Industrial Magistrates Court of Western Australia

The claimant brought a claim in the Industrial Magistrates Court (Court) using the small claims procedure under section 548 of the Fair Work Act 2009 (Cth) (FWA).

The claimant contended that

1. he was employed as a chef at the Hong Kong Tea Café, operated by Cheung Brothers (WA) Pty Ltd (the respondent), for four hours on 17 July 2025,
2. the Restaurant Industry Award 2020 [MA000119] (the Award) applied to his employment, and
3. the respondent failed to pay him $146.22 for work performed in contravention of the FWA.

The respondent denied the claim, contending that the claimant was not employed but instead participated in a work trial on the relevant date. The central issue for determination was therefore whether the claimant was employed by the respondent as a casual employee (as opposed to undertaking a work trial) and, if so, whether the Award applied to and covered his employment.

The claimant relied on his witness statement and oral evidence, asserting that he had responded to a WeChat advertisement for a grill chef position, had a brief face-to-face conversation with the respondent’s director and was told to work at the Café on 17 July 2025, for which he would be paid. The claimant gave evidence that during the shift he performed the duties of a grill chef, cooking orders independently with minimal supervision, other than initial guidance from the Head Chef regarding the location of ingredients and plating requirements. 

The respondent relied on the evidence of its Manager, Accounts and Operations (Managing Director). The Managing Director stated that the claimant attended a work trial to assess his suitability for the role and that he was supervised by the Head Chef. She further claimed that the Head Chef reported to her that the claimant could not handle the work independently or be classified as a chef. 

The Court found the claimant’s evidence to be more direct and persuasive, noting that the Managing Director’s evidence was largely based on what others had told her, rather than her own observations or direct involvement. The Court also noted that the respondent did not call its director or the Head Chef to give evidence about their conversations or interactions with the claimant. 

The Court found that the claimant attended the Café on 17 July for four hours in response to a WeChat advertisement for chefs and kitchen hands posted by the respondent’s director. While the conversation between the claimant and the director lacked detail, it included an understanding that the claimant would be paid for the work performed while being assessed. Other than some preliminary guidance, the claimant cooked orders without supervision, including from the Head Chef. In all the circumstances the Court found that the ‘objective reality of the relationship’ was one of casual employment, rather than participation in a bona fide paid or unpaid work trial. The Court also found that the Award applied to the claimant’s employment and that the respondent was required to pay him in accordance with its terms. By failing to do so, the respondent breached s 45 of the FWA. 

The Court, accepting the claimant’s claimed Award hourly rate of $32.31, determined that for four hours of work, the claimant was entitled to $129.24 plus pre-judgment interest of $4.21 pursuant to s 547(2) of the FWA. Accordingly, the respondent was ordered to pay the claimant a total of $133.45. 

The full decision can be read here. 

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The Industrial Magistrates Court (IMC or Court) has dismissed a Damaging Action Claim because it found the ‘complaints’ made by the former employee were not employment-related inquiries or complaints and further found that no damaging action took place.

The claim was brought by a former employee of the Department of Education (Department) who was employed by the Department under a series of fixed‑term contracts between February 2022 and October 2023. During her final contract period, she engaged in various workplace communications which, in her claim at the IMC, she characterised and relied on as employment‑related inquiries or complaints for the purposes of section 97A of the Industrial Relations Act 1979 (WA) (Industrial Relations Act).

She alleged that, because of her complaints, the Department took the following damaging actions against her:

1. Reassigned her duties
2. Required her to interview for certain roles
3. Transferred her to another work area
4. Did not extend her contract
5. Placed her on a performance management plan

The Court highlighted that section 97(a) of the Industrial Relations Act defines damaging action, in the case of an employee, to mean the following actions:

• Dismissing the employee
• Altering the employee’s position to the employee’s disadvantage
• Refusing to promote or transfer the employee
• Otherwise injuring the employee in relation to the employee’s employment with the employer or another person
• Threatening to do any of the above

The Court found that the matters the claimant put forward as ‘damaging actions’ were in fact ordinary operational and performance‑management decisions that did not alter the claimant’s position to her disadvantage, injure her employment, or constitute damaging action within the meaning of section 97(a) of the Industrial Relations Act. Further, the Court noted that the Department was under no obligation to extend a fixed‑term contract or offer the claimant any ongoing employment.

The claimant put forward to the Court a series of nine work-related emails and interactions which she characterised as complaints. She claimed these ‘complaints’ were the reasons the Department made the above five decisions about her employment which she viewed to be detrimental to her career growth, mental health, and ongoing employment with the Department.

The Court found that while some of those communications might qualify as employment-related enquiries, some were not complaints or enquiries as defined by section 97A of the Industrial Relations Act.

The Court found that four of those communications did not amount to employment‑related inquiries or complaints because they:

• did not clearly express a grievance;
• did not seek redress; and
• were not communicated to a relevant decision‑maker.

The remaining five communications were capable of being characterised as employment‑related complaints, as they contained:

• allegations about bullying and requests for a change in supervision;
• concerns about workload;
• requests for clarification on work processes; and
• pay‑related matters.

While some of the complaints met the requirements under section 97A of the Industrial Relations Act, the Court accepted the Department’s evidence that its decisions (which the Court found were not damaging action in any event) were made for legitimate operational, performance management and contractual reasons. And not because the claimant had made any inquiries or complaints. 

The decision also examines the legislative framework of damaging action claims, drawing comparisons with general protections applications under the Fair Work Act 2009 (Cth) and relevant case law. In this analysis, Her Honour stated that, “A claim for damaging action does not entitle [the claimant] to ‘a broad inquiry as to whether [she] has been subjected to a procedurally or substantively unfair outcome’”.

The Court identified various issues and evidence that the claimant sought to litigate in her damaging action claim that were not relevant to the Court in determining if any damaging action had occurred. The Court focused on the explicit enquiries, the alleged damaging actions and if those decisions she viewed as damaging actions were made because an employment-related enquiry or complaint had or could be made. The issues Her Honour ruled as irrelevant in the claim included:

• whether specific incidents of alleged bullying had occurred;
• the validity of a recruitment process by the Department;
• the manner in which a job interview outcome was delivered;
• whether the claimant performed specific job tasks satisfactorily or introduced improvement processes;
• an assessment of training that was provided or should have been provided in the claimant’s view;
• the validity of any performance improvement plans the Department implemented.

In addition to finding no damaging action occurred, the Court also determined that the claimant had not suffered any loss or injury as a result of the matters she said she had complained about. Her employment ended due to the expiry of her contract, and she did not suffer compensable injury beyond ordinary workplace disappointment. Accordingly, the Court dismissed the claim.

The decision can be read here.