UNFAIR DISMISSAL APPLICATION CONTRACTUAL BENEFITS CLAIM WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2026 WAIRC 00260 CORAM : Commissioner T B Walkington HEARD : Wednesday, 4 September 2024, Thursday, 5 September 2024, Tuesday 6 May 2025, Wednesday, 7 May 2025 DELIVERED : Friday , 1 May 2026 FILE NO. : U 79 OF 2023, B 51 OF 2024 BETWEEN : Thomas Ghigo Applicant AND PICARD, AURELIE ESTELLE Respondent CatchWords : Industrial Law (WA) - Unfair dismissal application and c ontractual benefit claim heard concurrently - Multiple employment engagements - Status of employment contract considered - Continuity of employment contract considered - Employee dismissed for serious misconduct - Procedural fairness - Whether employer conducted a full and extensive investigation into misconduct - Dismissal found to be unfair - Remedy - Situation at the time of dismissal - Formal undertaking and restraining order/s considered - Compensation for loss awarded - Whether employee has demonstrated contractual term which has been denied - Relevant principles applied - Entitlement to contractual benefit not established - Contractual benefit claim dismissed Legislation : Industrial Relations Act 1979 (WA) Result : Declaration and o rder s issued Representation: Applicant : Mr  T Ghigo Respondent : Ms  A Picard Case(s) referred to in reasons: Bi-Lo Pty Ltd v Hooper [1992] 53 IR 224 Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66 Charles Henry Rosenhal v John Palermo [ 2010] WAIRC 00401; (2010) 90 WAIG 709 Clouston & Co v Corry [ 1906 ] AC 122 Empirnall Holdings v Machon Paull (1988) 14 NSWLR 523 HotCopper Australia Ltd v Saab [2001] WAIRC 03827; (2001) 81 WAIG 2704 Milan Mall v Saybolt Australasia Pty Ltd [2006] WAIRC 05271; (200 6 ) 86 WAIG 2817 Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117 Simons v Business Computers International Pty Ltd (1985) 65 WAIG 2039 The Construction, Forestry, Mining and Energy Union of Workers and BHP Billiton Iron Ore Pty Ltd and Integrated Group Ltd t/as Integrated Workforce [2005] WAIRC 01797; (2005) 85 WAIG 1924 The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 Reasons for Decision Mr   Thomas   Ghigo ( applicant ) filed an unfair dismissal application with the Western   Australian Industrial Relations Commission ( Commission ) against Ms  Aurelie   Estelle   Picard ( respondent ) on 6 November 2023. The applicant applies pursuant to s   29(1)(c) of the Industrial Relations Act 1979 (WA) ( the Act ). The applicant clai m s  that his dismissal was a ‘fabrication’ and it was harsh, oppressive and unfair. The respondent denies the applicant’s dismissal was unfair and argues that summary dismissal was justified to ensure the safety of her staff. The respondent is a sole trader, and the business owner of Lily Paris Patisserie. The business operates across two locations: Lily Paris French Café & Patisserie in Mandurah and Café   Cherie in Pinjarra. The applicant was employed as a Pastry Cook across both sites but was based primarily at Café Cherie in Pinjarra. The unfair dismissal application relates to an incident which occurred on 27 September 2023, in which the applicant and two other employees , were involved in a physical altercation at Café Cherie . During the unfair dismissal proceedings, t he applicant filed a contractual benefits claim pursuant to s   29(1)(d) of the Act against the respondent on 1 August 2024 . The initial claim filed by the applicant, did not sufficiently detail the denied contractual benefit or entitlement under a term of an employment contract as required by the   Act . As   such, the Commission issued directions on 26 February 202 5 , directing that the applicant file further and better particulars towards his claim. From my understanding of the claim, the applicant is seeking: (a) Payment for accrued unpaid penalty rates a cross two separate periods of employment as it relates to work undertaken on public holidays . Amounting to approximately (based on applicant’s calculations) $2 , 248 .00 for the first period of employment and $6 , 479 .00 for the second period of employment . (b) Payment for unpaid annual leave entitlements across two pay periods. Amounting to approx imately $9 , 120. 00. (c) Payment for unpaid ‘unreasonable additional hours’ across the first and second engagement periods . Hours the applicant clai m s were ‘ worked ’ but was not compensated . A mounts to two payments approximating at (based on applicant’s calculations) , $2 , 170 .00 for the first period of employment and $26,757 . 50 for the second period of employment . (d) Payment for ‘ tools, equipment and materials’ that the applicant paid for but was not reimbursed by the employer, which amounts to (based on applicant’s calculations) $5 , 130 . 00. (e) Payment for penalty rates that were not recorded on payslips from 26   June 2023 to 27   September 2023. The applicant clai m s this is for hours w ork ed on public holidays which were not logged with the employer . The amount sought is $868 . 00. (f) Payment in lieu of notice of termination . The applicant seeks thre e weeks ’ payment in lieu of notice of termination , as he says he ought to have been paid notice for his dismissal. The unfair dismissal application and contractual benefits claim were heard together. I will first set out the applicant’s employment history with the respondent and consider the contract ual terms which appl ied during the applicant’s employment . I will then assess the applicant’s unfair dismissal application and the applicant’s claim for denied contractual benefits. Background and f acts Both the applicant and respondent come from France. A French interpreter was utilised in the proceedings to assist the applicant with translation. The applicant was engaged by the respondent for two separate distinct periods of time. The   parties do not agree on the contractual terms applying during the second period of engagement . During the second period of engagement, the applicant contends that he was engaged on a contract of employment that continued from the first period of engagement . A   new contract was then enlivened with the granting of his Skilled Employer Sponsored Regional (Provisional) (subclass-494) v isa ( 494 - v isa ) on 18 September 2023 . The respondent argues the applicant was engaged as a casual employee for the second period of engagement until a new contract was enlivened with the granting of his 494 - v isa on 18 September 2023 . First e ngagement The applicant’s first engagement with the respondent commenced on or around June 2021 and ended in April 2022 ( First engagement ) . The applicant and respondent signed a contract of employment in May   2021 which was tendered into evidence . The applicant gave evidence that he resigned primarily due to the ‘ongoing tension’ with the respondent, and an incident which occurred at the end of March 2022 . The applicant’s evidence is that he had an ‘agreement' with the respondent and her partner , Mr  Julien Soulage , to launch the second location in Pinjarra, and this ‘ agreement ’ underpins the dispute. When giving his evidence , the applicant described the arrangement he had with the respondent was that of an ‘associate’ in the operation of Café Cherie . The applicant c ommitted hi s time to assist in the renovation of the business premises at Café Cherie in Pinjarra. The applicant contends that his time and efforts represent ed his share of capital because he did not have sufficient monetary capital to invest in the business . The applicant asserts the respondent promised to pay $8 , 000 .00 towards the cost of his children’s schooling as an ‘exchange’ for the capital he invested . The applicant tendered a letter dated 1 April 2022 that he says was his letter of resignation from the respondent during the first engagement. Whilst the letter is written in French, the letter was translated during the hearing by the Commission ’s appointed translat o r: My oral commitment to you and lilyparis @mandurah was part of a threesome including; Julien   Soulage, Aur elie Estelle Picard and myself; Thomas Ghigo in the renovation, launch, and decision-making of a second building located at 41 Wilson Road, Pinjarra WA, I do not consider myself to be included in this respect. I am withdrawing from the project, the trust having been broken. I will not commit to give my time to see this promise flouted and repressed and thus re-live an untenable situation which would force me to have to leave without guaranteeing a project which will have cost me too much humanly speaking. At the same time, I would like to point out that my commitment included coming to help in person; to the renovation of the building. The time that I allocated to carrying out these renovations was not counted as any financial income, rather this represents my share of a monetary capital that I unfortunately do not possess: - My time as an investment. The commitment on your part concerned my personal financial guarantee including help from you in the event of a hard blow from me and my family: The time given on the one hand preventing my wife from working because she was obliged to take care of our two daughters full time. This is why I am asking you for the $8,000 promised to pay for my children’s school. This will represent the human capital invested since December 2021, when work began in the second building. 01/04/2022 The r espondent says that at the time she received a different letter from the applica nt notifying his resignation ( Exhibit R1 ) . A fter his resignation, t he applicant c ommenced employment with his friend Mr  Adri e n   Boulanger , at a separate patisserie in Nedlands . Second e ngagement The applicant’s second period of employment with the respondent commenced in early July   2022 ( second engagement ) . The parties agree that they did not sign a written contract of employment at that time. The parties disagree on the terms of the applicant’s e mployment during the second engagement . The applicant argues the terms of the first engagement contract of employment , appl ied to his subsequent second engagement by the respondent commencing on 1   July 2022. The respondent argues the applicant resigned from his employment under the first   engagement contract, thereby ending the employment relationship at that time . The   respondent says that subsequent employment of the applicant was on a casual basis , until arrangements could be made to e mploy the applicant on a sponsorship visa. The evidence before me is that following his resignation from the respondent, the applicant had not secured an alternative employer to sponsor him within the 90 days required under his visa to continue working and living in Australia. The applicant and the respondent settled their differences that arose in the first engagement, and the applicant was re- employed by the respondent on or around 1 July 2022. The applicant argues the respondent’s evidence that he was a casual employee during the second engagement , is inconsistent with her response to the contractual benefits claim filed on 2 September 2024, in which she stated that he was on a full time salary and not entitled to penalty rates . A review of the Form 3A – Employer Response to Contractual Benefit Claim filed on 2 September 2024 reveals that the respondent’s statement cited by the applicant , is in reference to the first engagement. The applicant says that in the absence of any other agreement, he had no reason to believe that he was employed under any contract of employment other than th e contract signed on 27   May   2021 during the first engagement . There is little evidence concerning any discussions or oral agreements at the time of the commencement of the second engagement on or around 1 July 2022 . The terms of the employment contract which applied to the second engagement , are unclear. The parties did not agree to an express written contract of employment , nor is there any evidence of an oral agreement in which the parties expressly agreed to the terms of the contract of employment at the commencement , or shortly thereafter , of the applicant’s second engagement in July 2022. In September 2022 , the parties commenced the process for the respondent to sponsor the applicant on a 494 - v isa. T he parties agree a full-time contract of employment was signe d and agreed on 30 December 2022 . However, the parties dispute the terms of the contract of employment signed on 30   December 2022. The respondent says the p arties signed a contract of employment on 30   December 2022 which contained a term that the contract ‘ became effective on the date a 494 - v isa was granted to the applicant ’ ( Exhibit R2 ) . The respondent and the applicant agree that the applicant’s 494 - v isa was approved on 18   September 2023 ( Exhibit R3 ) . This term is included in the schedule on page   13 of the contract of employment , which was tendered into evidence by the respondent ( Exhibit   R2 ) . The applicant argues that the contract of employment submitted by the respondent, being what he describes as the ‘last contract’, is not valid. The applicant asserts that the contract of employment in his possession, does not include page   12 on which the signatures appear . The applicant refers the Commission to a copy of a document that is entitled ‘ Contract   of   employment ’ in which the schedule states that the effective date is ‘ upon approval of your 494 visa and the contract will remain valid for a minimum of 5   years from this date ’ . The   applicant submits that the signature page is missing from his copy of the contract of employment ( Exhibit A15 ) . The applicant further refers the Commission to photographs of a document entitled ‘ Full Time Contract of Employment ’ in which the schedule states that the effective date is ‘ Once the TSS nomination has been granted ’ ( Exhibit A20 ) . This document has a signature page at page   12 and has the signature of the applicant dated 30   December 2022. The   respondent did not sign the document. The applicant did not ask the respondent herself, nor any of the respondent’s witnesses about this document. The applicant further refers the Commission to a copy of photographs of a document that is of three pages which appear to be the final three pages of a document like the document referenced in paragraph [30] above . The final page is the schedule page which states that the effective date is ‘ Once   the TSS nomination has been granted ’ ( Exhibit A21 ) . This document has a signature page at page 12 and has the signatures of both the applicant and the respondent , which are dated 30   December   2022. The applicant did not ask the respondent’s witnesses about this document. The applicant argues that the respondent’s evidence of the contract with the effective date of the granting of the 494 - v isa , was fabricated. The applicant says he did not sign this document. The applicant says the signature page of the contract of employment has been scanned differently. Therefore, the applicant submits I should find that this contract of employment is not valid . The applicant says that the contract of employment he submitted , being Exhibit   A20 , which sets out that the contract is effective upon the approval of a T emporary S kill S hortage ( TSS ) nomination , is the contract which applied to his terms of employment from 30   December 2022 . My understanding of the applicant’s argument is that on 30   December 2022, he met the conditions required of the TSS nomination because he was on an equivalent COVID -19 Temporary Activity V isa. The applicant did not support his contentions with evidence of the different visas which applied to his circumstances . The applicant did not ask the respondent’s witnesses any questions concerning his claim that they had fabricated the applicant’s contract of employment. Contract - f indings I find that the ter m s of employment for the first engagement , were set out in the contract of employment signed by the applicant on 27 May 2021. This contract of employment concluded upon the applicant’s resignation on or around 1 April 2022. The onus is on the applicant to establish the grounds for finding the express terms of a contract which applied or for implying terms into a contract , as set out by the Full Bench in Sim ons v Business Computers International Pty Ltd (1985) 65 WAIG 2039. The   determination of an implied term of a contract of employment requires an assessment of the totality of the engagement: The Construction, Forestry, Mining and Energy Union of Workers and BHP Billiton Iron Ore Pty Ltd and Integrated Group Ltd t/as Integrated Workforce [2005]   WAIRC 01797; (2005) 85 WAIG 1924. As indicated in Empirnall Holdings v Machon Paull (1988) 14 NSWLR 523 ( Empirnall   Holdings) , acceptance of an offer to contract, can in some circumstances, be inferred by the conduct of the parties. I have closely assessed the evidence given in this matter. It may be the applicant assumed the terms that applied to the first engagement , also applied to the second engagement between 1 July 2022 and 18 September 2023 . T he applicant’s evidence is he understood that the first engagement contract signed on 27   May 2021 , continued until the contract of employment signed on 30   December 2022 became en live ned by the granting of the 494- visa ( third engagement contract ) . The applicant gave evidence that he was or was promised to be ‘ an associate ’ of the respondent. The applicant described this as being ‘at the same level as them [the respondent and M r  Soulage ] ’ : ts   29. The applicant’s evidence is that, under the ‘associate arrangement’ he would be repaid for his time, the extra hours worked, and the purchased materials once the company was healthy, he was a permanent resident, and he was included as one of the leaders . The respondent’s position is in clear contrast . The respondent ’s evidence is that t he applicant was engaged on a casual basis , pending a decision by the Department of Home Affairs to grant an application for a 494 - visa which was made in September 2022. The respondent refers to their documentary evidence of the Department of Home Affairs notification of the granting of the applicant’s 494 - visa ( Exhibit R3 ). The respondent also refers to a letter dated 16 September 2024 from the migration agent who assisted the parties in the process of the application for the 494 - visa ( Exhibit R4 ) . The letter states that one of the requirements for the employer nomination , was a letter of offer or an employment contract. On 19   December 2022 , the migratio n agent provided a standard template to the respondent by email. On   31   December   2022 , the migration agent received the scanned signature page of the contract of employment signed between the parties and lodged the nomination along with the signed contract of employment. The respondent’s evidence is that during the second engagement , the applicant did not make any enquires concerning the omission of annual leave and sick leave accruals on his payslips. The respondent argues that the applicant understood he was engaged as a casual during that period and therefore was not entitled to annual leave or sick leave. The respondent refers the Commission to a series of text exchanges between Mr  Soulage and the applicant during the second engagement ( Exhibit R24 ) . The respondent submits that these text exchanges show the applicant was receiving cash payments for additional hours worked, in which he assisted in the renovation of Café Cherie, the Pinjarra location . Th e   r espondent submits that the cash payment arrangements were to ensure that the hours worked by the applicant , did not exceed those he was able to undertake as a casual employee . However, the applicant’s assumption of the ter m s of his arrangement, are not sufficient to find th e necessary elements required for the formation of a contract ual term . The applicant has not provided sufficient evidence of any offers and acceptance of the terms he claims applied to the second engagement . The applicant has not provided any evidence concerning the conduct of the parties that supports his contention that the terms that applied to his first engagement also applied to his second engagement . Further, as per Empirnall Holdings , it is more likely from the conduct of the parties’ that the applicant ’s employment arrangement was as a casual , as the applicant did not make enquiries with the respondent concerning the absence of annual leave and personal leave . On the evidence before me, I am unable to positively find that the applicant’s understanding of the contractual situation is the correct one. The applicant has failed to support his contention that the ter ms of the first engagement contract , also applied to his second engagement. Following my careful analysis of the evidence , and observation of the evidence given by the applicant and the respondent , I prefer that of the respondent. The respondent’s evidence is supported by the evidence of documents submitted to the migration agent for the 494-visa application . This is consistent with the parties executing a contract of employment in December 2022 which included the term that the arrangement became effective on the granting the 494- visa. The applicant’s evidence that there was a contract of employment signed by both parties on 30   December 2022 , which became effective on the granting of a TSS visa , is not credible. The   applicant’s submissions are that at that time , he had a COVID-19 visa which met the TSS   requirements , mea ning the ter ms of the first engagement contract of employment would immediately apply. In these circumstances , there would be no need to state that the contract of employment would be effective on the granting of something that had already been granted. The payslips in evidence for the relevant period of the second engagement period, do not include any accrued annual leave or accrued sick leave. It is not contested that d uring the period of the second engagement period, the applicant did not make any enquires concerning the omission of annual leave and sick leave accruals on his payslips. The payslips after the granting of the 494 - visa , display accrued annual leave and sick leave from 18   September   2023, being the date the 494 - visa was granted. This supports the respondent’s contention that the applicant was engaged on a casual basis up until the 494 - visa was granted. I prefer the evidence of the respondent and find that for the period of the second engagement period from 1 July 2022 to 18 September 2023; the applicant was a casual employee. For the third engagement, being the period after 18 September 2023, the contract of employment which contained the term ‘ effective from the date of the granting of the 494 visa ’ , being Exhibit R2, is the relevant contract of employment that applied . Unfair dismissal application Backg r ound to e vents The applicant gave evidence on his own behalf. The respondent’s evidence was given by the respondent herself , her partner and employee Mr  Soulage and two other employees , Mr  Boulanger and Ms  Florent Lenogue . During the applicant’s second engagement , it was decided that additional staff would be employed to support the operation of Café Cherie. In October 2022, Mr  Boulanger ’s patisserie in Nedlands closed and , s ubsequently , Mr  Boulanger also commenced employment with the respondent. The applicant’s evidence is that he recommended Mr  Boulanger be engaged to manage Café Cherie. In March 2023 , a pastry chef was hired to assist the applicant at the second location . Mr Soulages’ evidence is that tensions developed because he started to question the applicant about bakery production numbers and discrepancies between the reported production and the actual sales. Mr  Boulanger’s evidence is that the applicant reported inaccurate production numbers and that the applicant’s behaviour started to change once this issue had been raised with him. The respondent also held concerns about the promises that the applicant was making to prospective employees. The r espondent clai m s the applicant was misrepresenting his role in the business . The evidence is that the applicant contacted his friend in France, Mr  Tony   Martin, about a potential employment opportunity to replace Mr  Boulanger as the café manager of Café Cherie. The r espondent’s evidence is that the applicant told Mr  Martin that he was one of the business owners and he offered Mr  Martin a full-time employment contract and a n annual salary of $80,000 .00 without the respondent’s approva l . The respondent arranged to meet with the applicant on 24 September 2024 at Café Cherie in Pinjarra . The attendees invited to the meeting were the applicant, the respondent, Mr  Soulage, Mr  Boulanger, Mr  Martin and another employee, Ms  Emma Caillaud. The purpose of the meeting was for the respondent , Mr  Martin and the applicant to discuss their different understandings of Mr  Martin’s engagement, and to clarify the representation s the applicant made of his role in the business . The applicant attended Café Cherie on the day; however, he did not attend the meeting as arranged. 27 September 2023 f irst a ltercation The applicant’s evidence is that in the morning on 27 September 2023 , he approached Mr  Soulage to have a conversation ‘to sort things out’. Mr  Soulage said he did not want t o talk because he was bus y and told the applicant they could talk later. Mr  Soulage got into his van and was about to leave to conduct management duties at Lily Paris French Café & Patisserie in Mandurah . It is not contested that t he applicant removed the van keys and took some steps away from the van. The applicant says he did this to ‘force a conversation’. Mr  Soulage repeatedly requested the applicant return the van keys. Mr  Boulanger ’s evidence is that the applicant had been aggressive in the manner he was speaking to Mr  Soulage. Mr  Boulanger also repeatedly asked the applicant to return the van keys, and the applicant refused. Mr  Boulanger then intervened by physically tackling the applicant and putting him on the ground to force the applicant to return the van keys. The applicant says the intervention involved Mr  Boulanger assaulting him by putting him on the ground, strangling him, punching him in the ribs, biting his fin ger and pushing him against the wall. The applicant’s evidence includes photos of his injuries and medical reports. Mr  Soulages ’ evidence is that Mr  Boulanger seized the applicant from behind and it likely involved ‘fighting’ in the heat of the moment. Mr  Boulanger accepts that he instigated the physical altercation and now regrets how he handled the situation. Mr  Boulanger gave evidence of his own injuries sustained during the altercation. Mr  Boulanger describes both the injuries he sustained and those of the applicant as ‘ superficial ’ . The applicant gave the van keys back to Mr  Soulage . The applicant, Mr  Soulage and Mr  Boulanger walked into the storage room . 27 September 2023 s econd a ltercation The applicant clai m s that Mr  Soulage and Mr  Boulanger were following him closely and continually yelling at him . The   applicant and Mr  Soulage then moved into the b akery section and continued arguing. The applicant agrees that he picked up a beer bottle and threw it in the direction of Mr  Soulage . The applicant says he threw the bottle in the air over Mr  Soulage and it hit the wall behind him. The applicant says he did not aim the bottle at Mr  Soulage , as he threw it at the wall in frustration . Mr  Soulage says that in response to the applicant throwing the bottle he stood up, approached the applicant and punched him. Mr  Boulanger saw what happened and approached the applicant . The applicant says he fel t a second punch in his rib area but did not see who punched him. Another employee intervened to break up the fighting. The applicant’s evidence is that Mr  Soulage and Mr  Boulanger repeatedly told him he was fired and to leave. The applicant says he told them he would not quit. Mr  Soulages ’ evidence is that he just wanted the applicant to leave the premises. Mr  Soulage and Mr  Boulanger say that the applicant repeatedly announced that he was resigning to other employees at the Café. The applicant went outside and telephoned the polic e. He informed them that he had been assaulted. The applicant then made several trips to his car to load his belongings and then left the premises. Whilst the applicant was moving back and forth, both Mr  Soulage and Mr  Boulanger report that the applicant repeate dly said that ‘ Julien [ Mr  Soulage] would die very soon ’ . Ms  Lenogue , another employee present at the Café , confirmed she heard the applicant say word s to this effect . Events f ollowing 27 S eptember i ncidents The applicant returned to the café later that day with his wife to collect his drum kit. At that time, he gave Mr  Soulage his set of work keys and said, ‘you’ve got the keys, I want my money back’. The applicant and his wife then attended the Pinjarra Police Station to make a police report . The applicant says the police advised him to go to hospital. The applicant a ttended Peel Health Campus. The applicant ’s evidence is that he received swelling and bruising to his left eye, bruising to his nose, redness on his neck, redness and bruising on the left side of his ribs, a laceration on his index finger, a sore neck, and a graze to his left elbow. After being cleared to leave hospital , the applicant attempted to attend Pinjarra Police Station again. However, they informed him to return later as there was no police officer available. On 28 September 2023, both Mr  Soulage and Mr  Boulanger applied for a Misconduct   Restraining Order to be placed up on the applicant. On 29 September 2023, the respondent sent a warning letter to Mr  Boulanger for his conduct in the a ltercation s with the applicant on 27   September 2023. In the letter, the respondent acknowledges that Mr  Boulanger ‘assaulted’ the applicant : Dear Adrien Boulanger, I am writing to you about the events occurring on Wednesday 27 th of September 2023 during your employment with Café Cherie On that day you assaulted Mr  Thomas Ghigo After considering the situation I understand what your goal was but unfortunately I cannot accept this kind of misbehaviour on the property, specifically coming from my General Manager. This is your first warning letter. Your employment may be terminated if this kind of problems happen again . If you wish to respond to this formal warning letter please do so by contacting me or by replying in writing. Yours sincerely, Aurélie Picard On 30 September 2023 , the applicant emailed the respondent, informing that he would be returning to work : back to work I will be back at work the 06/10/2023 at 6 am as my certificate of capacity certifies that I am unsuitable for work [from] the 27/09/2023 to the 05/10/2023 inclusive . On 1 October 2023 , the respondent replied: Thomas Ghigo, This is with a real stupefaction that we are receiving such an email. Due to the events that occurred on Wednesday 27 th of September on our property it is impossible to have you back on board. Despite warning you a few times, 6 times to be exact over the past 2 years and a half, you have now gone too far. What happened on that morning does concern me as owner of the business, and I cannot accept that my business/life partner has been threatened the way you threatened him. On that same morning, and due to the events, my general manager got injured and was not able to work the following day. Do you really think I do have enough time at the moment to be present in Pinjarra? So, as most of the staff told us and witnessed it, you do have resigned from your position as Head Pastry Chef on Wednesday 27 th of September 2023 at 10am. We do accept your resignation as we cannot have you any longer on our premises. Please find attached a signed copy of the Resignation Acceptance with Short Notice for your records. The immigration department has been contacted already in order to break your contract between us as you resigned and you have now 88 days to find a new employer. As well, a Restraining Order has been placed with the Court of Mandurah against you by both my general manager, Adrien Boulanger, and my business/life partner, Julien Soulage, so if you get any close from them or the property further actions will be taken against yourself. Do not feel concerned about your money, everything will be paid to you in all, but on your side, we do not want to hear from you ever again. You have done too much damage towards too many people and, now, it has to come to an end. Kind Regards The respondent attached a letter accepting the applicant’s resignation on short notice, which was signed by several employees ( the resignation letter ): Mr  Boulanger accepts that he signed the resignation letter. Ms  Lenogue gave evidence that she worked with the applicant for three weeks before his termination. Ms  Lenogue’s evidence was that her and other staff members were concerned about the applicant’s conduct and did not want to work with him anymore. On 2 October 2023 , the applicant responded: The fact that I said good bye to the chefs in the kitchen and not directly to my boss (you) has no value, I sent you a email to let you know that I will be back at work at the end of my period of unsuitability due to my injuries, certified by the certificate of capacity, I never quit. The applicant completed an incident report with the police on 2   October 2023. After the report was made, Mr  Boulanger and Mr  Soulage were called into the police station for a n interview. No charges were laid against Mr  Boulanger or Mr  Soulage following the interview. The   respondent exhibited the police incident report into evidence, confirming the evidence that no charges were laid against Mr  Soulage or Mr  Boula n ger ( Exhibit R12 ) . The respondent’s evidence is she considered the applicant’s conduct and communications and concluded that the applicant ’s resignation had been in the heat of the moment . S he therefore could not rely on the resignation. The respondent’s evidence is that due to the violence, the false representations in the past and the refusal of other staff to work with the applicant , she decided to terminate his employment. The respondent says she did not give the applicant a warning letter because of the severity of the misconduct and the termination was immediate. On 3 October 2023 , the respondent sent a letter to the applicant , informing that his employment was terminated effective 27 September 2023 , for serious misconduct . The respondent’s evidence is she did not directly witness either of the two altercations . S he   relied on the information given to her by other employees and the reports completed by Mr  Soulage and Mr  Boulanger for the purposes of the restraining orders. The respondent called Mr  Soulage and Mr  Boulanger as witnesses at the hearing . Mr  Soulage and Mr  Boulanger do not contest the applicant’s recollection of the events of 27 September 2023 . However, they both recall that the applicant was behaving aggressive ly and that the applicant initiated the altercation by removing the keys from the van . The respondent accepts that, before deciding to terminate the applicant’s employment, she did not notify him that termination was being considered, did not provide the reasons for termination, and did not give him an opportunity to respond. Legal f ramework and c onsideration – u nfair d ismissal The Commission in T he Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985)   65   WAIG 385 sets out the test for determining whether the employer acted harshly, unfairly or oppressively in dismissing the employee . The test is whether the right of the employer to dismiss has been exercised so harshly or oppressively as to amount to an abuse of that right. In this matter , the dismissal was a summary dismissa l for alleged serious misconduct . The   employer dismissed the employee, without giving notice, or payment in lieu of notice, and therefore , the dismissal is a summary dismissal. Summary dismissal will not be unfair where an employee has committed an act of serious misconduct. In Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001)   107   IR   117 , the Supreme Court of Victoria found a right to terminate because of serious misconduct : … the authorities do establish that there are offences which justify dismissal but which would not, in themselves, show that the employee was intending not to perform contractual obligations in the future. There may be an example of a one off serious act of misconduct which would justify dismissal, even though the probabilities were high that it would not occur again. This may be especially so when the employee is asked to explain his conduct, and shows remorse and gives an undertaking that the conduct will not occur in the future [25 4 ] . The employer has the onus of showing that there was serious misconduct justifying summary dismissal. Whether there is misconduct that will justify the employer’s decision to terminate the employee , are questions of fact in each case : Blyth Chemicals Ltd v Bushnell [1933]   HCA   8; (1933) 49 CLR 66 at (73) citing Clouston & Co v Corry [ 1906 ] AC 122. In this matter , the conduct of the applicant in removing the keys from the van , hindering Mr  Soulage from doing his work , engaging in physical altercations with other employees and throwing a bottle in the vicinity of Mr  Soulage , are clearly acts of misconduct. The applicant does not demonstrate any insight for the consequences , nor any remorse for his actions. The   applicant maintains he was justified in removing the keys and not returning them when repeatedly requested to do so , because he want ed to have a conversation with Mr  Soulage . The applicant defends his action s of throwing the bottle because he threw it at the wall above and to the side of Mr  Soulage out of frustration, and it was not intended to harm him . Furthermore, t he applicant disregards the personal injury and damage that may have resulted from his actions. The applicant ’ s conduct in engaging in fighting with the two employees and throwing a glass bottle in the direction of another employee may also be serious misconduct . The evidence is that the first altercation was instigated by Mr  Boulanger trying to retrieve the van keys because the applicant would not return the van keys. However, I also find that the applicant actively engaged in the physical altercation given the injuries sustained by Mr  Boulanger . In   the second altercation, I find the applicant provoked Mr  Soulage by throwing the bottle in his direction, who then tackled the applicant in response to the applicant throwing the bottle. The applicant maintains he simply defended himself . H owever , throughout the hearing , the applicant has not demonstrate d any insight into the possible consequences of his behaviour . Clearly the applicant misconducted himself. The question I must determine is whether the respondent’s decision to summarily dismiss the applicant was fair considering the applicant’s misconduct. The principles of this nature were reviewed by the Commission i n Charles Henry Rosenhal v John Palermo [2010]   WAIRC   00401 ; (2010) 90 WAIG 709 ( Palermo ) citing Bi-Lo Pty Ltd v Hooper [1992] 53 IR 224 ( Bi-Lo ) : The onus lies on an applicant to prove that a dismissal has been unfair; however, there is an evidentiary onus on the employer to show that misconduct has occurred. Newmont Australia Ltd v The Australian Workers’ Union, Western Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677 at 679. The decision of the Full Bench in Western Mining Corporation Limited v The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers (1997) 77 WAIG 1079 at 1084 deals with the requirements for procedural fairness in dismissal. The Full Bench said: Failure to accord procedural fairness is one factor to take into account in deciding whether there has been an unfair dismissal (see Shire of Esperance v Mourtiz 71 WAIG 891 (IAC) per Kennedy J at page 895 where he said – In my opinion, any breach of the rules of natural justice was a relevant circumstance in the determination of the critical question as to whether the dismissal was harsh or unjust. Whether an employer, in bringing about a dismissal, adopted procedures which were fair to the employee is an element in determining whether the dismissal was harsh or unjust – see The Law of Employment, Macken, McCarry & Sappideen, 3rd ed, 277-278, and the authorities there cited. In some cases, this can be a most important circumstance. But in a case such as the present, no question of the invalidity of a decision, as such, falls for determination. The case does not turn simply upon the respective legal rights of the parties. Whether the dismissal is harsh or unfair will depend on all the circumstances, including substantial and procedural unfairness. The Full Bench in that matter referred to the decision of the Industrial Commission of South Australia in Full Commission in Bi-Lo Pty Ltd v Hooper [1992] 53 IR 224 at 229-230. The Commission said at page 229 – Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee’s work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable. [ 69 - 71] In this matter , the respondent has established the misconduct occurred. However, the respondent did not conduct a ‘full and extensive investigation’ into the incident, as referred to in Bi-Lo . Certain facts are of note to come to this conclusion. T he applicant was not afforded the opportunity to answer the allegations made by Mr  Soulage and Mr  Boulanger . The respondent acknowledges she relied on the reports of other employees and did not directly observe the altercations , nor the events immediately before these altercations. The respondent ought to have provided the applicant an opportunity to respond to the allegations raised by the other employees. In addition, the respondent did not treat the employees involved in the physical altercations in the same manner. Despite acknowledging that Mr  Boulanger had assaulted the applicant , the respondent gave him a written warning that his employment may be terminated if he repeated this conduct. This is inconsistent with the respondent’s explanation that there were concern s for the safety of other employees from the applicant’s conduct in circumstances where Mr  Boulanger was only counselled for his involvement in the altercation . The respondent also acknowledges that her concerns regarding the discrepancies between the applicant’s reported bakery production and sales , and the applicant’s alleged misrepresentation as a business owner, had not been communicated as performance or disciplinary matters which may have result ed in his termination. There was no evidence presented during the h earing that the respondent had counselled the applicant previously about his performance , nor his behavio u r in the workplace . Whilst the applicant’s behaviour was clearly inappropriate, applying Palermo [69], the onus was on the respondent to show that misconduct had occurred at the time and to consider the relevant circumstances . Applying Bi-Lo , t he respondent failed to conduct a ‘ full and extensive investigation ’ to the extent necessary to justify summary dismissal. In these circumstances , I find the applicant was unfairly dismissed. Given this finding , I turn to considering the a ppropriate remedy . Remedy – u nfair d ismissal I find that reinstatement is not practicable , given the deterioration in the relationship between the parties. S ection 23A(6) of dismissal the Act provides for compensation for loss and injury the applicant sustained from the , and where reinstatement is impracticable . If, and only if, the Commission considers reinstatement or re-employment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal. In Milan Mall v Saybolt Australasia Pty Ltd [2006] WAIRC 05271 ; (200 6 ) 86 WAIG 2817 [86] ( Milan Mall ) , the loss was limited to the period between the date of the employee’s dismissal and the date when the employee could have been fairly dismissed: There is a question raised by the respondent as to whether Mr  Mall could have been fairly dismissed on notice. For the reasons expressed I do not consider that such a course of action would have been fair. However, there is a real question as to whether Mr  Mall’s employment would have lasted in any event. In the case of Ramsay Bogunovich –v- Bayside Western Australia Pty Ltd 79 WAIG 8 Kenner C says at page 13: As to loss and injury, it is not the case that an applicant who has been found by the Commission to have been unfairly dismissed, and who is to be awarded compensation, is automatically entitled to an award of compensation for loss representing the loss of wages or salary from the date of dismissal to the date of the hearing. That may be the ultimate outcome after findings are made and an assessment by the Commission, as to the quantum of compensation having regard to s 26 of the Act and factors such as the employee’s duty to mitigate his or her loss. All the circumstances of the case need to be considered. For example, it well may be that despite the Commission’s finding that the dismissal was harsh, oppressive and unfair, it was characterised as such by reason of the manner or process leading to the dismissal rather than the substantive reasons for the dismissal itself, in the sense in which that principle is referred to in Shire of Esperance v Mouritz (1991) 71 WAIG 891. In such a case, it may be open to find as a fact on the evidence, that the unfairly dismissed employee could have been fairly dismissed by the employer shortly after the actual dismissal in any event. In a case such as this, it would be open for the Commission to find that the unfairly dismissed employee’s loss is limited to that period between the date of the employee’s actual dismissal, and when he or she could have been fairly dismissed in any event. Similar to Milan Mall , I find that the period of time for which to order compensation for loss in this matter, is to be determined by considering the circumstances at the time of the dismissal. The respondent held significant concerns for the applicant’s conduct on 27   September   2023. The respondent ought to have put these concerns to the applicant, sought a response and indicated that she was considering the termination of his employment. The applicant’s contract of employment provides for suspension with or without pay . I f the respondent invoked the right to suspend the applicant , it would have afforded the respondent an opportunity to investigate the events on 27 September 2023 and any other concerns with the applicant’s performance and conduct. The findings of that investigation could have been detailed and an adequate time provided for the applicant to respond. I find that the loss is the period between the actual dismissal on 27 September 2023 and the period of an adequate investigation . The applicant was certified as unfit for work until 5   October 2023. With the applicant being provided with time to respond to any allegations, and then a period for the respondent to consider the applicant’s response , t his process would likely have taken approximately three to four weeks. At no point during the proceedings has the applicant expressed any remorse , nor acknowledge d that his actions were inappropriate , dangerous, and constituted serious misconduct . Given th e applicant’s lack of remorse and insight into his conduct , it is likely the respondent would have concluded after an investigation that the applicant may repeat his misconduct in the future , and likely may have terminated his employment in any event. In   these circumstances , the dismissal would have been fair if it had taken place three to four weeks following the applicants return to work and with the provision of notice as per the applicant’s contract of employment. However, the two other employees involved in the altercations , Mr  Soulage and Mr  Boulanger, had each applied for a M isconduct R estraining O rder . On 18 October 2023 , the applicant and Mr  Boulanger agreed to the ter m s of a consent order which provided for Mr  Boulanger withdraw ing his Misconduct Restraining Order application in re turn for the applicant committing to a formal undertaking. F or a period of six   months , the applicant was not to communicate or attempt to communicate with Mr  Boulanger . Furthermore, the applicant was no t to enter the premises where Mr  Boulanger lives or works or be within 20 metres of the nearest external boundary of any such premises, nor approach or remain within 20 meters of Mr  Boulanger. The applicant’s agreement to the ter m s of the consent order , means the applicant would not have been able to attend the workplace after 18 October 2023. The applicant freely chose to agree to the ter m s of the consent order. Therefore, given the ter m s of the consent order, t he applicant could not fulfill the inherent requirements of his contract of employment from this date. On 15 November 2023 , the applicant and Mr  Soulage signed a formal undertaking . F or a period of 12 month s, the applicant, amongst other things, would not communicate with Mr  Soulage nor the respondent except in writing for the sole purpose of concluding Fair   Work   Commission proceedings. The applicant undertook to not approach or remain within 25 metres of Mr  Soulage , the respondent and Café Cherie in Pinjarra , n or any other place that Mr  Soulage or the respondent lived, worked or educated. The applicant’s agreement to the ter m s of the formal undertaking between himself and the respondent ’s partner, Mr  Soulage, means the applicant would not have been able to work for the respondent after 15 November 2023. In all the circumstances , I find the applicant was unable to continue working for the respondent after 18 October 2023. Therefore, the applicant suffered a loss for the period between 28 September 2023 and 18 October 2023. This amounts to a loss of three weeks . The   applicant’s choice to agree to the ter m s of the consent order , means that the notice period is void. I will order the respondent to pay the applicant $ 4,56 0 .00 ? gross within seven days of the Order issuing. Contract ual b enefit s c laim During the unfair dismissal proceedings, the applicant filed a contractual benefits claim pursuant to s 29(1)(d) of the Act against the respondent on 1 August 2024. The Form 3 – Contractual Benefit Claim , set s out the value of the benefits claimed: (a) $5 , 130 equipment and materials (b) $2 , 248 for penalty rates/holidays accrued missing for the first period 1/ 7 /2021 to 1/4/2022 (c) $2 , 170 for unreasonable extra hours unpaid for the period from 1/7 / 21 to 1/4/22 (d) $6 , 479 for penalty rates/holidays accrued missing for the second period, from 2 1 /6/2022 to 25/06/2023 (e) $1 , 684.54 estimated penalty rates because [the respondent] did not even accrued them on payslips for the 26/6/2023 to 27/9/2023 (f) $26 , 757.50 for 764.5 unreasonable extra hours, second period from 21/ 0 6/2022 to 27/09/2023 (g) $ ? for 4 public holidays wo r ked and not accrued [the applicant ] cannot find the correct monetary value The initial claim filed by the applicant, did not sufficiently detail the denied contractual benefit , nor the term of the contract of employment re lied up on to support his claims . On direction from the Commission, t he applicant filed further and better particulars on 17   March 202 5, which argues that the first engagement contract of employment signed on 27   May 2021, applies to all periods worked for the respondent up until 18 September 2023 . The applicant clai m s he is entitled to payment of $2 , 170 .00 for the first engagement and $26 , 757 .00 for the second engagement, being an accumulation of at least 764 extra hours worked under clauses 4.3 and 4.4 of the first engagement contract of employment ( Additional h ours c laim ) . The applicant clai m s he is entitled to payment of $5 , 130 .00 being for equipment he purchased under clause 8.1 of the first engagement contract of employment ( Expenses   r eimbursement claim ) . The applicant clai m s he is entitled to payment of $9 , 120 .00 being for approximately six   weeks accrued annual leave under clause 9.2.1 of the first engagement contract ( Accrued   a nnual l eave claim ) . The applicant clai m s he is entitled to payment of $868.00 being for public holidays on which he worked under clause 10.1 of the first engagement contract of employment ( Public   h olidays claim ) . The applicant clai m s he is entitled to payment of the equivalent of three weeks for the period of notice under clauses 16.1, 16.2, 16.3, 16.4, 16.7 and 16.7.2 of the first engagement contract   of employment ( Notice p eriod claim ) . Contractual t erms As per HotCopper Australia Ltd v Saab [2001]   WAIRC 03827; (2001) 81 WAIG 2704 , t he   onus is on the applicant to demonstrate that he is entitled to a benefit which has been denied under a term of a contract of employment . As outlined in my findings concerning the contract of employment at [ 4 6 ] and [50] above, the evidence does not establish that the ter m s of the applicant’s first engagement applied to his second engagement and was a contractual arrangement with the respondent. Additional h ours claim During the first engagement, the applicant says he worked ‘unreasonable extra hours’ and clai m s $2,170.00 for these hours he says he ought to have been paid during this period. The applicant clai m s $6 , 479 .00 for penalty rates that were accrued, and ‘missing’ in the second engagement and an additional $ 26,757.50 for ‘unreasonable extra hours’ during the second engagement. The applicant’s evidence to support the additional hours claim, is extracts from his monthly diary with handwritten notations of the hours he worked for each day ( Exhibit A 17 ) . The respondent submits that this evidence ought to be given no weight by the Commission. The respondent says the applicant did not provide his diary to the respondent during his employment; there are no signatures, approvals or acknowledgements that indicate the respondent confirmed these records are accurate . The respondent asserts there is no record which states their agreement to the applicant working the alleged additional hours. It is uncontested that the contract of employment signed by the applicant on 27   May 2021 , applied to the ter m s and conditions of the applicant during the first engagement ( Exhibit   A19 ) . Clause 4 of the first engagement contract of employment provides: 4. Hours of Work 4 . 1 Your ordinary hours of work per week will be 38 hours per week plus reasonable additional hours. 4.2 Your actual hours of work each week will depend on operational requirements and flexibility may be required Reasonable additional hours 4.3 Given the nature of your role you agree to work the additional hours (over and above the ordinary hours of 38 hours per week) as required under the previous heading ‘Hours of Work’ and you agree and acknowledge that these additional hours are reasonable. 4.4 Unless otherwise provided for in this Agreement, payment for reasonable additional hours (over and above the ordinary hours of 38 hours per week) has been factored into your renumeration. You acknowledge that you will not receive payment over and above your renumeration in respect of any reasonable additional hours worked. Given the ter m s set out in clause 4.4 , the applicant agreed that it is a term of the contract of employment during the first engagement , that any additional hours have been remunerated through his gross salary. Any additional hours worked do not entitle the applicant to additional remuneration. It follows that even if the applicant is correct that the ter m s of his employment during his second engagement are the same as that of the first engagement, in his words, the contract of employment continued , then similarly the applicant’s contract of employment does not provide a sound basis for his claim for additional remuneration for additional hours. Expenses reimbursement claim The applicant clai m s $5,130.00 for payment of tools and equipment that he says were not reimbursed by the employer. The applicant’s evidence of the purchase of ite m s is a photo of a handwritten note of the cost of each item attached to a message sent to the respondent asking : ‘ when do you expect to pay me my investment and [ materi a ls ] ’ ( Exhibit   A24 ) . The applicant submits there are no payments recorded in his bank account in accordance with the ite m s  bought . The respondent’s evidence is that the applicant purchased the ite m s through Facebook   Marketplace, and the sellers of the ite m s were required to be paid in cash. The   respondent says she advanced the cash to the applicant so that he was able to pay and collect the items. The respondent submitted a copy of the Lily Paris Patisserie Activity Statement dated 30 September 2023 , which was tendered by the applicant into evidence ( Exhibit   A25 ). The a ctivity s tatement shows an entry under the account section titled ‘Depreciation – Plant #2078 and Equipment (416) ’ . The details of the account say that the employee was reimbursed $5,130.00 in cash for the months of July, August and September   2023, for ite m s purchased for the business. The respondent does not contest the applicant purchased the ite m s claim ed. H owever , they submit that the applicant was reimbursed for all the equipment that he purchased. The applicant argues that the respondent has contrived the copy of the Activity Statement . The applicant says it is too coincidental that the amount he clai m s and the amount in the a ctivity statement , are the same . The respondent says the amounts match other purchases made for the business, by either herself or other employees . The difference however, the respondent submits, is that the other purchases were not with cash . I have considered the clai m s of the applicant and the respondent’s explanation , and I am satisfied that the applicant was provided with the funds to purchase the ite m s he is claiming. E ven if the applicant is correct in his assertion that the first engagement contract applied at this time , the respondent has not denied the applicant a benefit under clause 8.1 of th e first engagement contract. Accrued a nnual l eave claim T he applicant clai m s payment for six weeks annual leave , amounting to $9,120.00 . The onus is on the applicant to demonstrate that he is entitled to the benefit of annual leave as a n entitlement under a contract of employment. As set out in my reasons above at [4 6 ] , I have not been able to conclude that the ter m s of his first engagement applied to the applicant’s second engagement . T he payslips tendered by the applicant for the periods between 28 March 2022 and 2 4   September 2023, do not provide for the recording of annual leave. The final payslip for the period 25 September 2023 to 5 October 2023, records the ‘remaining balance’ of annual leave being paid out to the applicant . This evidence supports the respondent’s contentions that the applicant was engaged as a casual until 18 September 2023 on the grant ing of the 494-v isa. The payslips do not support the applicant’s contentions that he was engaged under the same ter m s as the first engagement. Based upon the evidence before me, I find the applicant was paid out his accrued annual leave from 18 September 2023 to 27 September 2023, being the date of his termination. Even if the applicant is correct that the ter m s of his employment during his second engagement , are the same as that of his first engagement, the applicant has not been denied a benefit under th e first engagement contract. The ter m s of the contract of his first engagement do not establish an entitlement to annual leave. Clause 9 of the first engagement contract of employment, states the following: 9. Annual, Personal/Carers , Compassionate and Parental Leave 9.1 You are entitled to annua l leave, personal/care’s leave, compassiona te leave and p ar ent a l le a ve in accordance with legislative requirements. … The clause states there is an entitlement in accordance with legislative requirements ( emphasis   added ) . The   words of this clause do not create a term of the employment contract for annual leave , nor a benefit under the contract of employment. The benefit is to be found in an industrial instrument and the relevant legislation, not the ter m s of the contract of employment . T he applicant has not discharged the requirement for him to demonstrate an entitlement under a term of a contract of employment and his claim for annual leave must fail. Public h olidays claim Neither the application nor the further and better particulars set out the specific public holidays the applicant clai m s he has work ed and was not paid . In the first engagement, the applicant says that he was not paid for public holidays he ‘accrued’ and clai m s $2,248.00 . T he applicant tendered various photographs taken on 25 September 2023 , to support his claim that he worked on that day , being the King ’s B irthday public holiday. The   photographs submitted are tenuous , and I cannot conclude from it that the applicant was working on that day. The respondent does not dis pute that the applicant worked on that day . However, she clai m s this was not mutually agreed as per the ter m s of the contract of employment. Clause 10 of the first engagement contract of employment provides: You will be entitled to paid leave on working days declared as public holidays in Western Australia. You may be required to work on a particular public holiday; however, this is to be mutually agreed. Given the ter m s  set out in clause 10 of the first engagement contract , and similarly clause   10 of the third engagement contract, the applicant agreed it was a term of the contract that he would be entitled to paid leave on a public holiday if he did not work on that day. The   contract also provides that he agreed he may be required to work on a public holiday when it is mutually agreed with the employer . Importantly , the ter m s of the contract do not provide for an entitlement to any payment arrangements in the even t a public holiday is worked. The applicant’s claim is for payment for public holidays he worked. The onus then is on the applicant to show that it was a term of his contract that he be paid an entitlement for working on public holidays. The applicant has specified only one public holiday on which he worked, being 25 September 2023. The other three days have not been particularised. The   applicant has not demonstrated that the relevant contract of employment included a term to be paid a specific entitlement on the public holiday. The applicant has also not demonstrated that the requirement to work on this day , was mutually agreed with the employer and the agreement included payment for the day worked. The applicant’s claim in this respect is unclear and based on the evidence, I cannot conclude that he has been denied a contractual benefit. Notice period claim The applicant clai m s three weeks ’ payment of notice in lieu of termination. This matter has been determined within my findings and conclusions concerning the applicant’s unfair dismissal application . Conclusion and determination The applicant has not established a benefit that has been denied under a term of the relevant contract of employment . The claim will be dismissed on this basis. For the unfair dismissal application, I will issue a declaration that the applicant was unfairly dismissed by the respondent and order the respondent pay the applicant $ 4,560 .00 gross within seven days of the date of the O rder issuing. A M inute of Proposed Order will now issue in these terms.