Result : Unfair dismissal application dismissed

Balagopalan v South Metropolitan Health Service [2022] WAIRC 00692Stratton v Hidden Valley Handicrafts [2014] WAIRC 01258WorkPac Pty Ltd v Rossato [2021] HCA 23

1. These reasons concern the respondent's jurisdictional objection to the applicant's (Mr Amuta's) Form 2 - Unfair Dismissal Application filed on 26 May 2025.
2. On 16 June 2025, the respondent filed a Form 2A - Employer Response to Unfair Dismissal Application, stating:
   1. Permanent appointments to the public service can only be made pursuant to s 64(1)(a) of the Public Sector Management Act 1994 (PSM Act). [Mr Amuta] was expressly not appointed as a permanent officer, but rather on a casual basis.
   2. [Mr Amuta's] employment contract provides that each occasion [Mr Amuta] was engaged to perform duties was a separate period of employment. Therefore, any administrative decision to not offer further shifts did not amount to a dismissal from employment (see, for example, Balagopalan v South Metropolitan Health Service [2022] WAIRC [00692] [Balagopalan]).
   3. Therefore, the claim lacks jurisdiction and should be dismissed.

1. On 8 August 2025, the respondent filed an outline of submissions, stating: (footnotes omitted)
   1. The issue to be resolved in the jurisdictional hearing is whether [Mr Amuta] was dismissed. It is well established that to be 'dismissed' means a 'termination of employment at the initiative of the employer'.
   2. [Mr Amuta] states that the Respondent's decision to remove him from the casual pool - that is, a decision to no longer offer him shifts - constituted a dismissal.
   3. It is accepted that a casual employee can be dismissed. However, this is possible only where the casual employment is continuing or ongoing, commonly characterised as having 'a firm advance commitment' of future work, as opposed to a number of separate and distinct contracts of employment.
   4. Therefore, the determinative question in this matter is whether [Mr Amuta's] casual employment with the Respondent was:

(a) continuing or an ongoing employment relationship of indefinite duration without definite or regular hours fixed in advance; or

(b) working under separate and distinct contracts of employment, each for the fixed period of a shift.

1. The Respondent argues that [Mr Amuta's] employment with the Respondent was the latter situation, [Mr Amuta] argues that his employment was characterised by the former.
2. The High Court has previously clarified that in determining the legal relationship between parties, including whether there was a 'firm advance commitment' of ongoing work, a court can only have regard to legally enforceable rights, and not unenforceable expectations. Further, the Court clarified that where those legally enforceable obligations are reduced into writing and are contained in a comprehensive written contract, then the Court should not look beyond the contract to determine the legal relationship.
3. On 31 January 2025, the Industrial Relations Act 1979 (IR Act) was amended by, relevantly, inserting [s 7B] in response to the above High Court decisions. Section 7B of the IR Act provides as follows:

7B. Determining whether employee is casual employee

(1) This section applies for determining, for the purposes of this Act, the LSL Act or the MCE Act, whether an employee of an employer is a casual employee.

(2) The matter is determined by ascertaining the real substance, practical reality and true nature of the relationship between the employee and the employer.

(3) For the purposes of subsection (2), consideration must be given to the totality of the relationship between the employee and the employer, including -

(a) the terms of the contract governing the relationship; and

(b) other factors relevant to the totality of the relationship, including how the contract is performed in practice.

1. On one view, the above provision enables the Commission to analyse post-contractual conduct, such as rostering patterns, to determine whether an employee is employed as a casual or not. In [Mr Amuta's] case, however, it is unlikely that this provision is of any practical application to this situation for the following reasons.
2. First, it is not disputed that [Mr Amuta] was employed as casual and not a permanent employee. The Commission is therefore not 'determining... whether an employee of an employer is a casual employee'.
3. Second, [Mr Amuta] only worked 7 shifts after the above provision was enacted. The provision contains no clear language that it was intended to act retrospectively and, therefore, based on the principle of legality, it should be assumed that the legislature did not intend for it to do so. This conclusion is reinforced by the fact that the provision can be used to determine whether an employer has committed a breach of various civil penalty provisions.
4. If the above view is correct, then there is little to be gleaned from the performance of the contract post 31 January 2025. It follows that the legal relationship between the Respondent and [Mr Amuta] should be determined exclusively by the contract.
5. That contract explicitly provides, relevantly:

(b) 'Each occasion you are engaged will constitute a separate period of employment...';

(c) 'Casual employment may be offered from time to time from 20 August 2021' (our emphasis);

(d) 'You will be under no obligation to accept any offers of casual employment from time to time nor will your declining an offer preclude from being offered further periods of casual employment'.

1. In summary, the legally enforceable rights of the parties, as provided in the employment contract, is that there was no firm advance commitment of ongoing work. Additionally, the contract explicitly provided that each shift [Mr Amuta] worked was a separate and distinct period of employment. Further, the Respondent was under no obligation to offer [Mr Amuta] shifts, nor was [Mr Amuta] obligated to accept any shift that was offered. The nature of the arrangement was that [Mr Amuta] was placed in a pool of suitable people who could be offered and accept shifts.
2. Even if the Respondent is wrong and [s 7B] applies, it is still relevant to look at the terms of the contract.
3. In addition, if the Commission is entitled to look at 'other factors relevant to the totality of the relationship, including how the contract is performed in practice', then the analysis in Balagopalan, especially at [54], is applicable to this situation.
4. Further to the analysis in Balagopalan, it is relevant to consider that the availability of casual shifts in the residential care houses was, and is, influenced by unpredictable events, such as permanent staff members' personal leave.
5. Indeed, a review of [Mr Amuta's] shifts does not reveal any regular pattern of shift attendance. For example, from 16 August 2024, when [Mr Amuta] was permitted to accept shifts once more, until 25 February 2025 (when he was precluded from taking shifts), he worked a total 16 shifts. That equates to just over 2.5 shifts per month. Further, there were large gaps of time between shifts during the above period. For example, no shifts were worked in September 2024, nor were any shifts worked between 12 November 2024 and 31 January 2025.
6. [Mr Amuta's] understanding of the operation of the contract was consistent with the explicit terms of the contract. Notably, when making an application for secondary employment, [Mr Amuta] stated the following:

As a casual employee, my shift hours are not guaranteed with communities. I pick shifts when I am available and make sure I am not fatigued by working lesser hours as a casual.

1. Therefore, based on the above, [Mr Amuta's] contract explicitly provided that his employment relationship with the [respondent] was not continuous and ongoing and, further, there was no firm advance commitment of ongoing work. Even if it were permissible to look at the performance of the contract prior to the 31 January 2025 legislative amendment, there is no evidence that establishes that the parties agreed to a firm advanced commitment of future work. It follows, the decision to remove [Mr Amuta] from the casual pool did not constitute a dismissal and as such the Commission lacks jurisdiction to hear and determine [Mr Amuta's unfair dismissal application].
2. On 1 September 2025, Mr Amuta filed an outline of submissions, stating:
   • (a) His dismissal is evidenced by the email he received on 15 May 2025, which states:

I am writing to [advise] that your casual agreement has been ceased and you are [no] longer an employee of Residential Care.

You have not worked for the past 3 months and know this is because there has been an investigation in your secondary employment. Casual agreement as [ceased] by HR policy which staff have not work for 3 months.

This [cessation has] come in concertation with the Director Brad Mason.

(b) The Commission's jurisdiction is established by the duration of his employment with the respondent (approximately four years), the practical reality of his employment relationship, the systematic pattern of his shifts, and his expectation of continuing employment with the respondent.

(c) The respondent's knowledge of the systematic and regular pattern of his shifts, as well as the relationship, is evidenced by the respondent's review of his conversion to permanency, the outcome of which was provided by email dated 18 March 2025. This email also evidences his expectation of ongoing employment with the respondent.

(d) He was unable to meet the requirement for conversion to permanency because he was instructed not to 'pick up shifts' by the Casual Pool Residential Care Manager during the investigation into an incident arising in his secondary employment, the investigation was prolonged, and caused a break in his service.

(e) The schedule submitted by the respondent outlining the shifts that he worked, does not explain how he was assigned those shifts. His shifts were assigned to him mostly more than a month, and up to four months, in advance. This indicates a 'firm advance commitment' of ongoing work. His roster shows that he gets allocated regular and fixed shifts in advance.

(f) The insertion of s 7B to the IR Act, makes provision for the consideration of a new objective test for determining if a person is a casual employee, focussing on the 'real substance and practical reality' of the employment relationship, not just the terms of the contract: Stratton v Hidden Valley Handicrafts [2014] WAIRC 01258 (Stratton).

(g) Balagopalan is not relevant to him, due to his years of employment with the respondent, shift patterns, employment relationship (Mr Balagopalan was under probation), the nature of his dismissal, and possibility of permanency.

(h) He completed the Secondary Employment application form with the assistance of an employee of the respondent's, such that it would be unfair for the words used in the application form to be used against him.

1. At the hearing, Mr Amuta gave evidence-in-chief that:
   • (a) He applied to work for the Department as a casual employee in the casual pool. He was invited for an interview, after which he was given a contract to sign, which he signed on 17 August 2021.
   • (b) He had received emails from the house managers at Champion Lakes House, Bentley House and Oakford confirming the shifts that he was rostered to work.
   • (c) The emails from Champion Lakes House show the systematic and regular pattern of the shifts he worked at Champion Lakes House.
   • (d) On 5 May 2025, Champion Lakes House sent an email to the casual distribution list of the shifts that they needed covered over the next couple of weeks. He replied to indicate his availability, and on 6 May 2025, he received an email to say the shifts were cancelled and will be re-allocated to another staff member who knows the young people. He replied to say that he was not satisfied with the reason for cancelling his shifts as he had worked at Champion Lakes House for about four years. The house replied to say that if he wanted to pick up shifts there, they will organise a meeting with him to discuss. He forwarded the email to the roster coordinator, but did not receive a response.
   • (e) His emails contesting the removal of the shifts, demonstrate his intention to continue working at Champion Lakes House.
   • (f) On 18 March 2025, he received an email from the Permanency Framework Shared Mailbox, which demonstrates the longevity of his service with the respondent, and that, but for the break in service (during the workplace investigation), he would have had his casual employment converted to permanent employment.
   • (g) On 25 February 2025, he received an email stating: 'As there is currently an investigation happening with reportable conduct due to an incident you were involved in, you are currently unable to pick up shifts in residential care.' He abided by the instruction not to pick up shifts during the investigation, however, on 15 May 2025, he received an email on the terms outlined at [4(a)] above.
   • (h) The casual pool he was working under is still open and active, there is no end date on the pool, and he has not received any communication to state that the pool no longer exists. Further, there are ongoing shifts at Champion Lakes House that need to be covered.
   • (i) In summary, the evidence he has tendered, demonstrates that he worked regularly at Champion Lakes House, that his shifts were systematic, and that he had an intention of continuing to work and cover shifts at Champion Lakes House.
2. Mr Amuta was cross-examined on the terms of his employment contract, which states:

CASUAL RESIDENTIAL CARE WORKER, POSITION NUMBER 004634, LEVEL 2, RESIDENTIAL CARE, COMMUNITY SERVICES, DEPARTMENT OF COMMUNITIES

I am pleased to offer you casual engagement from time to time in the above position.

In accordance with operational requirements, you may be engaged by the Department of Communities (Communities) to perform duties consistent with this position. Each occasion you are engaged will constitute a separate period of employment and the following conditions will apply:

1. Your engagement in the above position will be on a casual basis, pursuant to the provisions of Section 100(2) of the [PSM Act] with nothing in this arrangement conferring upon you 'permanent officer' status within the meaning of [s 64(1)(a) of the PSM Act].
2. Casual employment may be offered from time to time from 20 August 2021.
3. The terms and conditions of any period of casual employment per the Public Service Award 1992 (the Award) and the Public Sector CSA Agreement 2019 (the [Agreement]).

1. You will be under no obligation to accept any offers of casual employment from time to time nor will your declining of an offer preclude you from being offered further periods of casual employment.
2. Under cross-examination, Mr Amuta accepted that the contract states that each occasion he is engaged constitutes a separate period of employment. He accepted that he was under no obligation to accept any offers of casual employment that were offered to him from time to time.
3. Mr Amuta agreed that when he signed the contract, he had not worked any shifts with the Department. However, he refused to accept that in signing the contract, he agreed to the terms of the contract, namely that each shift he worked constituted a separate period of employment.
4. He maintained that for each shift to constitute a separate period of employment, necessitated him receiving a new contract at the beginning of each shift, and as he did not receive a new contract at the beginning of each shift, that each shift could not constitute a separate period of employment.
5. Mr Amuta was asked three times under cross-examination if he was able to point to anything in the contract which indicated that he had agreed to regular and ongoing employment with the Department. He was unable to do so, but pointed to the Pool reference number at the top of the contract as demonstrating the intention of continuous employment by virtue of the pool still existing.
6. Mr Amuta agreed that the need for casual staff in a house fluctuates. For example, the house cannot predict when a staff member might be sick and require a casual worker to cover their shift.
7. Mr Amuta agreed that there was no legal obligation on him to accept a shift. He said that, the shifts needed someone to cover them, and he put up his hand because he enjoyed the work and also needed to earn money to survive.
8. Mr Amuta was cross-examined on the spreadsheet outlining each shift he had worked for the Department from his first shift on 20 August 2021, to his last shift on 22 February 2025. He said:
   • (a) During this period, he had worked elsewhere. This included at Keyassets, pursuant to the Secondary Employment application form, which states:

When do you plan to commence or when did you commence your secondary employment role? 29 [December] 2023

How frequently will you be undertaking activities relating to your secondary employment? Ongoing

How much time will be spent undertaking activities relating to your secondary employment? 75 hours [per fortnight]

How do you plan to manage or mitigate any impact of your secondary employment on your employment with Communities? As a casual employee, my shift hours are not guaranteed with [C]ommunities. I will pick shifts when I am available and make sure I am not fatigued by working lesser hours as a casual employee.

Additional information - With the way the roster of Keyassets is structured (24hrs with sleep component), I will have 8 days off work to rest at home, which ensures I am not fatigued to be able to attend few shifts with residential care.

✓ I confirm that the details entered on this form are true and correct

(b) That he made the statements in the Secondary Employment application form, including that 'As a casual employee, my shift hours are not guaranteed with [C]ommunities' and 'I will pick shifts when I am available and make sure I am not fatigued by working lesser hours as a casual employee', believing the statements to be true and correct.

(c) When asked whether by these statements he understood that there was no legal obligation on the Department to offer him shifts, that he disagreed.

(d) When asked if he agreed that even if Communities did offer him a shift he was under no legal obligation to accept the shift, that he agreed.

(e) He accepted that during the following periods, when he was the subject of the respondent's workplace investigations, that the respondent was not offering him shifts:

(f) He accepted that during the following periods, he did not accept any shifts:

(iii) Between 12 November 2024 and 31 January 2025.

(g) He agreed that during the periods in the preceding paragraph, that there were shifts available to be worked, yet he did not pick up any shifts.

(h) In relation to the period between 20 August 2024 and 7 October 2024 (at [13(f)(ii)] above), that he was going through personal health challenges, and was not going to attend work if he was not mentally fit to work.

(i) Upon reviewing the schedule of shifts, including the periods he was not offered shifts, and the periods when casual shifts were available to be worked but he did not pick up any shifts, he denies that his shifts were irregular.

1. On re-examination, Mr Amuta said that he applied for secondary employment with Keyassets on 29 December 2023, because at that time, he was under investigation, and any shifts that were allocated to him were taken off him. The investigation took 10-11 months to complete, and as he was experiencing financial hardship, he applied to work for Keyassets.
2. Brad Mason and Jean-Marie Clarkson gave evidence on behalf of the respondent.
3. Mr Mason gave evidence-in-chief and evidence under cross-examination that:
   • (a) He is the Director of Metropolitan Therapeutic Residential Care. He has been in the position for approximately two years.
   • (b) The main duties of his role involves him overseeing 13 therapeutic residential care houses in the metropolitan area, including the young people placed in the houses, the staff and the day-to-day operations. He also provides strategic input in relation to residential care for the Department of Communities more generally.
   • (c) The houses are overseen by an assistant or associate director, who in turn oversees approximately five managers. There are currently 15 managers, two being auxiliary. Every house has either a Senior Manager (specified calling 3) or Manager (level 6), overseeing 11 staff, comprising of:
     • (i) Five senior therapeutic care workers (level 3).

(d) There is also a psychologist attached to each house, working 2-days a week.

(e) In October 2023, he informed Mr Amuta that due to an investigation into an allegation made against Mr Amuta, that any future shifts that had been booked to work would need to be cancelled.

(f) It is standard process that a casual employee cannot pick up a shift during a professional standards investigation.

(g) It is also a standard process that casual employees who do not work a shift in three months, will have their casual agreement ceased.

(h) He recalls that when Mr Amuta queried the cessation of his casual agreement for not having worked a shift for three months, that the query was referred to him, and his response was to continue with the cessation based on the advice he had received from professional standards.

1. Ms Clarkson gave evidence-in-chief and evidence under cross-examination and re-examination that:
   • (a) She is the Manager of Residential Care, for the casual team. She has been in the position since April 2025. Previously, she worked between the casual manager and the relief team.
   • (b) The main duties of her role involves her overseeing the casual employees. She provides them with supervision and debriefs and monitors the hours that they work. She also runs statistics each month.
   • (c) As of last month, the statistics indicate that there were 124 casual employees in the casual pool; of these, only about 69 are actively working, which means they pick up one to two shifts each month.
   • (d) The houses are staffed with 12 permanent staff:

(i) Five permanent full-time senior residential care workers.

(ii) Four permanent full-time residential care workers.

(iii) Two permanent part-time residential care workers.

(e) A casual employee will pick up a shift if a staff member is on leave, is absent due to a workers compensation injury, or has called in sick.

(f) One of the permanent roles may be temporarily vacant, and a casual employee may fill in then. However, the position is not vacant for very long, as the vacancy is usually filled by a staff member being offered a fixed-term contract or a permanent contract.

(g) Shifts are offered to casual staff by:

(i) The roster officer, who sends out three emails a day (in the morning, around lunchtime, and around 4:00pm) of the shifts available across all houses, to both the casual and permanent staff, for a staff member to pick up via the roster officer.

(ii) The house manager for an individual house, who may send out, normally two weeks ahead, the available shifts to the casual distribution list. The casual employee can respond via email to the house manager to indicate their availability.

(iii) If a staff member calls in sick, either the house manager or the house staff will send an email to outline the vacancy on that day.

(h) If a casual employee replies to indicate their availability, the house manager will respond with an email to confirm the shifts that have been booked for that casual employee. This is because, it is not uncommon for more than one casual employee to indicate their availability, in which case, the house manager decides which casual employee they want for the shift and it is for the house manager to confirm the shift by email to the casual employee.

(i) It is not the standard process for the house manager at Champion Lakes House to send an email to a casual employee to confirm their shifts over an extended period, but it appears that on this occasion (9 October 2023, 5:01pm) (Email), the house manager has done so. She has not seen the Email prior to the hearing, so is unaware of what process was put in place in relation to the shifts reflected in the Email, and is unaware if shifts had previously been offered and the Email is merely a confirmation email.

(j) If there is an ongoing investigation, it is an industrial relations matter, and professional standards would advise them to stand down the employee.

(k) When she ran the statistics, the statistics indicated that Mr Amuta had not worked for three months. She consulted Mr Mason, who directed her to cease Mr Amuta's casual agreement, which direction she followed. She communicated the cessation of Mr Amuta's casual agreement to Mr Amuta via email dated 15 May 2025.

1. The respondent was content to primarily rely upon their written submissions, which the respondent summarised as follows:
   • (a) Firstly, the terms of the employment contract are unequivocal. The casual arrangement was that shifts could be offered, but there was no obligation to offer a shift, nor was there an obligation to accept a shift. Where a shift is offered, and accepted, that shift constituted a separate and distinct period of employment.
   • (b) The question then, is whether there is something about the manner in which the contract was performed that overrides the explicit terms of the contract. Importantly, Mr Amuta could not point to anything in the contract that indicated that the parties had subjectively agreed that his employment would be ongoing.
   • (c) Given s 7B of the IR Act provides that an employer could be liable to civil penalties if they mischaracterise the nature of the employment, the respondent is of the view that on the basis of legality, s 7B does not operate retrospectively to review the way the contract was performed prior to the amendment being enacted on 31 January 2025. This means only the shifts worked by Mr Amuta post-31 January 2025 should be considered, and given the small number of shifts worked post-31 January 2025, no conclusions can be drawn from this small sample to override the express terms of the contract.
   • (d) Even if s 7B applies to the entirety of Mr Amuta's employment, the manner in which the contract was performed, including the significant periods during which Mr Amuta was not under investigation such that he was not prevented to pick up shifts, and there were shifts available for him to pick up but he did not do so, indicates against an ongoing employment relationship.
   • (e) Mr Amuta's declarations in the Secondary Employment application form, which are consistent with the terms of the contract, are telling. By the declarations, Mr Amuta understood, which he accepted under cross-examination, that he is under no obligation to pick up shifts.
   • (f) The respondent understands Mr Amuta's gripe that he was directed not to pick up shifts during a workplace investigation, he does not pick up any shifts, and then because he has not worked for three months, he is taken out of the casual pool.
   • (g) However, the decision to take him out of the casual pool is an administrative one and does not elevate the decision to one characterised as a dismissal.
   • (h) Section 7B operates when it is necessary to determine whether an employee is a casual employee. Arguably, s 7B would have no work to do in this matter because there is no dispute that Mr Amuta was a casual employee.
   • (i) Whether s 7B can also be used to determine whether a casual employee is employed on an indefinite and ongoing basis, which is what Mr Amuta needs to make out to enliven the Commission's jurisdiction, is not immediately clear.
2. Mr Amuta stated the following by way of closing submissions:
   • (a) While the contract refers to him being engaged 'from time to time' by the respondent, he has worked for the respondent for approximately four years, and in that period, the respondent did not issue him a new contract for each period of time, and he did not sign a new contract for each shift.
   • (b) While the respondent says his removal from the casual pool was not a dismissal, the email he received on 15 May 2025, advising him that his casual agreement has been ceased and states: 'you are [no] longer an employee of Residential Care', constitutes a dismissal.
   • (c) While the respondent pointed to three distinct periods where shifts were available but he did not pick up shifts, this should be outweighed by the total amount of time (approximately four years) that he has worked for the respondent. As a casual employee, if he did not attend work due to personal reasons or due to being sick, this should not mean that he is no longer an employee as even permanent workers are not obliged to attend work if they are sick.
   • (d) As a casual employee, he should have been given notice of the potential cessation of his contract, before the respondent did so, allowing him to remediate whatever the issue the respondent may have had against him. It was unfair for the respondent to terminate his employment by email after four years of service.
   • (e) His four years of service warranted him receiving a conversion to permanency email, which advised him that there had been a break in his service. If there had not been a break in service, he would have been converted from casual to permanent. This indicates that he had a regular pattern of shifts and worked systematically.

1. The issue for determination is whether the Commission has jurisdiction to hear and determine Mr Amuta's unfair dismissal application, instituted pursuant to s 29(1)(c) of the IR Act. This requires ascertaining whether Mr Amuta was 'dismissed', meaning the termination of an employment relationship at the initiative of the employer.
2. Where employment is casual, this could only occur if there is a continuing or ongoing relationship of indefinite duration; rather than a relationship where the casual employee is working under separate and distinct contracts of employment, each for the fixed period of a shift: Balagopalan [51].
3. The respondent contends that there was no dismissal because Mr Amuta's casual employment consisted of separate and distinct contracts for each shift, with no firm advance commitment of ongoing work. Consequently, the decision to remove Mr Amuta from the casual pool was merely administrative and did not constitute a 'dismissal'.
4. Mr Amuta contends that his employment was ongoing, supported by his four-year tenure, systematic shift patterns, and reasonable expectation of continuity. Consequently, he was dismissed by the email dated 15 May 2025.

1. The legislative note to s 7B states 'This section was enacted as a response to the decision of the High Court of Australia in WorkPac Pty Ltd v Rossato [2021] HCA 23' (Rossato).
2. Rossato was delivered on 4 August 2021. In Rossato, the High Court held that a 'casual employee' is an employee who has no firm advance commitment from the employer as to the duration of the employee's employment or the days (or hours) the employee will work, and provides no reciprocal commitment to the employer.
3. In determining whether Mr Rossato was a 'casual employee' under the Fair Work Act 2009 (Cth), the High Court placed primacy on the terms of Mr Rossato's contract. The High Court found that where the parties commit the terms of their employment relationship to a written contract and thereafter adhere to those terms, the requisite firm advance commitment must be found in the binding contractual obligations of the parties.
4. Section s 7B was enacted 'as a response to' Rossato, to provide that in determining whether an employee is a casual employee under the IR Act, the LSL Act or the MCE Act, both the terms of the contract and other factors relevant to the totality of the relationship, including how the contract is performed in practice, must be considered.
5. It is an agreed fact that Mr Amuta was engaged as a casual employee.
6. Therefore, the issue for determination in this matter is not whether Mr Amuta is a casual employee or a permanent employee.
7. The issue for determination is whether Mr Amuta was 'dismissed' and therefore has standing to institute a claim under s 29(1)(c) of the IR Act. This does not require a determination of whether Mr Amuta was a casual employee, but a determination of the nature of his casual employment. Specifically, whether it was casual employment that was continuous or ongoing, or casual employment that was comprised of separate and distinct contracts of employment.
8. Therefore, it is unclear whether s 7B applies to this matter. This is because s 7B expressly states that it applies 'for determining, for the purposes of [the IR Act], the LSL Act or the MCE Act, whether an employee of an employer is a casual employee.'
9. Notwithstanding, Mr Amuta relies upon s 7B applying, and the respondent was content to proceed on the basis that s 7B applies to this matter. Therefore, I will proceed on the basis that s 7B informs the assessment of the nature of Mr Amuta's casual employment.
10. Mr Amuta relies upon s 7B and Stratton to urge consideration of the 'real substance and practical reality' of the employment relationship, and not just the terms of the contract.
11. Stratton [21] reinforces that the issue to be determined when a casual employee claims unfair dismissal is that outlined in Balagopalan [51] (at [21] above):
    1. Whether a casual employee, properly characterised, can be dismissed, and therefore unfairly dismissed and reinstated, has been a problematic issue to determine. The issue often depends on whether the casual employment is characterised by a series of separate and distinct contracts of employment for each engagement, or whether the person may be employed, under an ongoing contract of employment: Melrose Farm Pty Ltd t/as Milesaway Tours v Milward (2008) 88 WAIG 1751; Swan Yacht Club (Inc) v Bramwell (1998) 78 WAIG 579; Serco (Australia) Pty Limited v Moreno (1996) 76 WAIG 937. It is also the case that at common law, the concept of casual employment has no fixed meaning: Doyle v Sydney Steel Company Limited [1936] HCA 66; (1936) 56 CLR 545.
12. In Stratton, there was no written employment contract for the Commission to consider.
13. In any event, Stratton pre-dates s 7B, and ss 7B(3)(a) and (b) require consideration of the totality of the relationship between the employee and the employer, including both 'the terms of the contract governing the relationship' (s 7B(3)(a)) and 'other facts relevant to the totality of the relationship, including how the contract is performed in practice' (s 7B(3)(b)).
14. The respondent argues that s 7B operates prospectively from 31 January 2025, to preclude retrospective analysis of the shifts Mr Amuta worked pre-31 January 2025 in determining whether the pattern of his shifts supports regular and systematic employment. The respondent argues that the prospective operation of s 7B is grounded in the principle of legality, absent clear legislative intent for retrospective operation, especially given the potential for civil penalties to result from a mischaracterisation of casual employment under s 7B.
15. I am not persuaded by this argument for the reasons that follow.
16. While legislation is presumed not to operate retrospectively, and s 7B may underpin the contravention of an entitlement provision resulting in civil penalties, in my view, the non-retrospective operation of s 7B limits s 7B to post-31 January 2025 claims; it does not prevent an assessment of the performance of the contract pre-31 January 2025.
17. For instance, if an employee employed from 1 May 2005 to 1 May 2025, claims an entitlement to the payment of annual leave on termination of employment, relying on s 7B to challenge their casual employee status, the totality of the relationship (from 2005 to 2025) would be assessed to determine both the existence and quantum of the entitlement. Accepting the respondent's argument, that s 7B does not have retrospective effect to the manner in which the contract was performed, would mean in this example, only the period post-31 January 2025 to 1 May 2025 would be assessed to determine both the existence and quantum of the employee's entitlement to annual leave on termination of employment. In my view, the respondent's purported application would unreasonably restrain the operation of s 7B.
18. Accordingly, it is my view that the non-retrospective effect of s 7B operates such that the assessment under s 7B only applies to post-31 January 2025 claims. However, in assessing the 'real substance, practical reality and true nature of the relationship', consideration must be given to the totality of the relationship, which means the performance of the contract pre-31 January 2025 is not precluded.
19. The respondent's alternative argument is that if s 7B applies to Mr Amuta's pre-31 January 2025 shifts, the totality of the shifts worked by Mr Amuta from 20 August 2021 to 22 February 2025, do not reveal regular and systematic employment.
20. I am persuaded by this argument for the reasons that follow.

1. Section 7B(3)(a) (replicated in the respondent's written submissions [9] (at [3] above)) requires consideration to be given to the totality of the relationship between the parties, including 'the terms of the contract governing the relationship'.
2. The terms of the contract are clear; they unequivocally provide for casual engagement 'from time to time', with each shift constituting a 'separate period of employment'. Clause 10 expressly states that there is no obligation on the respondent to offer shifts to Mr Amuta, nor is there any obligation on Mr Amuta to accept shifts. These terms explicitly negate any firm advance commitment of ongoing work. Mr Amuta's own evidence under cross-examination, including his inability to point to any contractual provision indicating regular or ongoing employment, reinforces this characterisation.
3. Mr Amuta's contention that the absence of a new contract for each shift implies the continuity of employment is unsustainable. This is because the contract explicitly frames each engagement as separate, which means no fresh documentation is required to give effect to the arrangement.
4. Mr Amuta's reliance on the Pool reference number as implying continuity is also unsustainable, for the reasons that follow.
5. Firstly, as Ms Clarkson attested, there are 124 casual employees in the casual pool. Of the 124, 69 are actively working (meaning they pick up one to two shifts each month), which means the other 55 are not actively working.
6. Secondly, as Ms Clarkson attested, she runs statistics monthly on those in the casual pool, including casual employees who have not worked a shift in three months. As Mr Mason attested, as a matter of policy, casual employees who have not worked a shift in three months are removed from the casual pool.
7. Therefore, the casual Pool reference number, the ongoing existence of the casual pool, and the ongoing need for casual employees to fill shifts from time to time, says nothing about whether a specific casual employee has a firm advance commitment of ongoing work.

1. Section 7B(3)(b) (replicated in the respondent's written submissions [9] (at [3] above)) requires consideration to be given to the totality of the relationship between the parties, including 'other factors relevant to the totality of the relationship, including how the contract is performed in practice'.
2. A consideration of the practical performance of the contract results in a finding that Mr Amuta's shifts were not regular and systematic, for the reasons that follow.
3. The record of all the shifts worked by Mr Amuta does not establish a consistent or fixed commitment to work.
4. From 20 August 2021 to 22 February 2025, Mr Amuta worked intermittently, with substantial periods when he was not offered shifts (see [13(e)] above), and substantial periods when he did not accept a shift (see [13(f)] above).
5. From 20 August 2021 to 22 February 2025, there were 17 periods during which Mr Amuta worked at least one shift a week (Work periods 1-‍17), followed by 17 periods where Mr Amuta did not work in the week following his last shift (Non-work periods 1-‍17):

39 (includes 11 training shifts and 2 short orientation shifts)

1. While in the table at [55] above, there are two Non-work periods during which Mr Amuta was the subject of a workplace investigation and therefore shifts were not offered to him (Non-work periods 13 and 17), there are 15 Non-work periods during which Mr Amuta did not pick up a shift in the week following his last shift (Non-work periods 1-‍12 and 14-‍16). Of these, Non-work periods 5, 7, 14, 15 and 16 appear to be longer periods, ranging from three weeks to more than 11 weeks when Mr Amuta did not pick up a shift.
2. In the 183 weeks (from the beginning of Work period 1 on 20 August 2021 to the end of Work period 17 on 22 February 2025), Mr Amuta worked a total of 297 shifts, averaging 1.6 shifts a week.
3. Omitting the 45-weeks in Non-work period 13, when Mr Amuta was under investigation and was not offered shifts, Mr Amuta worked a total of 297 shifts across 138 weeks, averaging 2.2 shifts a week.
4. The pattern of shifts worked by Mr Amuta at [54]-‍[58] above, does not support Mr Amuta's contention that his shifts were regular and systematic, and supports the respondent's contention that the pattern of the shifts worked by Mr Amuta does not reveal regular and systematic employment.
5. The pattern of shifts aligns with clause 19.1(a) of the Agreement:

19.1 An Employer can only engage a person as a casual Employee if both the following circumstances are met:

(a) if the hours and patterns of work fluctuate substantially and are not regular or systematic; and

(b) the Employee is engaged hourly, for a period of up to four consecutive weeks in each engagement.

1. As attested by Ms Clarkson, shifts were offered via email to the casual pool. As attested by Mr Amuta, he 'picked up' the shifts he was available for.
2. This is consistent with Mr Amuta's declarations in the Secondary Employment application form, in which he stated that shifts were 'not guaranteed' and he would 'pick shifts when I am available'.
3. While Mr Amuta gave evidence that he completed the Secondary Employment application form with assistance from a respondent employee, this does not detract from his confirmation that the details entered on the Secondary Employment application form were true and correct.
4. The evidence from Ms Clarkson confirms that shifts arose from unpredictable factors like staff leave, illness, or vacancies, and that there were no fixed rosters. Confirmations of shifts followed expressions of availability, rather than pre-allocated rosters.
5. Mr Amuta's claim of a systematic and regular pattern of shifts, including the allocation of shifts more than one month and up to four months in advance, is not borne out by the evidence.
6. Mr Amuta relies on the emails he received confirming his shifts for periods ranging from two weeks to up to four months in advance (Exhibits A1, A2, A3, A4, A5, A6 and A7) as evidence of a firm advance commitment to ongoing work.
7. Mr Amuta relies on Exhibit A1 as the email that confirms his shifts up to four months in advance. Exhibit A1 is dated 9 October 2023. Its subject is 'Confirming all your shifts until 2nd January'. Therefore, this email appears to confirm Mr Amuta's shifts up to three months in advance, not four months in advance. However, nothing turns on whether the email confirms Mr Amuta's shifts up to four months in advance or only up to three months in advance. This is because the emails that Mr Amuta relies upon as confirming his shifts in advance, are emails that appear to be the confirmation of his expressed availability to work shifts. They do not appear to be a guarantee of a regular roster. While the emails may reflect operational needs, such as for covering leave; they do not evidence a mutual commitment to ongoing employment.

Conversion to permanency review email dated 18 March 2025

1. Mr Amuta's reliance on the permanency review email of 18 March 2025 is also misplaced.
2. The email highlights his break in service, underscoring the irregular and unsystematic nature of his engagement with the respondent, rather than confirming the continuity of his employment. It supports the respondent's position that the respondent was not obliged to offer shifts to Mr Amuta, and Mr Amuta was not obliged to accept the shifts offered.
3. The email notifies Mr Amuta that to qualify for a conversion from casual to permanency, he would need to work for an additional 12 months, without a break in service, and for at least 12 months of the additional service, his hours of work would need to be regular and systematic.
4. The email says nothing about whether his employment prior to the issuance of the email had been regular and systematic.
5. It is relevant to note that the email appears to have been issued to Mr Amuta in accordance with clauses 19.8-19.13 of the Agreement that was registered on 23 December 2024.
6. The email states that the Agreement obliges the respondent to review its fixed term and casual employees for conversion to permanency, and to inform the employees of the outcome of the review.
7. It is relevant to note that clause 19.9 of the Agreement, requires the respondent to review a casual employee who has completed 12 months of service to determine whether they continue to meet the circumstances described in clause 19.1 of the Agreement, and to undertake this review by no later than three months after:
   • (a) The employee has completed 12 months of service without a break in service;
   • (b) The date of registration of the Agreement (23 December 2024); and
   • (c) Each anniversary of the date in (a) or (b).
8. It appears that the email was sent to Mr Amuta in accordance with the requirements at [73] and [74(b)] above, namely to undertake the review within three months of the date of registration of the Agreement on 23 December 2024, and to inform Mr Amuta of the outcome of the review.
9. There is no dispute that Mr Amuta was employed as a casual employee pursuant to the terms of the Award and the Agreement.
10. It is relevant to note that clause 19.1 of the Agreement (at [60] above) prevents Mr Amuta from having been engaged as a casual employee unless his hours and patterns of work fluctuate substantially and are not regular or systematic.
11. Furthermore, clause 19.9(c) of the Agreement provides that, on a 12-monthly basis, the respondent is obliged to review its casual employees' employment to determine whether they continue to meet the circumstances described in clause 19.1 (at [60] above).
12. As Ms Clarkson attested, there are currently 124 casual employees in the casual pool, and of these only about 69 are actively working, meaning they pick up one to two shifts each month. This means the other 55 employees in the casual pool, pick up less than one to two shifts each month.
13. Therefore, unless the permanency review email expressly confirms the conversion to permanency, receipt of a permanency review email does not in itself support regular and systematic employment.

Email notifying of cessation of casual contract dated 15 May 2025

1. Mr Amuta argues the email dated 15 May 2025, advising him of the cessation of his casual agreement while stating 'you are [no] longer an employee', is evidence of his dismissal.
2. The respondent argues that this email was an administrative step removing Mr Amuta from the casual pool following three months without working a shift, per standard policy, and did not terminate an ongoing contract.
3. If each shift is a separate and distinct contract of employment, then the email merely confirms that no further shifts will be offered, and the phrasing 'you are [no] longer an employee' reflects the practical effect of removal from the casual pool but does not imply termination of a continuing relationship.
4. This accords with Balagopalan [57], where it was found that there was no dismissal at law arising from the employer's removal of Mr Balagopalan from the employer's shift allocation app:

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.

1. I am not persuaded by Mr Amuta's attempt to distinguish Balagopalan. The core issue for determination in both Balagopalan and here, turns on the relationship between the parties and relevantly whether it was a continuing or ongoing relationship of indefinite duration, or whether it consisted of separate and distinct contracts of employment for each shift. This involves ascertaining the real substance, practical reality and true nature of the relationship between Mr Amuta and the respondent.

The real substance, practical reality and true nature of the relationship

1. Applying s 7B(2), the 'real substance, practical reality and true nature of the relationship' between Mr Amuta and the respondent, was casual pool based, irregular engagements, without the mutual commitment to a firm advance commitment of ongoing work.
2. As outlined at [45] above, the contract reveals no mutual commitment to indefinite ongoing work.
3. As outlined at [67] above, the emails Mr Amuta received confirming his shifts, reflects his availability to pick up shifts in a casual pool, not a continuing or ongoing relationship of indefinite duration.
4. As outlined at [54]-‍[59] above, the pattern of shifts worked by Mr Amuta does not support regular and systematic employment. On the contrary, the pattern of shifts demonstrates that over Mr Amuta's tenure, his hours and patterns of work fluctuated substantially, and were not regular or systematic.
5. As acknowledged by the respondent, and which I accept, Mr Amuta's frustration over the prolonged investigation into his conduct during which time he was instructed not to pick up shifts, an instruction which he followed, resulting in him not working for the respondent for over three months and therefore being removed from the casual pool, is understandable.
6. However, the circumstances in which he was removed from the casual pool does not alter the true nature of his employment relationship with the respondent.
7. The true nature of Mr Amuta's employment, as outlined in the contract, and as evidenced by the pattern of shifts worked over his tenure, is a casual pool arrangement without a firm advance commitment of ongoing work. The respondent was not obliged to offer shifts to Mr Amuta, and Mr Amuta was not required to pick up shifts. The real substance of the relationship is one where each shift consisted of a separate and distinct contract of employment.
8. As each occasion when Mr Amuta was engaged to work a shift constituted a separate and distinct contract of employment, consequently, there was no dismissal arising from the respondent's decision not to offer Mr Amuta further shifts by his removal from the casual pool.

1. For the preceding reasons, having considered the totality of the relationship, including the clear contractual terms negating any ongoing commitment, and the performance of the contract in practice consisting of irregular shifts worked with substantial periods of non-work, I find the true nature of Mr Amuta's employment to constitute a number of separate and distinct contracts of employment each for the fixed period of a shift.
2. Therefore, the respondent's decision to remove Mr Amuta from the casual pool did not constitute a dismissal at law.
3. Accordingly, the respondent's jurisdictional objection is upheld, and application U 58 of 2025 will be dismissed for want of jurisdiction.