2025 WAIRC 00058
UNFAIR DISMISSAL APPLICATION
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00058

CORAM
: COMMISSIONER C TSANG

HEARD
:
ON THE PAPERS

DELIVERED : FRIDAY, 7 FEBRUARY 2025

FILE NO. : U 47 OF 2024

BETWEEN
:
KERENSA LEANNE MCGRANE
Applicant

AND

SARAH JANE ANDERSON AS THE TRUSTEE FOR THE RUBY BAY TRUST, TRADING AS RUBY BAY CATERING
Respondent

CatchWords : Industrial Law (WA) – Whether Commission has jurisdiction over unfair dismissal claim – Whether applicant employed as a casual employee
Legislation : Industrial Relations Act 1979 (WA)
Result : Jurisdictional objection upheld; Application dismissed
REPRESENTATION:

APPLICANT : MS K L MCGRANE (ON HER OWN BEHALF)
RESPONDENT : MS S J ANDERSON (ON HER OWN BEHALF)

Cases referred to in reasons:
BALAGOPALAN V SOUTH METROPOLITAN HEALTH SERVICE [2022] WAIRC 00692
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION V PERSONNEL CONTRACTING PTY LTD [2022] HCA 1
EFEX Group Pty Ltd v Bennett [2024] FCAFC 35
WORKPAC PTY LTD V ROSSATO [2021] HCA 23

REASONS FOR DECISION
Background
1 On 17 May 2024, the applicant (Ms McGrane) lodged a Form 2 – Unfair Dismissal Application (Form 2) against her former employer, the respondent (Ms Anderson), claiming unfair dismissal from her position as Canteen Assistant on 19 April 2024.
2 On 24 July 2024, Ms Anderson filed a Form 2A – Employer Response to Unfair Dismissal Application, raising a jurisdictional objection that Ms McGrane is not eligible to make a claim of unfair dismissal as she was employed as a casual employee (Jurisdictional Objection).
3 On 26 September 2024, Directions ([2024] WAIRC 00854) were issued for the Jurisdictional Objection to be determined on the papers, and for the parties to file affidavits, sworn or affirmed in accordance with ss 8–9 of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA), testifying to the matters that they sought to rely upon in support of, or objecting to, the Jurisdictional Objection.
Principles
4 The Commission can only hear an unfair dismissal claim if there has been a dismissal.
5 There is no dismissal when the employment relationship between a casual employee and their employer ends in accordance with the terms of the contract and industrial agreement at the end of each period of engagement: Balagopalan v South Metropolitan Health Service [2022] WAIRC 00692 (Balagopalan) [52], [54]–[57]:
52. Following the statements of the High Court in [Rossato] and Personnel Contracting referred to above, the answer to this question must be sought in the terms of the legally enforceable instruments which determine the parties’ respective rights and obligations rather than in their subsequent conduct or performance of the contract. …
54. More relevantly, the employment contract indicates in several ways that the casual employment was in the nature of several and distinct engagements rather than ongoing employment. It refers to ‘any period of casual work’, ‘possible placements’, ‘at the time of any and each casual arrangement’ and ‘any employment periods’.
55. Finally, the contract expressly states that any employment periods are governed by the Industrial Agreement. I have set out the relevant terms of the Industrial Agreement above. The nature of casual employment under the Industrial Agreement is such that there is no scope to understand casual employment as being in the nature of ongoing or continuous employment. Each engagement must be for a period of less than one week. As SMHS points out, the very nature of casual employment, as defined by the Industrial Agreement, is that it cannot be said to be continuing or to support a subsisting relationship outside the periods of work themselves.
56. I accept SMHS’s submission that the Industrial Agreement operates on the underlying principle that each occasion of casual employment, even if only one shift, is a separate, freestanding contract of employment such that the employment relationship ends at the end of a shift.
57. The practical consequence of the nature of the casual employment is that Mr Balagopalan was not entitled to be engaged for future shifts and was not in an ongoing employment relationship with SMHS. If he was precluded from accessing further shifts from 16 February 2022, or indeed any later point, it is not a dismissal at law. The employment relationship between him and SMHS ceased pursuant to the terms of the contract and the Industrial Agreement at the conclusion of each separate period of engagement.
6 In Balagopalan, the Commission applied the High Court’s principles from WorkPac Pty Ltd v Rossato [2021] HCA 23 (Rossato) and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting) to find that rostering arrangements are not a relevant factor in determining the nature of casual employment. Instead, the focus is on the written employment contract, which, along with the terms of the industrial agreement, explicitly disavows the notion that Mr Balagopalan’s casual employment is akin to ongoing or continuous employment.
7 In Rossato, the High Court ruled that employment is not considered casual if there is a ‘firm advance commitment’ to ongoing work. The Court clarified that any irregularity, uncertainty, discontinuity, intermittency or unpredictability, indicates no such commitment. The Court emphasised that the determination of a firm advance commitment must be based on the agreement between the parties, rather than their expectations or understandings in the performance of the agreement: [49], [57], [89], [96] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ).
8 In Rossato, despite Mr Rossato being rostered up to a year in advance to work regular, fulltime hours according to a fixed pattern of work, the High Court concluded that there was no firm advance commitment to ongoing work: [95]–‍[96] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ).
9 The High Court found that the parties’ express agreement to pay Mr Rossato a casual loading in lieu of entitlements available to ongoing employees, such as paid annual leave, was a compelling indication that their relationship did not include a commitment for an ongoing working relationship: [97] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ).
10 In Personnel Contracting, the High Court emphasised that the nature of an employment relationship is determined by the terms of the contract, not by the practical performance of that contract: [59]–‍[62] (Kiefel CJ, Keane and Edelman JJ); [185]–‍[189] (Gordon J, Steward J agreeing at [203]).
11 The majority of the Full Court of the Federal Court in EFEX Group Pty Ltd v Bennett [2024] FCAFC 35 (EFEX) outlined the applicable principles where there is no written employment contract: [7]–‍[11] (Katzmann and Bromwich JJ):
7 This case did not involve any written contract at all, much less a comprehensive written contract. It was a wholly oral contract, with sparse details of the agreement reached expressed in the lead up to its formation. In the absence of a written contract and no evidence of a particular conversation during which the contract was made, “evidence of the parties’ conduct must necessarily be considered in order to draw inferences as to whether the meeting of minds necessary to create a contract has occurred and what obligations they have thereby undertaken”: Personnel Contracting at [177] per Gordon J (Steward J agreeing), as summarised in Chiodo v Silk Contract Logistics [2023] FCA 1047 at [9].
8 As Kennett J explained in Chiodo at [8]–[9], where there is no written contract, the identification of the parties’ contractual rights “must proceed somewhat differently but the fundamental task is the same: the parties’ contractual rights and obligations are to be ascertained and characterised”; and the focus is on the ascertainment of the legal rights and obligations of the contracting parties, “rather than how they behaved in the performance of their contract”.
9 The terms of an oral contract may be able to be inferred from the circumstances, including in whole or in part from the parties’ conduct or a course of dealing between them, or implied where necessary for business efficacy: Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; 406 ALR 678 at [21]–[22] per Kiefel CJ and Gageler J.
10 Thus, whether the [contract] is written or not, or is oral in whole or in part, the characterisation of the relationship between the parties depends on their contractual rights and not on circumstances, facts or events that do not affect those rights. It follows that a “wide-ranging review of the entire history of the parties’ dealings” is neither necessary nor appropriate for the purpose of characterising the relationship: Personnel Contracting at [59] per Kiefel CJ, Keane and Edelman JJ; see also [185]–[189] per Gordon J (Steward J agreeing).
11 The principles of contract interpretation also apply to the terms of an unwritten contract that are able to be ascertained, inferred or implied. They allow regard to be had to circumstances surrounding the making of the contract and events and matters, known to the parties at the time of contracting, which assist in identifying the object or purpose of the contract. The nature of the work contracted for and the arrangements of the supply or provision of any tools or equipment to the putative employee may also be relevant. Generally, things said or done after a contract was made are not legitimate aids to its construction. In a case such as this, for a matter with no necessary connection to the contractual obligations of the parties to have any bearing on the characterisation of their relationship, “it must be concerned with the rights and duties established by the parties’ contract, and not simply an aspect of how the parties’ relationship has come to play out in practice”: Personnel Contracting at [61] (Kiefel CJ, Keane and Edelman JJ).
The evidence
12 On 24 October 2024 and 19 December 2024, Ms McGrane filed affidavits, stating:
(a) On Friday, 23 February 2024, she was interviewed for the position of canteen assistant by Ms Anderson. During this interview:
(i) Ms Anderson said her permanent work shifts would be on Fridays of each school term to fill the gap in the weekly roster, after someone else had resigned.
(ii) Ms Anderson also mentioned the opportunity to cover shifts for other staff when needed, and scope for additional permanent shifts if they became available.
(iii) Ms Anderson did not mention that she was being employed on a casual basis.
(iv) The only mention about the ‘award’ was $30 an hour and superannuation.
(b) During her employment (27 February 2024 to 19 April 2024):
(i) She worked a consistent work pattern of Fridays of each week, except for the Good Friday public holiday and school holiday Fridays.
(ii) She worked all shifts allocated to her, including permanent shifts on Fridays, shifts to cover other staff members ‘on multiple occasions’ when asked, and a catering shift early in her employment.
(iii) She did not receive a written employment contract or a position description.
(iv) She discovered she was a casual employee when she saw it written on her payslip.
13 On 21 November 2024 and 16 January 2025, Ms Anderson filed affidavits, stating:
(a) She has operated school canteens since July 2021 and has employed a total of 22 staff. All staff have been employed as casuals under the same award and written employment contracts as each other. She has never employed anyone in any capacity other than as a casual, due to the nature of her business.
(b) On Wednesday, 21 February 2024, Ms McGrane contacted her via Messenger, stating that she was looking for work. At the time, there was no position advertised. However, she agreed to meet with Ms McGrane because she was wanting someone who could help ‘cover some shifts’.
(c) On Friday, 23 February 2024, she interviewed Ms McGrane for a casual canteen assistant position. During this interview, she explained to Ms McGrane the nature of the role, and told Ms McGrane what her rate of pay would be and that this rate included the casual loading under the relevant award.
(d) At no time during the interview, or at any time afterwards, did she offer Ms McGrane a permanent position.
(e) Ms McGrane started work on Tuesday, [27] February 2024. She was absent from site on this day as she was receiving medical treatment. However, Ms McGrane was treated and trained in the same way as every other staff member.
(f) Ms McGrane received her first pay on Wednesday, 6 March 2024, and was emailed her payslip, which listed her pay rate and that she was a casual. At no time did Ms McGrane question her casual status or indicate that she thought that she was actually a permanent employee.
(g) Between Tuesday, [27] February 2024 and Friday, 19 April 2024, Ms McGrane worked a variety of shifts, on a variety of days, covering shifts as required.
(h) Ms McGrane was part of the ‘Canteen Chat 2024’ Messenger group, where all staff could swap shifts, add shifts to cover others, and state when they were unavailable for work, as is the nature of casual employment.
(i) Ms McGrane’s payroll records show that:
(i) She was paid a casual loading in her weekly pay as per the award.
(ii) She did not work a consistent work pattern.
(iii) She was not paid for any day that she did not work, as per the conditions of a casual employee.
(iv) There were three weeks that Ms McGrane did not work. Two of these weeks were during school holidays, and the other week was when Ms McGrane was not required. In these three weeks, Ms McGrane was not paid any holiday pay, as this was included in her hourly rate as a casual employee.
(j) She has never suggested verbally or in writing that Ms McGrane was employed other than as a casual.
(k) She never made a firm advance commitment as to the duration of Ms McGrane’s employment or the days or hours that Ms McGrane would work.
14 Ms Anderson also filed four affidavits of former and current staff members, in which they state that they previously were, or currently are:
(a) Employed as a canteen assistant.
(b) Employed as a casual, and to the best of their knowledge, all canteen staff are employed as casuals.
(c) Part of the Messenger group ‘Canteen Chat 2024’ where they could add, swap, or change shifts with other staff, and that Ms McGrane was also a part of this group.
Consideration
15 From the evidence, it is not disputed that:
(a) Ms Anderson is in the business of operating school canteens and employing canteen assistants. All other canteen assistants, due to the nature of her business, have been or are currently employed on a casual basis, under the same award and pursuant to a written employment contract in the same terms: [13(a)], [14(a)–‍(b)] above.
(b) Ms McGrane contacted Ms Anderson for work. Ms Anderson had not advertised to employ a canteen assistant but agreed to interview Ms McGrane because she was wanting someone to help ‘cover’ the shifts of the canteen assistants: [13(b)] above.
(c) Ms Anderson interviewed Ms McGrane on Friday, 23 February 2024 for a canteen assistant position: [12(a)‍], [13(c)] above.
(d) During the interview, Ms Anderson explained to Ms McGrane the nature of the position: [13(c)] above. This included ‘filling a gap’ in the weekly roster, following the resignation of another canteen assistant, by working Fridays during the school term: [12(a)‍(i)] above. Ms Anderson also informed Ms McGrane that she had the opportunity to cover the shifts of other canteen assistants and to work additional shifts as they became available: [12(a)‍(ii)] above.
(e) Ms Anderson employed Ms McGrane following the interview, and Ms McGrane commenced employment on Tuesday, 27 February 2024: [13(e)] above.
(f) Ms McGrane was employed from Tuesday, 27 February 2024 to Friday, 19 April 2024. During this period, Ms McGrane worked Fridays during the school term: [12(b)‍(i)] above. She also covered the shifts of other canteen assistants and worked a catering shift: [12(b)‍(ii)], [13(g)] above.
(g) The business has a Messenger group, titled ‘Canteen Chat 2024’, in which canteen assistants can swap shifts, add shifts to cover others, and indicate when they are unavailable for work. Ms McGrane was part of this Messenger group: [13(h)], [14(c)] above.
(h) Ms Anderson issued Ms McGrane with weekly payslips, the first of which was dated Wednesday, 6 March 2024: [13(f)] above.
(i) Ms Anderson attached to her first affidavit the payslips issued to Ms McGrane. These indicate the following:
(i) Pay Frequency: Weekly.
(ii) Position: Casual Canteen Staff.
(iii) Pay Rate: $30 per hour.
(iv) Superannuation is paid in addition to the Pay Rate.
(v) Ms McGrane worked the following hours:
Week ending
Payment Date
Hours worked
3 March 2024
6 March 2024
15 hours
10 March 2024
13 March 2024
9.5 hours
17 March 2024
20 March 2024
5.5 hours
24 March 2024
27 March 2024
5.75 hours
31 March 2024
3 April 2024

7 April 2024
10 April 2024

14 April 2024
17 April 2024

21 April 2024
24 April 2024
16.25 hours
(j) Ms McGrane discovered that she was a casual employee from her payslip: [12(b)‍(iv)] above. At no time did Ms McGrane query her casual status with Ms Anderson: [13(f)] above.
(k) Ms Anderson did not issue Ms McGrane a written employment contract: [12(b)‍(iii)] above.
16 Applying Rossato, Personnel Contracting, and Balagopalan, the nature of Ms McGrane’s employment relationship is determined by the terms of her contract of employment.
17 Given [15(k)] above, and applying EFEX, it is necessary to first consider whether there is ‘evidence of a particular conversation during which the contract was made’: EFEX [7].
18 As outlined at [15(c)] and [15(e)] above, there is no dispute that Ms Anderson interviewed Ms McGrane for a canteen assistant position on Friday, 23 February 2024, following which Ms Anderson employed Ms McGrane.
19 From the evidence, there appears to be a dispute about what was said at the interview. Ms McGrane says that Ms Anderson did not inform her that she was being employed on a casual basis: [12(a)‍(iii)] above. Ms Anderson says that she informed Ms McGrane that her rate of pay included the casual loading under the award: [13(c)] above. Ms McGrane says that the only mention Ms Anderson made about the award was that she would be paid an hourly rate of $30 per hour plus superannuation: [12(a)‍(iv)] above.
20 Ms McGrane says that during the interview, Ms Anderson informed her that her ‘permanent work shifts’ would be Fridays during the school term: [12(a)‍(i)] above. Ms Anderson says that neither at the interview, nor afterwards, did she offer to employ Ms McGrane in any capacity other than as a casual employee: [13(d)] above. Ms Anderson says that she has never suggested to Ms McGrane, whether verbally or in writing, that Ms McGrane was employed in any capacity other than as a casual: [13(j)] above. Ms Anderson further says that she made no firm advance commitment to Ms McGrane regarding the duration of Ms McGrane’s employment, or the days or hours that Ms McGrane would work: [13(k)] above.
21 In circumstances where there is no written employment contract and no evidence of a particular conversation during which the contract was made, the terms of the contract may be inferred from the circumstances, including in whole or in part from the parties’ conduct or a course of dealing between them, or implied where necessary for business efficacy: EFEX ‍[9].
22 Furthermore, regard may be had to the circumstances surrounding the making of the contract and events and matters known to the parties at the time of contracting, which assist in identifying the object or purpose of the contract. The nature of the work contracted for may also be relevant: EFEX [11].
23 Relevant to the consideration of the matters at [17] and [21]–‍[22] above, are the matters outlined at [15(a)–‍(d)] above.
24 Considering the matters at [15(a)–‍(d)] above, and despite the matters at [19]–‍[20] above, I find that the terms of Ms McGrane’s employment provided that her employment was on a casual basis, for the following reasons.
25 There is no evidence that Ms Anderson raised any topics at the interview that could suggest Ms McGrane’s employment was to be ongoing, such as an entitlement to annual leave or personal leave.
26 On the contrary, and as outlined at [15‍(d)] above, I find that Ms Anderson expressly discussed the nature of the canteen assistant position with Ms McGrane at the interview, including the variability in her work. I find this variability akin to the irregularity, uncertainty, discontinuity, intermittency or unpredictability discussed in Rossato (at [7] above), as indicating a lack of a firm advance commitment to ongoing work.
27 Ms Anderson does not admit or deny informing Ms McGrane that her ‘permanent work shifts’ would be Fridays during the school term. Given the variability of work that was offered (as outlined at [15‍(d)] and discussed at [26] above), I consider it more likely that had Ms Anderson used the word permanent, that it was a reference to Ms McGrane regularly working a Friday shift, as opposed to Ms McGrane being employed on a permanent basis to work each Friday. However, given that the High Court in Rossato found that a firm advance commitment to ongoing work does not exist, even with a work roster set a year in advance to work regular, fulltime hours according to a fixed pattern of work, I do not consider it necessary to make any findings on this point.
28 In circumstances where Ms Anderson’s business was the operation of school canteens and for the duration of this business she has only employed canteen assistants on a casual basis, the surrounding circumstances, the parties’ conduct and business efficacy would infer or imply into the oral contract between Ms Anderson and Ms McGrane that Ms Anderson was offering to employ McGrane on a casual basis.
29 It is not disputed that Ms Anderson employs all other canteen assistants under the same award that governed Ms McGrane’s employment. It is also not disputed that Ms Anderson entered into a written employment contract with all other canteen assistants which states their casual status.
30 At the directions hearing, Ms Anderson explained the reasons why she did not issue Ms McGrane with a written employment contract: (ts 3)
… So during the time that this was all happening, I was actually not there the day that she started because I was undergoing treatment for [redacted]. So unfortunately, there are a whole number of things that occurred the day that she started and the week that she started where I said I would get her paperwork through to her. I also had my laptop stolen from my car, and I can prove that through police records.
So I had – where – as well as health concerns and treatment concerns, I was also dealing with the fact that my laptop was gone, so I, from memory, thought that she had actually signed it and it was available, and now in hindsight, I can see that she hasn’t actually got a signed copy of it, and I don’t have a signed copy of it in – in my records …
31 I accept the matters at [30] above and that Ms Anderson’s personal circumstances at the time Ms McGrane commenced employment, led to Ms Anderson’s oversight in issuing to Ms McGrane a written employment contract.
32 I accept that had Ms Anderson issued to Ms McGrane a written employment contract, that it would have been identical to the contracts issued to her other staff; and stated Ms McGrane’s employment status as a casual.
33 I note that the written employment contract that Ms Anderson issues to all other staff members contain the following terms:
Letter of engagement
I am pleased to offer you casual employment in the position of Canteen Assistant with us at Ruby Bay Catering (‘the employer’) on the terms and conditions set out in this letter.
1. Position
1.1 Your employment will be on a casual basis, as required.
1.2 Each occasion that you work will be a separate contract of employment which ceases at the end of that engagement.
1.3 As a casual employee, there is no guarantee of ongoing or regular work.
1.4 The duties of this role are in the attached position description. On each occasion that you work you will be required to perform these duties and any other duties the employer may assign to you, having regard to your skills, training and experience.
…
3. Remuneration
3.1 You will be paid at the rate of $30.00 per hour, including the applicable casual loading.
34 I find that the terms of Ms McGrane’s employment provided for her to be paid $30 per hour plus superannuation. I find that this rate included the casual loading that Ms McGrane was entitled to receive as a casual employee.
35 It is undisputed that the terms of Ms McGrane’s employment were governed by an industrial award, as a matter of law.
36 Ms Anderson attached to her second affidavit the rates of pay as at 1 July 2023 under the Restaurant, Tearoom and Catering Workers’ Award (Award).
37 Clause 12 of the Award states:
12. - PART-TIME EMPLOYEES
(1) A part-time worker shall mean a worker who, subject to the provisions of Clause 8. - Hours, regularly works no less than twenty ordinary hours per fortnight nor less than three hours per work period.
(2) A part-time worker shall receive payment for wages, annual leave, holidays, bereavement leave, and sick leave on a pro-rata basis in the same proportion as the number of hours worked each fortnight bears to seventy-six hours.
(3) Notwithstanding any other provision of this award, the employer and the worker may, by agreement, increase the ordinary hours to be worked in any particular pay period to a maximum of seventy-six ordinary hours. Such extra hours shall be paid for at ordinary rates of pay.
38 Clause 12(1) of the Award defines a parttime worker as one who regularly works no less than 20 ordinary hours per fortnight. Given there is no evidence that Ms McGrane was offered to work, nor indeed worked, a minimum of 20 hours a fortnight, I find that Ms McGrane was not employed as a parttime employee under the Award.
39 Clause 11 of the Award states:
11. - CASUAL EMPLOYEES
(1) A casual employee shall mean an employee engaged and paid as such and whose employment may be terminated by either the employer or the employee giving not less than 1 hours notice or the payment or forfeiture, as the case requires, of 1 hours pay.
(2) A casual employee shall not be engaged for less than 2 consecutive hours each shift.
(3) A casual employee shall be paid only an hourly base rate of pay that is an amount not less than 1/76th of the fortnightly rate prescribed in Clause 21. - Wages Rates for the relevant classification for any work performed.
(4) In addition to the hourly base rate of pay prescribed in subclause (3) of this clause, a casual employee shall also be paid the following loading –
DAY % PENALTY RATE
Monday to Friday 25
Saturday & Sunday 50
Public Holiday 125
(5) Where a shift commences on one day and ceases on the following day, for each hour worked on that shift the employee shall be paid at the rate applying to the day on which that hour of work is actually performed.
(6) A casual employee is to be informed, before they are engaged, that they are employed on a casual basis and that there is no entitlement to paid sick leave or annual leave.
40 I find that Ms McGrane was employed as a casual employee under the Award, despite her dispute that Ms Anderson did not inform her of her casual status before she was engaged, as required by clause 11(6) of the Award.
41 I find that the nature of casual employment under the Award is such that there is no scope to view Ms McGrane’s casual employment as ongoing or continuous employment.
Conclusion
42 For the preceding reasons, I find that Ms McGrane was employed as a casual employee, and that her employment ended in accordance with her casual employment.
43 Therefore, the Commission lacks jurisdiction over Ms McGrane’s unfair dismissal application.
44 Consequently, application U 47 of 2024 will be dismissed.