Republic of Lebanon liable for damages following a general protections (adverse action) claim by an Australian based consular employee.
The Republic of Lebanon has been ordered to pay a former Australian consular employee in excess of $330,000 in damages for future economic loss suffered by the former employee as a result of breaches of Australian workplace laws.
The decision of Judge Raphael of the Federal Circuit Court of Australia (“Court”) confirms that foreign state immunity does not extend to claims relating to a contract of employment made or performed in Australia or to claims in relation to any right that Australian law gives an employee. The decision also confirms that a foreign state can be an employer for the purposes of the enforcement of those rights.
After being employed by the Republic of Lebanon, working within its consular offices in Sydney, Australia for a little more than 5 years, the plaintiff was dismissed for cause. The decision was made by the plaintiff’s supervisor.
Prior to the dismissal, the plaintiff complained that her supervisor had bullied and sexually harassed her. No action was taken in relation to the complaint.
The plaintiff claimed compensation in the proceedings on the basis that the conduct of her supervisor and her subsequent dismissal breached the general protections provisions of the Fair Work Act 2009 (“Act”). The general protections provisions create causes of action that can be enforced against “national system employers” for the adverse treatment of an employee who has exercised a workplace right or for discrimination against an employee.
The Court concluded that the Republic of Lebanon was a “national system employer” as it fell within the limb of the statutory definition of “national system employers” which refers to persons carrying on “an activity (whether of a commercial, governmental or other nature) in a Territory in Australia”. As a consequence, the Act applied to the Republic of Lebanon in its employment of the plaintiff.
The Court considered a number of the exceptions to foreign state immunity prescribed by the Foreign States Immunities Act 1985, including proceedings involving an employment contract made or performed in Australia and proceedings relating to rights given to employees under Australian law.
The Court held that the supervisor’s actions constituted discrimination on the basis of gender for the purposes of the general protections provisions of the Act, but did not fall within the definition of “adverse action”. The termination of the employment, however, fell within the definition of “adverse action” and, because the reason for the termination related to the plaintiff’s complaint about her mistreatment by her supervisor, it was unlawful under the Act’s general protections provisions.