KAUR v AHS Hospitality Pty Ltd

[2019] FCCA 1224

EDERAL CIRCUIT COURT OF AUSTRALIA

KAUR V AHS HOSPITALITY PTY LTD [2019] FCCA 1224

Catchwords:
INDUSTRIAL LAW – SMALL CLAIMS – Hospitality Industry (General) Award 2010 – unpaid wages and unpaid penalty rates – consideration of Individual Flexibility Agreement – application dismissed.

Legislation:
Fair Work Act 2009 (Cth), ss.457, 548
Fair Work Regulations 2009, reg.4.01
Federal Circuit Court of Australia Act 1999 (Cth), s.76
Hospitality Industry (General) Award 2010, cls.7, 12, 31, 32

Applicant: MANPREET KAUR

Respondent: AHS HOSPITALITY PTY LTD

File number: MLG 3264 of 2018

Judgment of: Judge Mercuri

Hearing date: 25 February 2019

Date of last submission: 25 February 2019

Delivered at: Melbourne

Delivered on: 15 May 2019

REPRESENTATION

Advocate for the applicant: Mr McDonald

Solicitors for the applicant: United Voice

Advocate for the respondent: Mr Riorden

Solicitors for the respondent: None

ORDERS

1. The applicant’s application filed 30 October 2018 be dismissed.

2. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3264 of 2018

MANPREET KAUR

Applicant

And

AHS HOSPITALITY PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction and claims

1. This application came before the court in its small claims jurisdiction under the Fair Work Act 2009 (Cth) (“the Act”). The applicant alleges unpaid wages and penalty rates in respect of all hours worked during her employment with the respondent.

2. The applicant specifically claimed:

   a)unpaid wages in the sum of $7,206.87;

   b)unpaid Saturday penalty rates totalling $523.45;

   c)unpaid Sunday penalty rates totalling $1,329; and

   d)

   unpaid penalty rates pursuant to clause 31.4 of the

   
   Hospitality Industry (General) Award 2010

   (“the Award”) in the sum of $2,957.10.

3. The applicant also claimed interest on these amounts pursuant to

   
   

   section 457 of the Act.

4. The respondent opposed the making of orders in the terms sought and sought that the applicant’s application be dismissed with no order as to costs. 

5. The applicant was assisted in making her application and was represented at the hearing by Mr McDonald from United Voice. The respondent was represented at the hearing by Mr Riorden, a solicitor employed by the respondent.

Background

1. In her application, the applicant stated that:

   a)she commenced employment with the respondent on 9 May 2017 as a room attendant on a part time basis;

   b)

   she worked at the Pullman Melbourne, Albert Park

   
   

   (“the Pullman”);

   c)her employment was covered by the Hospitality Industry (General) Award 2010 and she was classified as a Level 1 employee under that Award;

   d)she was contracted to work from 9:00am until 2:00pm on Tuesdays but in fact she worked well in excess of these hours;

   e)her timesheets did not reflect the actual hours that she worked and that she was told by her supervisor what times to enter on her timesheets;

   f)the applicant kept her own records of the actual hours she worked and her claims in these proceedings are based on those records;

   g)in addition to being told not to record her actual hours worked, the applicant says that she was not permitted to take breaks whilst working; and

   h)she raised her concerns about the hours she was required to work with her employer but the employer denied her claims or that she was entitled to any further wages.

2. In her application, the applicant attached a series of handwritten notes which she deposed are records of the hours that she actually worked and the breaks she took (or not, as the case may be). Also attached is a spreadsheet for the period from 1 May 2017 to 12 November 2017, which set out how she calculated her underpayment claim for $12,016.58. 

3. The respondent conceded that the applicant was employed at the Pullman as a room attendant. The respondent also conceded that the applicant’s contract of employment states that her part time hours were from 9:00am until 2:00pm on Tuesdays. 

4. The respondent stated however, that the parties had signed an

   
   

   Individual Flexibility Agreement (“IFA”) dated 3 May 2017 which stipulated that the applicant’s hours may vary. Such variation might occur due to a range of factors, including hotel occupancy according to the respondent. A copy of the IFA was attached to the statement of

   
   

   Ben Kazakoff.[1]

   [1] Annexure C of the statement of Ben Kazakoff which was filed during the hearing.

5. The applicant gave evidence and was cross-examined. She was assisted at the hearing by an interpreter in the Hindi and English languages. However, for the most part she was able to answer questions asked of her without relying upon the interpreter. 

6. Mr Kazakoff gave evidence on behalf of the respondent and was subject to cross-examination. Mr Kazakoff also sought leave to file a statement upon which the respondent sought to rely. No objection was taken to the admission of that statement and he was cross-examined as to its contents.

7. It is common ground that the applicant was employed by the respondent. The respondent provides managed housekeeping services to, among others, the Pullman where the applicant worked. It is also common ground that although the applicant’s employment contract stated that she was employed on a part time basis working from 9:00am to 2:00pm on Tuesdays, her hours actually varied significantly over the course of her employment. The respondent agrees that the applicant’s hours varied from those set out in her employment contract, but says that the applicant’s hours were set in accordance with the IFA which the applicant signed on 3 May 2018. 

8. It is also common ground that a briefing meeting occurred at the commencement of each shift at which the applicant, and other room attendants, were allocated the rooms that they were required to clean during that shift. There is a dispute between the parties as to the time at which this meeting occurred. The applicant said that it occurred at

   
   

   8:30am or 8:45am whereas the respondent said that it predominantly occurred at 9:00am. 

9. There is also a dispute between the parties as to:

   a)whether the applicant was asked to come in early to start cleaning rooms before the briefing meeting;

   b)whether the applicant was directed not to correctly enter her hours on the basis of actual hours worked, but rather to enter her hours on the basis of the task sheets allocated at the briefing; and

   c)whether the applicant was directed not to take breaks during her shift unless she had completed her duties.

Small claims jurisdiction

1. This claim is brought in the court’s small claims jurisdiction pursuant to section 548 of the Act. Small claims proceedings can only be dealt with if:

   a)an applicant indicates that they wish to have their matter dealt with as a small claim; and

   b)importantly, the claim relates to an amount referred to in section 548(1A) of the Act that an employer was required to pay to or on behalf of an employee:

   i)under the Act or a fair work instrument;

   ii)because of a safety net contractual entitlement; or

   iii)because of an entitlement of the employee arising under section 542(1) of the Act.

2. In this instance, the applicant’s claims arise under the Award and clearly fall within the small claims jurisdiction. 

3. Clause 7.1 of the Award relevantly provides that an employer and employee may enter into an Individual Flexibility Arrangement in certain circumstances which may vary the terms of the award including those relating to:

   a)arrangements for when work is performed;

   b)overtime rates; and

   c)penalty rates.[2]

   [2] Hospitality Industry (General) Award 2010, cl. 7.1.

4. Relevantly, clause 7.11 provides that an IFA:

   …may be terminated:

   (a)at any time, by written agreement between the employer and the employee; or

   (b)by the employer or employee giving 13 weeks’ written notice to the other party…[3]

   [3] Hospitality Industry (General) Award 2010, cl. 7.11.

5. Clause 12 of the Award deals with part time employment and relevantly provides:

   At the time of engagement the employer and the part-time employee will agree in writing upon:

   (a)the number of hours of work which is guaranteed to be provided and paid to the employee each week or, where the employer operates a roster, the number of hours of work which is guaranteed to be provided and paid to the employee over the roster cycle (the guaranteed hours); and

   (b)the days of the week, and the periods in each of those days, when the employee will be available to work the guaranteed hours (the employee’s availability) (emphasis in original).[4]

   [4] Hospitality Industry (General) Award 2010, cl. 12.3.

6. Clause 12.4 then provides that the guaranteed hours could only be changed with the written consent of the part-time employee.

7. Clause 31 deals with breaks and relevantly provides:

   31.1An employee… who is required to work a shift of more than five hours and up to six hours may elect to take an unpaid meal break of up to 30 minutes during the shift and the employer shall not unreasonable refuse the request.

   31.2

   (a) If an employee is required to work a shift of more than six hours and up to eight hours, the employee is entitled to an unpaid meal break of no less than 30 minutes.  The unpaid break may be taken no earlier than two hours after starting work and no later than six hours of starting work. 

   (b)If the employee is required to work a shift of more than eight hours and up to 10 hours, the employee is entitled to an unpaid break of no less than 30 minutes and an additional 20 minute paid break (which may be taken as two 10 minute paid breaks).

   The unpaid break may be taken no earlier than 2 hours after starting work and no later than six hours after starting work…

   (c)If the employee is required to work a shift exceeding 10 hours, the employee is entitled to an unpaid break of no less than 30 minutes and two 20 minute paid breaks.  The unpaid break may be taken no earlier than two hours after starting work and no later than 6 hours after starting work. …

   31.3 …

   31.4 For a shift of more than six hours, if the employer does not release an employee for an unpaid meal break the employee shall be paid at the rate of 50% of the ordinary hourly rate extra for each hour or part of an hour from six hours after the employee started work until the employer gives the employee the unpaid meal break, or until the shift ends (emphases added).[5]

   [5] Hospitality Industry (General) Award 2010, cls. 31.1–31.4.

8. Clause 32 then provides penalty rates for part time employees who work on weekends and public holidays.

9. The IFA entered into by the applicant relevantly provided:

   The Employee will be rostered for work each week, in accordance with clause 30 – Rostering.  The days of work, the hours of work on each day and the start and finish time for each day may be varied by the employer from roster to roster or at any time by mutual agreement…[6]

   [6] Annexure C to the statement of Ben Kazakoff.

10. Section 548(3) of the Act further relevantly provides:

    In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:

    (a)in an informal manner; and

    (b)without regard to legal forms and technicalities.

Evidence and submissions

1. The applicant’s evidence is that although she was contracted to work on Tuesdays from 9:00am until 2:00pm, she regularly worked well in excess of these hours and has not been paid for all hours worked. 

2. In early November 2017, the applicant sent a letter of demand to the respondent in which she raised concerns about her pay. She relevantly said:

   I have not been paid… for work briefings in the morning, for my trolley set-up that I need for work for the day, my travel time from one room to another room and also sometimes it takes more time to clean very messy rooms. 

   My onsite supervisor or manager has made me to sign in and sign out at wrong times on the timesheets and calculating my hours by number of rooms I clean instead of actual time I start and finish my shifts. 

   I have never been given any breaks during my work from last 6 months, because according to rooms and supervisor calculations I only work less than 5 hours but reality is that most of the time I work continuously for 8 to 9 hours without any break…[7] 

   [7] Annexure D to the statement of Ben Kazakoff.

3. The applicant attached a handwritten document to her application which she says sets out her hours of work. This document records a date, start and finish time, and contains comments, primarily that there was no break taken during the shift.[8] Although the start and finish time varies across the entries, it appears that when she initially commenced, she started work at 8:30am. This then increasingly became earlier, first it was 8:00am or thereabouts during June and early July 2017. In mid-July 2017, the applicant started to work much earlier; for example, on 25 July she says she commenced work at 6:53am and then in August 2017 there were a number of days in which the applicant says that she commenced work at about 6:30am, which continued throughout August. The applicant’s start times then varied significantly in September and October. 

   [8] Applicant’s application filed 30 October 2018.

4. Of particular note, the applicant recorded that in late October 2017, her supervisor “asked (her) to put break time in (her) last week time sheet, when (she) didn’t have any break time at all…”[9]

   [9] Applicant’s application filed 30 October 2018.

5. In terms of finish times, the applicant’s record of her hours of work indicate that for the first couple of weeks, she regularly finished work between 4:30pm and 5:30pm. From mid-June 2017, her finish times started to vary with her finishing her shift from 2:15pm to 6:00pm. On

   
   

   11 August 2017, the applicant says that she worked from 7:30am to 7:20pm without a break. 

6. The payslip records which the applicant has attached to her application reveal that she was paid a range of hours on each day worked. There does not appear to be a fixed number of hours allocated to the applicant on any particular day or week. These records however, do not expressly state how many hours were said to have been worked on any one day and whether any breaks were taken.

7. As stated above, the Award provides that if an employee works over

   
   

   5 hours but less than 6 hours in a day, they are entitled to request a break which the employer cannot unreasonably refuse. There is no evidence before the court that the applicant sought any break in these circumstances or that any such request was unreasonably refused. 

8. The applicant also relied upon a spreadsheet in which she set out her hours worked and compared that to the hours for which she was paid. On the basis of this calculation, the applicant claims a total payment of $12,016.58.

9. The applicant gave evidence that:

   a)she regularly arrived before 9:00am for work and that when she did she was allocated some rooms to clean which she attended to before the morning briefing session after she had prepared her cleaning equipment;

   b)the morning briefing session was held at 8:45am and that at that briefing, she was allocated her rooms for cleaning that day;

   c)the practice was not to enter her start time on arrival but rather to complete the start and finish time at the end of the shift once the work was completed;

   d)she was told not to complete the timesheet according to the hours she actually worked, but rather on the basis of the amount of time allocated by the employer to clean the rooms which had been allocated to her.  When asked who told her this, the applicant said that it was her supervisor, ‘Abina’; and

   e)the employer allocates some 23 minutes per room to clean but in fact it takes much longer than 23 minutes for each room, particularly where the staff are required to undertake a spring clean or a deep clean. 

10. In addition, the applicant gave evidence that she did not ever take a break even when she was entitled to do so under the Award as she was told that staff should not take a break if they have not completed their allocated work. In the course of cross examination, when asked specifically whether she was expressly told not to take a break, she said that it was the work culture at the respondent’s workplace that staff were not to take breaks whilst there is work to be done in completing the rooms allocated to them to clean for that shift.  The applicant also said that if she did take a break, she was asked to come back and finish her work.

11. In response, Mr Kazakoff submitted that even if the hours recorded by the applicant are hours she spent at the Pullman, it does not necessarily follow that those were the hours she was required to and did work.

12. Mr Kazakoff gave evidence that he conducted an investigation into the applicant’s complaint. Attached to Mr Kazakoff’s statement are various documents which he prepared in the course of that investigation in November 2017. Among those documents are notes of his interviews with various staff who worked with the applicant at the Pullman. Having regard to the fact that I am not bound by the rules of evidence, which would preclude this material being tendered on the basis that it is hearsay, I have had regard to it in considering this matter.  It is the best evidence of discussions held with each of the employees interviewed by Mr Kazakoff.  In adopting this approach, I have also had regard to the fact that the applicant also seeks to rely on some of these notes in support of her case.

13. In his record of his discussion with Ms Bhawani Subramanyam, the executive housekeeper, she is alleged to have said:

    …if people are over their rostered times we ask why but we always have people put down the right times.

    …when a new employee starts we tell them this is the board you are working towards with allocated times but to write down their actual finishing times.  If people are over we talk to them, provide additional training to help them get up to speed.[10]

    [10] Annexure F of the statement of Ben Kazakoff.

14. Mr Kazakoff then records that:

    Bhawani then turned to her computer pulled up the roster and physically showed me rostered times of employees who had gone over their allocated times. Some substantially. Bhawani explained that they monitor productivity very closely as it is important but again reiterated that they speak to the employee about performance and improvement and never change the times on the timesheet.[11] 

    [11] Annexure F of the statement of Ben Kazakoff.

15. Mr Kazakoff’s notes also record a discussion he had with Ms Abina Chongbang Begha who, at the relevant time, was the supervisor.  Abina confirmed that she did the rostering and room allocations and that she commenced work at between 6:30am and 7:00am and that she usually has the room allocations done by 8:30am. In response to a question as to when staff start their shifts, Abina stated:

    …9am they typically come in anytime from 8:15am/8:30am make up their trolley and then attend the briefing at 8:45am.  They need to be ready to start cleaning at 9:00am.[12]

    [12] Annexure F of the statement of Ben Kazakoff.

16. Abina further told Mr Kazakoff that the applicant:

    …sometimes comes in early and requests rooms because she wants to finish early – this depends on how many hours are allocated, if there are any rooms available.

    If no rooms are available then they just need to wait, I keep telling them not to come in early.[13]

    [13] Annexure F of the statement of Ben Kazakoff.

17. Mr Kazakoff’s notes also indicate that he spoke to a number of the applicant’s work colleagues, also room attendants. It relevantly records the following evidence from an employee called ‘Dipsi’ who stated that she had been employed by the respondent for some 2 years:

    I start around 8:30, set up my trolley then go to briefing…

    … Bhwani says we are to sign out when we finish…

    We take our breaks between 12 – 1pm depending on how we are going with our rooms.[14]

    [14] Annexure F of the statement of Ben Kazakoff.

1. Dipsi was asked whether she came in early, and whether others do so they can start and finish early. Dipsi responded, “No there’s no point.  No rooms available, the girls who do (come in early) just sit in the café.”[15]

   [15] Annexure F of the statement of Ben Kazakoff.

2. Another employee called Likhitha Samineni had the following exchange with Mr Kazakoff:

   Mr K:    What time do you start?

   LS:         Around 8:15am our briefing is at 8:45am.

   …

   Mr K :   Have you ever been told to sign off at a different time?

   LS:Yes, when Bhwani was away, Abina told me to sign off at a different time.  When Bhwani got back I told her and she got it fixed.

   Mr K:    Have you been told to do that at any other times?

   LS:No when I first started, I would be rostered on for 3 or 4 hours.  Some days I was doing 6 or 7 hours, Bhwani said that we should be sign out at the time we finish.  I received more training and now I’m only sometimes over but it depends on the rooms.[16]

   [16] Annexure F of the statement of Ben Kazakoff.

3. Mr Kazakoff also spoke to the applicant during his investigation and reports that she stated that she would come in early “to set up my trolley and then I ask for my room allocation and start work so that I can finish early.”[17] The following exchange is recorded in Mr Kazakoff’s investigation notes:

   [17] Annexure F of the statement of Ben Kazakoff.

   Mr K:I can see on the roster you are meant to start at 9.00, why do you keep coming in early?

   App:      So I can get my rooms

   Mr K:    And what do you do when there are no rooms?

   App:Then I would go to the café and wait, but I usually get rooms

   Mr K:    Who is here when you come in that early?

   App:One other older lady, she has been here for a while but I don’t know her name (she is referring to Abina).

   Mr K:    So how do you know what rooms to do?

   App:      Because the supervisor tells me

   Mr K:But again, I’ve been told that there is no one here at that time.  I would like to show you the information your husband sent through (Pulled out print outs of ‘Record my hours’ timesheet sent through from Satyajit Padam.  Pointed to 22/09 as she has recorded 12 hrs and 12 mins).  The location data last reads at 12:50pm, in Inzenious which is our payroll system you are recorded 9:00 – 12:15pm and only 9 rooms allocated.  It couldn’t have taken 12 hours to clean 9 rooms?

   App:      No response[18]

   [18] Annexure F of the statement of Ben Kazakoff.

4. Mr Kazakoff’s report also states that on 22 November 2017, he attended at the Pullman to review the CCTV footage as part of his investigation. He states that whilst there, he noticed that the applicant was there and signed off at 2:47pm. He then looked at the sign out sheet and observed that she had actually noted 3:15pm as her finishing time. He called the applicant back and asked her why she had signed off at a time later than her actual finishing time. The applicant said “she did not have a break so put the break in an (sic) added 30 minutes to make her hours correct.”  Mr Kazakoff reminded her of his comments that it was important that she both take a break at the appropriate time and also that she record her actual hours worked. 

5. Mr Kazakoff’s report concludes with the following ‘Outcome and observations’:

   …

   -    Since investigation started and asking Manpreet to sign off/on at correct time, sign off time has been consistent between 2:30 and 4:00pm which is inconsistent with data provided by Manpreet for the previous month (October) 4:00 to 6:00pm

   -    Physically observed employees signing out at correct times

   …

   Remedial Actions Recommended

   -    Actions moving forward briefing to include: awareness and understanding of sign on/off procedure, awareness of break procedure and employee rights

   -    No early employee starts unless rostered by the business

   -    Trolleys are restocked at end of shift to enable morning shift efficiency.[19]

   [19] Annexure F of the statement of Ben Kazakoff.

6. Mr Kazakoff stated that the respondent has:

   …estimated times to service rooms depending on whether it is a departure clean or a stay over clean, and also based on factors including the size of the room, number of beds and bedrooms, kitchenette. These estimated times are used as a guide when rostering shifts to employees. However, the Respondent’s practice is to instruct its employees to record their actual finishing times, even if these went beyond the indicative roster times.[20]

   [20] Paragraph 15 of the statement of Ben Kazakoff.

7. Mr Kazakoff stated:

   a)it was not expected that all staff would only take 23 minutes to clean each room. Indeed, he said it was accepted by the respondent that a new staff member may take significantly more than that amount of time as they may take some time to learn how to do the cleaning job;

   b)if a staff member repeatedly took significantly more than the time allocated in the task sheet, there would be a conversation with that staff member to discuss how they were going about their tasks and what support they might need to be able to increase their efficiency;

   c)if a room attendant attended a particular room and it was particularly dirty or untidy and would clearly take longer than the allocated time, then the protocol was that the staff member would contact the supervisor who would come and assess the state of the room;

   d)if additional assistance was required to ensure that the work was completed in a timely manner, then the supervisor would either allocate another person to assist or would be able to understand why the clean took longer than the average allotted time; and

   e)staff were directed to take their breaks during the shift.  Due to the nature of the work and the fact that the attendants were allocated a range of rooms which needed to be cleaned during the shift, it was not the respondent’s practice to allocate a particular break at a particular time.  Rather, they were required to work out when it would be most convenient to take a break during the course of their shift. 

Findings

1. Although this claim is brought within the court’s small claims jurisdiction and the court in dealing with such matters is not bound by the rules of evidence, it is nonetheless for the applicant to prove, on the balance of probabilities, that her claim is established on the facts. 

2. For the reasons which follow, I am not satisfied that she has done so.

3. The applicant’s claim is in essence that she was directed to work, and in fact did work, more hours than those which she entered on her timesheet and for which she was paid. Moreover, she says that because she worked more than 6 hours per day on many occasions, she ought to have been provided with a break and the failure by the employer to do so, gives rise to further payment at a higher rate of pay for all hours worked after the break ought to have been taken.

4. The evidence which the applicant relies on to make this claim is her oral testimony that she worked more hours than those for which she was paid and also her handwritten notes of the hours she says that she worked.

5. For its part, the respondent relied upon information gathered by

   
   

   Mr Kazakoff during his investigation into the applicant’s underpayment claim.  No objection was taken to this approach and indeed, the applicant herself relied upon some of the statements attributed to other employees in support of her case. For example, the statements which supported the applicant’s assertion that the briefing session occurred at 8:45am and not at 9:00am.

6. On the basis of the totality of the evidence before me, the applicant has not established on the balance of probabilities that she was told to enter her rostered hours rather than her actual hours worked on her timesheet.  I find that whilst the respondent had an expectation that an employee should be able to complete the servicing of a room within a particular time frame, on average, it required staff to enter their actual time worked to ensure that it was paying its staff for time worked, but also in order to assess whether staff required additional training or support to become as efficient as possible. 

7. Moreover, the applicant has not established to the requisite standard that she was told to come in early. Rather, I find that it was the applicant’s preference to come in early and be available for any early rooms which might be allocated. 

8. I am not satisfied that the applicant has established to the requisite standard that the respondent either directed her not to take a break as required or refused to permit her to take such a break. I prefer the evidence of the respondent that staff were told that they needed to take their breaks as appropriate and inform the supervisor when they were doing so. Some of the information contained in the investigation report is consistent with this. Moreover, the applicant herself stated that she was told in October 2017 to enter a break in her timesheet. It appears that the applicant is suggesting that the employer was asking her to enter this on her timesheet even though no such break had been taken. In effect this, like much of the claim in this matter, is an allegation that the respondent was directing the applicant to falsely complete her timesheet. Given the obligations on an employer to keep employee records under the Act, this is a very serious allegation. Such a finding ought not to be made lightly in the absence of clear evidence. There is no such clear evidence in this case.

9. In coming to these conclusions, I have also had regard to the applicant’s comments to Mr Kazakoff during his investigation in which she said that notwithstanding having been told by him that she should make sure that she took breaks when working more than 6 hours, on at least one occasion she did not do so, but rather simply added the half hour at the end of the time she said she had worked. 

10. As to the time of the briefing meeting, there is a dispute as to whether this occurred at 9:00am or at 8:45am and whether staff were required to commence work by getting their trolleys’ ready prior to this meeting.  The respondent correctly conceded that if the applicant and indeed any other employee, was required to attend work and prepare their trolley or attend a briefing meeting before their rostered start time, then this additional time should also be included in their hours of work for which they are paid. Given my findings as to the accuracy of the applicant’s handwritten record of her hours of work, there is insufficient evidence upon which to make a finding that on any particular day, the applicant was required to attend a briefing meeting before 9:00am, or indeed that she was required to start work prior to 9:00am and, if so, the time she would require to prepare her trolley for the day’s work.

11. I note that one of the remedial actions arising from Mr Kazakoff’s investigation was aimed at avoiding any similar uncertainty in the future as to early starts and the time required for attendants to prepare trolleys prior to commencing their work. 

12. For the sake of completeness, I do not view the making of these recommendations as any form of acceptance on the part of the respondent that the applicant was in fact directed to start work early, or that the applicant was required to perform some of her duties, namely trolley restocking, in her own time before the commencement of her shift.

13. For each of these reasons, I order that the applicant’s application be dismissed with no order as to costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:       15 May 2019