Iraqi embassy driver sacked for refusing to drive ambassador wins $11,000 compensation

AN embassy driver with a lower back condition who was sacked for refusing to go on a 10-hour round trip has been compensated.

A FORMER driver for the Iraqi embassy in Canberra who was sacked for refusing to drive the ambassador due to a medical condition has been awarded nearly $11,000 by the Fair Work Commission.

Egyptian national Ahmed Kenawy, who now works as a driver for the Kuwait Cultural Office, filed an application for unfair dismissal after being sacked in February last year.

In his submission to the Commission, Mr Kenawy said “excessive” work required by the ambassador, which included long driving journeys without reasonable rest, had caused him to sustain chronic low back pain and disc disease.

After refusing to drive the ambassador on a 10-hour round trip from Canberra to Sydney, Sydney to Newcastle and then back to Canberra, due to his doctor’s advice that he not drive continuously for more than two hours, he was informed he was no longer required.

“While a reasonable assumption would be that Mr Kenawy’s refusal to drive the ambassador from Canberra to Sydney and Newcastle and back may have been a factor in the termination of his employment, there is no material before the Commission to that effect,” Fair Work Commission deputy president John Kovacic said.

He added that given representatives for the embassy did not dispute Mr Kenawy’s oral evidence, and “in the absence of any evidence as to the reason why Mr Kenawy’s employment was terminated, there is no basis to determine that there was a valid reason for Mr Kenawy’s dismissal”.

In its submission, the Iraqi embassy claimed Mr Kenawy was not employed by it but rather by the ambassador in a personal capacity — a claim rejected by Fair Work based on pay summary evidence and a translated employment contract.

“The respondent led no evidence to support its contention that Mr Kenawy was employed by the ambassador in a personal capacity rather that the respondent,” Mr Kovacic said.

“At one level, it would be reasonable to assume that if this were the case that the ambassador could have provided a witness statement or statutory declaration to that effect.”

Fair Work found that as the embassy made no submissions to the Commission “as to why Mr Kenawy’s employment ceased” other than “contending that Mr Kenawy was not employed by it”, there was nothing to suggest his dismissal was valid.

“There is no material before the Commission suggesting that Mr Kenawy was dismissed as a result of unsatisfactory performance,” Mr Kovacic said.

“I find that there was not a valid reason for Mr Kenawy’s dismissal, that Mr Kenawy was not notified of the reason for his dismissal and was not given an opportunity to respond any concerns which the respondent may have had regarding his capacity or conduct and that there are no other relevant matters.”

Fair Work found Mr Kenawy’s sacking was therefore “unjust and unreasonable”, ordering the embassy to pay him $US8500 ($10,800) in lost wages.

[e-mail]

Originally published as Iraqi embassy driver sacked for refusing to drive ambassador wins $11,000 compensation