An Iraqi embassy chauffeur has won his unfair dismissal case, after he was sacked for missing work due to medical issues.
Deputy President John Kovacic found that there was no valid reason for the dismissal, and ordered the embassy to pay the driver $USD8,500 compensation.
Chauffeur refused to drive to Newcastle
Ahmed Kenawy worked as the personal chauffeur to a top Iraqi diplomat based in Canberra.
He claimed he was unfairly dismissed when he refused to drive the Ambassador from Canberra to Sydney, Sydney to Newcastle and back, due to a medical condition affecting his back.
“I refused. I told him I wasn’t able to do so because I was having disc problems in my back and could not drive for that extended period,” Mr Kenawy told the Commission through an interpreter.
“I told them I wasn’t able to drive, and I had a medical certificate to say I could not drive for more than two to three hours.”
Mr Kenawy was immediately asked to sign a letter stating he could no longer work due to a medical condition, but he refused, instead signing a letter stating that he was resigning at the request of the Ambassador.
Mr Kenawy argued there was no valid reason for his resignation and that he had not been given any written or verbal warnings regarding his performance.
Embassy claimed driver was not an employee
The Embassy didn’t provide any written submissions or evidence to the Commission, and did not challenge much of the testimony given by Mr Kenawy.
Embassy official Ahmed Kareem did try to argue that Mr Kenawy was not employed by the embassy, and worked for the Ambassador under a personal contract.
“The reason why I believe it was not unfair is that there is no written contract,” Mr Kareem said through an interpreter.
It was just a verbal agreement between Mr Kenawy and the Ambassador.
“The Ambassador employed him on the basis that he would be flexible and take the Ambassador anywhere he wants.”
No valid reason for dismissal
In the end Deputy President John Kovacic found that there was no valid reason for Mr Kenawy’s dismissal.
“Mr Kenawy was not notified of the reason for his dismissal and was not given an opportunity to respond to any concerns which [the Embassy] may have had regarding his capacity or conduct,” Deputy President Kovacic said.
“I find that Mr Kenawy’s dismissal was unjust and unreasonable.”
Unfair dismissal wrong claim to make in cases of discrimination
Miles Heffernan, Director of Litigation at Industrial Relations Claims, said the embassy got off lightly.
“If we were representing Mr Kenawy, we would have filed a general protections dismissal claim, or a discrimination claim under state law, he could have more than tripled his compensation,” he said.
“In addition, we could have also sued the embassy, and all of the individuals involved, subject of course to diplomatic shield laws.”
Mr Heffernan said the case is a reminder to all employees to always seek expert advice before taking on their employer.
“An unfair dismissal claim is not the right tool to use to fight clear cases of discrimination based on your health,” he said.
If you have been unfairly dismissed from employment, you may be entitled to compensation.
You only have 21 days to make a claim, so don’t delay!
Please call our team at Industrial Relations Claims today on
1300 359 514