certain matters needed to be attended to by the respondent.
Any other matters that the Commission considers relevant
[71] The respondent raised certain matters about being dissatisfied with the applicant around the time after she returned from overseas and, in such respects, Mr Salman had also reported matters to the respondent his own concerns about the applicant in the time she was overseas. The respondent returned from her overseas trip on 29 October 2017, by which time the applicant was very upset and found it hard for her to focus on her duties. I accept the applicant may have been distracted by her concerns arising from what was in the DFAT checklist - and, it appears, it was those concerns which led her to have the initial conversation with the respondent on 4 November 2017. Within days, that is by 8 November 2017, the respondent had written the dismissal letter, paid an amount with respect to notice into the applicant's bank account and informed DFAT of the dismissal (before informing the applicant). The proximate timing of the initial request for a bank deposit of wages etc, and the evidence as to what unfolded between 4 November 2017 to the dismissal lead me squarely to the view that the dismissal was all in response to the applicant's wages-type queries, rather than anything more broadly about the alleged misconduct (or performance or similar).
[72] I am satisfied the applicant was unfairly dismissed: the dismissal was harsh, and unjust, and unreasonable. Reinstatement was not sought, and self-evidently would not be an appropriate remedy. In lieu of reinstatement, I am satisfied the applicant should have an order for compensation in her favour. I turn now to the criteria to be taken into account in determining an amount for the purposes of an order for compensation.
The effect of the order on the viability of the employer's enterprise
[73] The respondent did not have an "employer's enterprise", given the applicant was the respondent's (only) privately-employed domestic worker within her own home. Putting that matter to one side, there was no evidence as to any viability-related or viability-type matters that would stem from any order for compensation, such as personal impecuniousness.
The length of the person's service with the employer
[74] The applicant worked for the respondent in the period 9 January 2015 until the dismissal was communicated to her on 9 November 2017, by way of Mr Salman presenting the respondent's dismissal letter dated 8 November 2017. I do not consider the applicant's length of service calls for any upward or downward adjustment to the compensation amount that should otherwise be ordered.
The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[75] Consideration, in the usual way, of the statutory criterion concerning the remuneration that the applicant would have received, or would have been likely to receive, if she had not been dismissed is particularly problematic in this case for two principal reasons.
[76] First, the applicant was being underpaid. Were it not for the applicant raising matters about why she was not being paid properly, asking for payslips, and asking that her wages be paid by the respondent through direct bank deposits, it is likely she would have continued to work until around the time the 403 visa expired in June 2018 and it is also likely that she would have continued to be underpaid (and significantly so). Thus, the remuneration that the applicant would have received, or would have been likely to receive if she had not been dismissed would have been on-going underpayment of remuneration.
[77] Second, and to compound matters further, the applicant might not have been dismissed if she had agreed to what Mr Salman forcefully put to her in the meeting on 6 November 2017. That is, Mr Salman was insisting the applicant should sign an agreement stating that her monthly salary was a certain amount and, from that amount, she should also agree in writing to deductions additional to those already contained in the contract of employment.
[78] The further deductions which Mr Salman wanted the applicant to agree to in writing are heard in the sound recording made by the applicant on 6 November 2017. Those additional components pressed upon the applicant were stated by Mr Salman as involving: "rent" - $150; "airfare" - $1,000-$1,100 a year; "holiday"- $400; "Christmas present" - $400; "recruitment agency cut" - $200 a month; "food, mobile, electricity"; and "extra time when you request it on Sunday - that Sunday free". Mr Salman is heard insisting that the applicant give her written agreement to the additional deductions he identified saying, among other matters: "...you write and sign it and you give it to me. A letter saying okay deduct rent, $150 ...".
[79] The remuneration that the applicant would have received, or would have been likely to receive, if she had not been dismissed would, thereby, likely have been remuneration with the coerced agreement in writing to the further deductions in a re-configured remuneration package but with additional deductions of $150 a month in rent and, for example, further amounts (unspecified by Mr Salman in dollar amounts) for "food, mobile, electricity". The respondent joined-in on the discussion about such matters concerning the salary components. This, I note, in circumstances, where the contract already specified deductions from the total remuneration package including $800 a month for board and lodging, and $250 as to incidentals.
The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[80] As to the efforts of the applicant (if any) to mitigate the loss suffered by her because of the dismissal, it must squarely be acknowledged the applicant did not make the usual endeavour to seek alternative employment. That is because the conditions of the 403 visa meant that her lawful ability to work in Australia ceased upon the termination of her employment with the respondent. The applicant did not return to the Philippines, where she could seek to obtain alternative employment and, thereby, at least make an effort partly to mitigate the loss of remuneration following the dismissal. I take notice of the fact that wages in the Philippines are substantially lower than in a first world country such as Australia, even taking into account the underpayment of wages the applicant experienced in Australia in her employment with the respondent - a point was made by counsel for the applicant when I raised the matter of the applicant remaining in Australia following the dismissal as opposed to returning to the Philippines so as to seek alternative work and thereby make an effort to mitigate her losses.
[81] As to that submission by counsel for the applicant, I take notice that, effective 16 December 2017 to 16 December 2018, the minimum wage rate in pesos for capital city domestic workers in the Philippines was PHP3,500 a month (or about AUD$89.25 on the exchange rates around the date of this decision) under Wage Order No. NCR-DW-01 of the Philippines' National Wages and Productivity Commission. That minimum wage rate applies to all domestic workers, including "Any person who regularly performs domestic work in one household on an occupational basis", and was determined pursuant to the Republic Act No. 10361, otherwise known as an "Act Instituting Policies for the Protection and Welfare of Domestic Workers", the "Domestic Workers Act" or "Batas Kasambahay".
[82] Considered in terms of compensation amounts in the context of efforts to mitigate losses, ordinarily it would not be a satisfactory answer for an applicant to say he or she did not make efforts to mitigate losses pending the outcome of proceedings. Here, however, and in the particular circumstances of this case and noting that alternative employment as a domestic worker in the Philippines has a minimum wage of about AUD$89.25 a month, I accept as being entirely reasonable the applicant's evidence that she did not want "to just pack up and go home" to the Philippines because she knew she had not been paid correctly in Australia and wanted "to get back what was owed" to her. The submissions confirmed that the applicant, separately from this application for an unfair dismissal remedy, is making a substantial underpayment of wages claim with respect to her employment with the respondent.
The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
[83] As to the amount of any remuneration earned by the applicant from employment or other work during the period between the dismissal and the making of the order for compensation, there was no evidence of any remuneration from employment or other work. The applicant, it appears from oral submissions, obtained some form of bridging visa around the date of the expiry of her 403 visa. Until obtaining the bridging visa she was unable to work in Australia.
The amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation
[84] There was no evidence before me as to the amount of any income reasonably likely to be so earned by the applicant during the period between the making of the order for compensation and the actual compensation - albeit, with a bridging visa the applicant would have been able, from on or around the date of the grant of that bridging visa within weeks of the date of final submissions in these proceedings on 20 June 2018, to able to seek alternative, paid employment. The oral submissions on the final date of the hearing indicated the applicant had not, at that time, obtained alternative employment.
Any other matter that the Commission considers relevant.
[85] I have recorded earlier my conclusion that the dismissal was harsh, and unjust, and unreasonable. I consider the circumstances of the dismissal of the applicant were also morally repugnant. As the applicant put matters:
"... I was in Australia to support my family in the Philippines. I wasn't happy because I was not getting paid enough. Things became worse for me after we moved to the unit in [suburb] and I did not have any privacy. I was scared of losing my job and visa, so I never complained about [my] pay or lack of privacy. Of course I was polite and respectful to Mrs Alesi and Mr Salman. They were my bosses and I depended on them for my job, my food and even a place to live. The copies of the text messages ... show that I called the 'Sir' and 'Madam'. One of the text messages ... also shows that I had to ask their permission to sleep away from home after 7pm - even though the next day was Sunday - which was supposed to be my day off. As to buying me Sunsilk shampoo, that does not equal to the $250 per month Mrs Alesi deducted each month for 'incidentals'."
[86] The applicant was working in Australia as a 403 visa-dependent foreign domestic worker - with the exigencies of special vulnerabilities accompanying that status - who was dismissed in connection with doing no more than raising matters addressed in a DFAT checklist, being a checklist written to assist this particular class of workers or to alert them to employment-related matters. The applicant was unfairly dismissed and, hand-in-hand with that unfair dismissal, the respondent then moved promptly to try to ensure her visa was cancelled with the likely aim - it would at least seem as a reasonably-available inference - of ensuring the applicant also would have to leave Australia or be deported before any claim or claims might be initiated. As it happens, the application for an unfair dismissal remedy, once lodged, was then sought to be avoided on the basis that the respondent is "immune from these proceedings". As I noted in the proceedings, there has been much recent publicity about what is usually described as the "plight" of foreign domestic workers working for diplomatic personnel. Here, in the applicant, was one such underpaid and exploited worker who attempted raise to matters with her employer and, perhaps with an element of regrettable predictability, was swiftly dismissed and bound, for example, for exit from Australia in connection with the dismissal. Here, the applicant has had the benefit of assistance from a Catholic church-related family who took her in when she had nowhere to live and, separately, has obtained assistance from the Legal Aid Commission of New South Wales in making her unfair dismissal application.
[87] It is apposite to note that DFAT correspondence dated 9 September 2014 concerning approval sought by the respondent to employ the applicant as a foreign private domestic worker reminded the respondent that "all employment contracts for private domestic workers need to accord with standards of wages and employment conditions" under Australian workplace laws; and the respondent declared she had "entered into an employment agreement ... which is in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards and is in relation to their undertaking full-time domestic duties in my private household in Australia." I observe, in passing, that it seems a peculiar thing that such a declaration should be made so as to facilitate the grant of a 403 visa, but that diplomatic immunity should then be asserted upon the making of an application concerning dismissal from employment in circumstances directly related to proper wages and other entitlements.
[88] The respondent's evidence was that she obtained the template/sample for the contract of employment from a friend who worked in an embassy of another country; and it was the respondent's understanding that the template contract of employment is commonly used by the Arab diplomatic missions in Canberra. The contract was plainly in disconformity with Australian employment laws, considering even the most basic matters such as the National Employment Standards as to hours and unlawful deductions within the meaning of Chapter 2, Part 2-9, Div 2 (Payment of wages) of the Act.
[89] For my own part, it is difficult to understand why diplomatic personnel should be allowed to have access to visa arrangements which facilitate bringing into Australia persons from developing countries, such as the Philippines, to be used as, in effect, cheap domestic labour in their private residences. These workers are peculiarly unempowered, marginalised and potentially ripe for exploitative employment practices if employed by diplomatic personnel who do not have a proper appreciation of the application of Australian employment laws or who flout Australian employment laws. It seems to me to be a self-evident proposition that if diplomatic personnel want to have employees undertake domestic work in their private residences, and they properly understand that they are required to provide pay and conditions to Australian standards, they could, also self-evidently, recruit locally or use local agencies which supply such domestic services - rather than recruiting economically and industrially-vulnerable persons from countries such as the Philippines and other countries with wages and conditions far inferior to Australian minima.
[90] It appears to have been a condition-precedent for the granting of the 403 visa so the respondent could employ the applicant to undertake full-time domestic duties in her private household that the respondent had to complete the DIBP Employer's declaration (extracted earlier). That declaration relevantly concerned adherence to the standards for wages and working conditions provided for under relevant Australian legislation and awards. It is a peculiar outcome, I would think, that the grant of the 403 visa proceeded on the basis of the matters declared by the respondent in the DIBP-required declaration - and yet the respondent then sought in connection with these proceedings to wave the diplomatic immunity flag.
[91] I have concluded that the applicant did not engage in misconduct, although it is the case that the applicant's conduct in acting entirely within her lawful and reasonable rights certainly led to the respondent's decision to dismiss the applicant. As the applicant did not engage in misconduct, there is no cause to reduce the compensation order by any amount. The amount in the order does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the applicant's dismissal. Moreover, the amount does not exceed the compensation cap considered in the context of s.392(5)-(6) of the Act, or s.392(6)(a)(ii) as to the amount to which the applicant was entitled, at least under the terms of the contract of employment (albeit I would think the applicant's lawful entitlement on the proper application of Australian law would surely have been higher, given matters such as her six days of work a week).
[92] The approach to the calculation of compensation might typically involve calculating the remuneration that the applicant would have received, or would have been likely to receive, if the applicant had not been dismissed. Were it not for the dismissal of the applicant stemming from her discussing matters with DFAT and raising with her employer matters in the DFAT checklist, it may be expected that the applicant's employment would have continued to around the expiry date of the 403 visa on 10 June 2018. In this case, the applicant would have received money wages of approximately (in round figures) of $800 a month, or less. If the applicant had agreed to sign an agreement put to her in a coercive way on 6 November 2017 (the applicant's agreement to which potentially may have resulted in her not being dismissed), the money wage may have been even less than $800 a month, when further monthly deductions were made from the contract-specified amount with respect to matters stated by Mr Salman as involving: "rent", "airfare", "holiday", "Christmas present", "recruitment agency cut", "food, mobile, electricity", etc. In the circumstances, it would be a perverse outcome if the usual approach to the remuneration that the applicant would have received or would have been likely to receive, were formulaically approached.
[93] Here, the applicant could not, as a result of her 403 visa status seek to mitigate her loss by making an effort, at least in Australia, to obtain alternative paid work. Her only alternative way to seek to mitigate her loss was to return to the low-wage paying Philippines to work; or to seek to obtain a visa which would permit her to work in the higher wage-paying Australia. The applicant has recently obtained a visa, albeit only a bridging visa. There was no evidence as to what, if any, endeavours the applicant had made to mitigate the loss in the short time that had then passed in relating to the new visa status or as to the s.392(f) criterion.
[94] The amount of compensation must be considered in the context of the statutory criteria and the authorities, and this has recently been reinforced in Chesson Pty Limited t/a Pay Per Click v Knutson [2018] FWCFB 4149. In this regard, I also note the comments in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Allan Humphries [2016] FWCFB 7206 at [16] ("Double N Equipment") (which was cited with approval in Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Nurcombe [2017] FWCFB 429 at [42]):
"[16] The well-established approach to the assessment of compensation under s.392 of the FW Act, taking into account the matters specified in s.392(2), is to apply the "Sprigg formula" derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c) - that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:
"[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
'... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.'
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the 'anticipated period of employment'..."
[17] The identification of this starting point amount "necessarily involves assessments as to future events that will often be problematic". Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee's misconduct and the application of the cap of six months' pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case." (footnotes omitted; my underlining)
[95] Following from what was described in Double N Equipment, I approach the question of the compensation order on the basis that "the overarching requirement" is "to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case." This is a case which calls for the maximum amount of compensation available under s.392(6) of the Act, and, for the reasons outlined above, without any deduction. The applicant sought an order for compensation, which was formulated in the following way in the written submissions:
"19. In this case the applicant's contract of employment provides for remuneration package of $2,975. The respondent states that at the time of termination of employment the remuneration increased by $250, being $3,225 per month. The claim for compensation is 26 weeks, being $3,225 divided by 4 multiplied by 26 = $20,962.50."
[96] The respondent, on the other hand, submitted that only the contract amount of $2,975 should be used, as the other amounts were effectively gratuitous payments. Moreover, it was submitted for the respondent the formulation should be the contract amount of $$2,975 x 12 divided by 52 to get a weekly rate times 26, resulting in $17,850 (maximum compensation).
[97] The figures from both parties are somewhat rough-edged, because, for example, a divisor of "4" is not necessarily a perfect divisor for a month so as to use a divided amount to calculate the maximum 26 weeks' remuneration. Given the respondent's own evidence was that the money component of the package was by the date of the dismissal then in fact increased by $250, I consider it appropriate to use the amount of $3,225 a month as the total remuneration package which, then, for example, approaching the matter using the formulation propounded by the respondent results in a figure of $19,950. Differing formulations with more precise measurement of weeks and the like, and taking into account other matters which have not been taken into account by either party (such as the six-day week and superannuation amounts that presumptively would otherwise arise for payment), I have decided to round the order to an amount of $20,000 payable within 21 days of the date of this decision.
[98] In the absence of proper employment records, the weekly amount for the purposes of calculations for the order remains imprecise - but I am otherwise satisfied it is an amount that is appropriate having regard to all the circumstances of the case and there is no cause to reduce the compensation amount below something approximating 26 weeks' contract-specified remuneration coupled with the variation said by the respondent to have been effected. I anticipate that if the applicant had been paid properly in terms of, say, a 38 hour week, the regular Saturday overtime, superannuation contributions and the like, the compensation order would have been substantially higher than $20,000.
[99] An order for compensation in the amount of $20,000 will issue in conjunction with this decision.
L Andelman of counsel for the applicant, instructed by Mr N Haddad of the Legal Aid Commission of NSW.
G Foster of counsel for the respondent, instructed by Dr B Abou-Hamad of Sydney Metropolitan Lawyers.
At 9.20am today, 3 August 2018, as the decision was being settled for publication, the applicant sent correspondence to my Associate, addressed to me. This was despite repeated earlier instruction to the applicant, and through her solicitor, that this must not occur following her earlier forwarding of unsolicited material and correspondence to my chambers. That correspondence read (as written):
Im so thankful for all the efforts in this case. My visa will end this August 6, 2018. I hope that everything, be okay while waiting for the right decisions. I don't want to stay illegally when my bridging visa A will cease. And I'm leaving for Philippines tomorrow.
Printed by authority of the Commonwealth Government Printer
Juliet Buenaobra
Anwar Alesi [2018] FWC 4311
The contract specified that: "The employer shall take out workers compensation insurance in respect of the employee." If the respondent did have workers' compensation arrangements concerning the applicant, there was no evidence of it in the proceedings with the result the applicant was not only without medical insurance, but also apparently without respondent-arranged workers' compensation. (Separately, although there was no reference to such matters in the hearing by either party, there also was no evidence of the applicant having been asked by the respondent to apply for a tax file number or to complete a tax file number declaration; no evidence of pay as you go income tax deductions being remitted by the respondent to the Australian Taxation Office; and no evidence of any occupational superannuation being paid by the respondent on behalf of the applicant.)