CONTRACTUAL BENEFIT CLAIM

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00929

DELIVERED : Wednesday, 12 November 2025

FILE NO. : B 43 OF 2024

Applicant

AND

MMCE Holdings Pty Ltd

Respondent

CatchWords : Industrial Law (WA) – Contractual benefit claim – s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA) – Oral contract of employment – Whether employer denied a benefit due under the employment contract – Whether employee was a casual or full-time employee – Claimed entitlement to annual leave – Evidence uncontested – Contractual benefits claim established – Order issued

Legislation : Industrial Relations Act 1979 (WA)

  Industrial Relations Commission Regulations 2005 (WA)

Result : Order Issued

Representation:

Applicant : Mr B Fernandez

Respondent : No Appearance

Reasons for Decision

1         Mr Bevan Fernandez (applicant) applies to the Western Australian Industrial Relations Commission (Commission) for an order pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA) (IR Act), for a denied contractual benefit. The applicant seeks a payment of $3,831.80, being the equivalent of 136 hours of annual leave he believes is due under his contract of employment with MMCE Holdings Pty Ltd (respondent).

2         On 16 July 2024, the respondent filed a response opposing the claim on the basis that the applicant did not execute a contract for full-time employment. The respondent considered the applicant a casual employee, and therefore not entitled to annual leave.

Procedural History

3         On 20 August 2024, a conciliation conference was initially listed for 1 November 2024 in accordance with the respondent’s limited availability. The respondent did not attend. On 18 November 2024, a further conciliation conference was listed for 20 December 2024, again consistent with the respondent’s limited availability. Similarly, the respondent failed to attend the conciliation conference for a second time.

4         On 20 December 2024, the parties were informed by email the matter would be set down for a Hearing. The Commission provided the parties a copy of the proposed Directions to issue, to program the steps to hear and determine the application.

5         The respondent advised of their availability for the Hearing and stated that a medical certificate for the conciliation conference dated 20 December 2024 was attached. However, the respondent did not attach a medical certificate in this correspondence.

6         The Hearing was listed for 28 March 2025, in accordance with the respondent’s limited availability, and the Commission issued Directions to program the filing of evidence and submissions ([2024] WAIRC 01066]).

7         The applicant filed evidence and submissions in accordance with the Directions. The respondent did not comply with the Directions to produce documents, nor file evidence and submissions on the requested dates.

8         The respondent did not attend the Hearing listed for 28 March 2025. Given the respondent was notified of the Hearing in accordance with the requirements of the Industrial Relations Commission Regulations 2005 (WA), I am satisfied the Hearing could proceed in the respondent’s absence.

9         At the Hearing, the applicant gave evidence that he was employed as a permanent full-time Head Chef with the respondent, from 24 August 2022 to 16 August 2023. During that period, the applicant worked 40 hours per week from Wednesday to Sunday and was paid a salary of $75,000 per year.

10      The applicant’s evidence is the contract of employment was oral and provided for two weeks’ sick leave and four weeks’ annual leave per year.

11      The applicant provided documents such as a copy of bank statements showing regular fortnightly payments of $2,254 from the respondent; an employment verification letter from the respondent dated 20 June 2023, confirming he held a full-time position; and a copy of an email from the applicant to the respondent notifying his resignation along with a record of personal leave days.

12      The applicant submitted he is entitled to payment equivalent to four weeks’ annual leave because he was able to demonstrate that he consistently worked 40 hours per week. He submits the evidence indicates he was a permanent employee and not a casual, and the benefits of full-time employment formed a part of his contract of employment. The fact he was not paid weekend penalty rates, supports his contention that he was a permanent full-time employee. Further, the employment verification letter signed by the respondent, confirmed he was engaged as a permanent employee. The original job advertisement was for a full-time position.

13      The applicant’s evidence and submissions were not contested because the respondent failed to appear.

14      I am satisfied there was an oral employment contract executed between the applicant and the respondent which provided for four weeks annual leave. I accept the applicant’s evidence of his rate of pay due under the contract of employment. Moreover, I accept for the duration of his employment, the applicant did not take annual leave and is entitled to 136 hours of annual leave under the contract of employment.

15      The applicant has calculated the payment for an amount of salary equivalent to 136 hours of annual leave after tax is withheld. I will order a payment calculated on the gross amount. I accept the applicant’s evidence that he was not paid this benefit when he resigned from his employment and consequently has been denied a benefit by the employment contract under s 29(1)(b)(ii) of the IR Act.

16      In accordance with my reasons, I will order the respondent to pay the applicant $4,888.18 gross within seven days of the Order issuing.