2026 WAIRC 00903
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00903



CORAM
:
INDUSTRIAL MAGISTRATE R. COSENTINO



HEARD
:
WEDNESDAY, 12 AUGUST 2026



DELIVERED
:
WEDNESDAY, 13 AUGUST 2026



FILE NO.
:
M 171 OF 2025



BETWEEN
:
GEORGINA GAYE GEARD


CLAIMANT





AND





GREG WHEELER CONTRACTING PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – Alleged contraventions of Hospitality Industry Award 2020 – small claim – classification – whether claimant classified at Level 5 classification – Sunday penalty rates -claim upheld in part
Legislation : Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Instrument : Hospitality Industry Award 2020

Result : Claim partly upheld
Representation:
Claimant : In person
Respondent : Mr G Wheeler (director)


REASONS FOR DECISION
Given extemporaneously at the conclusion of the hearing, edited from transcript by her Honour for clarity and to provide complete references.
1 The claimant, Ms Georgina Geard, was employed by the respondent, Greg Wheeler Contracting Pty Ltd (the company) at its business, then known as Inner City Apartments, located at 875 Wellington Street, West Perth.
2 Ms Geard commenced this claim seeking payment of $11,085.59 for the company’s alleged contravention of the Hospitality Industry Award 2020. She elected for the proceedings to be dealt with under the small claims procedure set out in s 548 of the Fair Work Act 2009 (Cth) (FWA).
3 There are three components to Ms Geard’s claim. First, she claims she was underpaid from 4 April 2024, when she says she was promoted to office manager, as she was paid at the Level 3 classification rate of pay rather than the Level 5 classification rate of pay under the award (wage underpayment claim).
4 Second, Ms Geard claims the payment of Sunday penalty rates under cl 29.2B of the Award. She says no Sunday penalty rates were paid to her throughout the employment, although she worked Sundays in each week that she was employed (Sunday penalty claim).
5 Third, Ms Geard claims superannuation on the amounts claimed by way of the wage underpayment claim and the Sunday penalty claim under cl 27.2 of the award (superannuation claim).
6 While the company accepts that the Award applies to Ms Geard, it denies Ms Geard was employed at the Award’s Level 5. The company says that Ms Geard was not employed to perform the duties of a Level 5 classification and was, at all times, correctly classified as Level 3.
7 The company admits Ms Geard worked on 12 Sundays, attracting the Sunday penalty rate, but denies she worked every Sunday. During the hearing, Ms Geard agreed with the company’s list of Sundays when she did and did not work. Accordingly, Ms Geard agreed that her claim is limited to those 12 occasions, and the company agrees that it owes Ms Geard $1,125.38, plus superannuation for those dates. I calculated the superannuation component as $123.80.
8 The wage underpayment claim turns on two factual issues:
(a) whether Ms Geard had the appropriate level of training to be classified at Level 5; and
(b) whether Ms Geard had responsibility for supervision, training and coordination of front office employees.
9 Ms Geard has not established, on the balance of probabilities, the facts necessary to support the wage underpayment claim. That claim must therefore be dismissed. These are my reasons for so finding.
The Industrial Magistrates Court’s Jurisdiction
10 Under s 539 and s 540 of the FWA, an employee may apply to an eligible State or Territory court for orders in relation to a contravention of s 45 of the FWA, that is, the prohibition against a contravening a term of a modern award if the employee is affected by the contravention. Such application must be made within six years after the day the contravention occurred. Fair Work Act 2009 (Cth) (FWA) s 544.

11 The Industrial Magistrates Court of Western Australia is an eligible State or Territory court. FWA s 12 (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA) s 81, s 81B.
The Court may order that an employer pay an amount to an employee if the Court is satisfied that the employer was required to pay the amount under the FWA or a Fair Work instrument, and the employer has contravened a civil remedy provision by failing to pay the amount. FWA s 545(3).

12 Ms Geard is an employee affected by the alleged contravention of s 45 and the Award. The Award is a modern award under the FWA and is a Fair Work instrument. As the claimant, Ms Geard bears the onus of proving her claim on the balance of probabilities.
Background and Uncontentious Evidence
13 The company employed Ms Geard from 18 November 2023 until 26 November 2024, when she resigned. During the period of the employment, Ms Geard resided onsite in a room of the hotel with another person who also worked for the company.
14 Although Ms Geard suggested that she understood she was being employed for full-time employment, she and the company agree, for the purposes of these proceedings, that the employment was casual.
15 Mr Greg Wheeler is the company’s managing director. Ms Heidi Wheeler was the company’s front desk manager. Mr William Carter was formerly employed as the manager or building manager, and Mr Dan O’Sullivan was, from late March 2024, the building manager.
16 From the commencement of the employment until April 2024, Ms Geard was employed as a front office receptionist. The company paid Ms Geard $29.50 per hour. She worked under the supervision of another employee who, in turn, reported to Ms Wheeler.
17 From around 4 April 2024, following the departure of a staff member and the return of Mr O’Sullivan to the role of building manager, the company increased Ms Geard’s hourly rate to $31.50 per hour. This increase followed a meeting between Mr Wheeler and Ms Geard, during which Mr Wheeler told her he was happy with her work and proposed the pay increase, to which Ms Geard agreed. The agreement was not documented in a written employment contract.
18 Ms Geard’s hours during the time she was employed varied from 9.5 hours to 46.5 hours per week.
19 From November 2023 to 30 June 2024, the hourly casual rate of pay under the Award for a Level 3 – front office grade 2 was $31.09 and $43.52 with Sunday penalties. From November 2023 to 30 June 2024, the casual rate of pay under the Award for a Level 5 – front officer supervisor was $34.79 and $48.70 with Sunday penalties.
20 From 1 July 2023 to 26 November 2024, the hourly casual rate of pay under the Award for a Level 3 – front office grade 2 was $32.25 and $45.15 with Sunday penalties. From 1 July 2024 to 26 November 2024, the casual rate of pay under the Award for a Level 5 – front office supervisor was $36.09 and $50.52 with Sunday penalties.
What was Ms Geard’s correct classification between April and November 2024?
21 Clause 14 of the Award provides:
14. Classifications
An employer must classify an employee covered by this award in accordance with Schedule A – Classification Structure and Definitions
22 The relevant parts of Schedule A are set out below:
A.2.3 Guest services stream
…
(g) Front office grade 2 (wage level 3) means an employee who has the appropriate level of training and is in the front office engaged in performing duties including as a telephonist, receptionist or cashier, providing information services or making reservations.
(h) Front office grade 3 (wage level 4) means an employee who has the appropriate level of training and is in the front office engaged in duties including assisting in training and supervising front office employees of a lower classification.
(i) Front office supervisor (wage level 5) means an employee who has the appropriate level of training, including a supervisory course, and has responsibility for the supervision, training and co-ordination of front office employees.
23 As the classifications for each of the front office grades 2 through to supervisor refer to the employee having the ‘appropriate level of training’, it is necessary to also have regard to the definition of this phrase, which is in cl 2 of the Award:
2. Definitions
…
appropriate level of training in relation to an employee, other than a casino gaming employee, means that the employee:
(a) has completed an appropriate training program that meets the training and assessment requirements of a qualification or one or more appropriate units of competency forming part of a training package; or
(b) has been assessed by a qualified skills assessor as having skills at least equivalent to those attained in an appropriate training program; or
(c) as at 30 June 2010, had been doing the work of a particular classification for a period of at least 3 months.
24 In order for Ms Geard to succeed in her wage underpayment claim, the first thing she must demonstrate is that she has had the appropriate level of training, including a supervisory course. Ms Geard initially advanced her claim on the basis that she had a Diploma of Hospitality Business Management, which qualified as an appropriate level of training. She also, in the alternative, said that she had ample prior experience at Level 5.
25 I will deal first with the alternative claim based on experience. Experience does not count under the definition of ‘appropriate level of training’ unless paragraph (c) of the definition applies. Paragraph (c) is a transitional provision to ensure that any employee who was employed in a Level 5 position when the Award first came into effect is not worse off, provided that they had been in the classification for a period of at least three months. It applies at a point in time, that is, as at 30 June 2010.
26 According to Ms Geard’s résumé, as at 30 June 2010, Ms Geard was working as a receptionist at Great Eastern Motor Lodge. Exhibit C3 – Resume of Georgina Geard lodged 18 December 2025 (Originating Claim, 30-32); see also Exhibit R1 - Witness Statement of Greg Wheeler lodged 10 August 2025 Annexure GWC-05.
Ms Geard was not employed by the company at that point in time, so paragraph (c) does not apply.
27 Therefore, the only pathway for Ms Geard to succeed in her claim is for her to demonstrate that she had completed an appropriate training program that meets the training and assessment requirement of a qualification of one or more appropriate units of competency forming part of a training package.
28 To prove that she had completed a Diploma in Business Management Hospitality, Ms Geard relied on a copy of a document dated 20 November 2003, which is Exhibit C2. As I indicated during the hearing, there are several reasons to doubt the authenticity of this document: ts, 12 August 2026, 5.

(a) It refers to the ‘Palmerston Hospitality Collage [sic]’
(b) The signatory’s title and position is not stated.
(c) The document is inexplicably dated in two places.
(d) There is nothing on the document resembling a business logo.
(e) There is no reference in the document to the units of competency forming part of the qualification.
(f) There is no reference in the document to a course number or training package number.
(g) The seal on the document is blurry and indecipherable.
29 As to the spelling error identified in [28(a)] above, Ms Geard attached to her originating claim an email from her to Mr Wheeler dated 23 December 2024 in which she says that she had:
Done a hospitality business management diploma in 2003 at Palmerston Hospitality Collage [sic]. Exhibit R1 – Witness Statement of Greg Wheeler lodged 10 August 2025 Annexure GWC-05.

30 In the email, Ms Geard indicates that she had contacted the ‘collage’, who had sent information on how to obtain a copy of her certification, but it may take longer than 14 days for her to get it. She said she had also asked her mum if she has a copy and that her mum is having a look. Ms Geard commits the same spelling error in her email as then appears on the document that I have referred to.
31 Ms Geard’s résumé refers to Ms Geard having a:
Diploma of Hospitality Business Management from Palmerston Collage [sic]
Finished 2003
CIRT [sic] 3 – Diploma of Hospitality Buisness [sic] Management Exhibit C3 – Resume of Georgina Geard lodged 18 December 2025 (Originating Claim, 30-32)

32 Another curiosity arises from the résumé’s reference to ‘CIRT 3’. If this is intended to represent the qualification as a Certificate III, then under the Australian Qualifications Framework, the qualification is not the equivalent of a diploma.
33 No registered training organisation with a name including ‘Palmerston Hospitality’ is listed on the National Training Register, either as current, non-current, cancelled or withdrawn, although Charles Darwin University has a Palmerston campus.
34 I advised Ms Geard that I suspected Exhibit C2 was a forgery. She denied this. She said the original was given to her by a manager whose name she could not recall, who worked for the employer she was working for at the time that she completed the course. She also said that she received a different document with course details and grades directly from the training provider. She said her parents have the original of the other document. ts, 12 August 2026, 15.
I find it difficult to accept her account as to why her manager would provide Exhibit C2 when another document was issued by the training provider. If the training provider supplied course documentation, there is no reason for her manager to have produced Exhibit C2.
35 It is unnecessary for me to make any finding as to whether or not Ms Geard has forged Exhibit C2 or, for that matter, misrepresented her qualifications in her résumé. The deficiencies in Exhibit C2 and the absence of other credible evidence mean that I am not satisfied that Ms Geard completed an appropriate training program meeting the Award’s requirements.
36 I reject Exhibit C2 as being reliable evidence of Ms Geard having completed recognised training or a qualification in hospitality business management. There was no other evidence before me which was capable of satisfying me that Ms Geard had the appropriate training.
37 This is fatal to the wage underpayment claim, which can be dismissed on this basis alone.
38 However, even if Ms Geard had completed appropriate training, the evidence does not establish that she had responsibility for the supervision, training and coordination of front office employees either. In this regard, in her originating claim, Ms Geard says:
2. Acting Managerial Duties: The Complainant was frequently left to manage the front office during the absence of the official manager on three separate occasions:
· When the Manager left without notice.
· When the Manager needed to attend rehabilitation.
· Pending the arrival of a replacement Manager.
3. Duration of Managerial Duties: The Complainant estimates having performed acting managerial duties for approximately eight weeks in total. The Complainant asserts that their ability to successfully fill in for the Manager contradicts the claim of being unqualified for the position. (my emphasis) Exhibit R1 – Witness Statement of Greg Wheeler lodged 10 August 2025 Annexure GWC-05.

39 Ms Geard herself uses, ‘acting’, ‘separate occasions’, ‘during the absence’, and a duration of ‘approximately eight weeks in total’.
40 The performance of higher duties on a temporary or occasional basis does not, of itself, determine an employee’s substantive classification. Indeed, it reinforces that Ms Geard’s position was classified at the lower level and that other people had the substantive responsibilities for the duties that would have formed part of a higher classification.
41 The evidence overwhelmingly demonstrates that others did have responsibility for supervision, training and coordination of front office employees, namely Ms Wheeler and Mr O’Sullivan. Ms Geard did not challenge Ms Wheeler’s evidence to the effect that, whether Ms Wheeler was onsite or not, she was in constant communication with the front desk and supervised reception activities, namely, guest check-ins, payments, housekeeping allocations, supply requirements and guest services, that she trains new and established staff, that she checks and oversees cash handling and supply orders, bank account reconciliations and so on.
42 While Ms Geard accepted that Ms Wheeler had these responsibilities and fulfilled them both onsite and remotely, she appeared to view remote supervision or anything less than having a continual physical presence as negating supervision. This was a mistaken view.
43 Ms Geard emphasised that Ms Wheeler could not do everything remotely, that she could not cut guests’ keys, for example, or handle cash. Ms Wheeler readily accepted that to be the case. This concession does not advance Ms Geard’s case. The handling of cash and cutting of keys are not Level 5 duties.
44 Mr O’Sullivan’s unchallenged evidence was that Ms Geard did not have responsibility for managing shift operations, staff training, or front desk coordination, as he and Ms Wheeler had those responsibilities. Mr O’Sullivan and Ms Wheeler were in daily contact around things like staffing hours. Mr O’Sullivan ensured that staff signed on and off their timesheets, created front desk staff standard operating procedure, checked the front desk quotas, managed the front desk time-off and holiday requests, checked front desk staff timesheets and monitored front desk for adherence to standard operating procedures. Ms Wheeler received the daily reports from front office staff on reception diaries, daily transaction reports, the cash book and so on. Exhibit R4 – Witness Statement of Dan O’Sullivan lodged 7 August 2026.

45 In her evidence-in-chief, Ms Geard’s case appeared to change, as she stated that her ‘daily duties’ as Front Office Manager included:
· [responsibilities for] supervising, coordinating and training junior reception staff;
· handling cash reconciliations, financial reports, and administrative systems;
· managing venue security and responding to 24/7 guest emergencies; and
· exercising total operational autonomy onsite. Exhibit C1 – Witness Statement of Georgina Gaye Geard lodged 30 July 2026 and annexure GG-3.

46 The evidence did not establish that Ms Geard had responsibility for all those things. The highest the evidence went was that Ms Geard assisted in the training of other staff, dealt with guest emergencies out of hours, and handled cash.
47 In her oral evidence Ms Geard suggested that there was an express oral agreement that she was promoted to the position of Front Office Manager. This was the first time in the course of the proceedings that her case was put on the basis of an express oral agreement.
48 In cross-examination, she asserted that this agreement was made with Mr O’Sullivan, but she gave no account herself of the discussion or conversation said to constitute the agreement. ts, 12 August 2026, 16 – 39
Ms Geard did not provide the Court with her version of any conversation with Mr O’Sullivan. Instead, Ms Geard tried to elicit evidence from Mr O’Sullivan in crossexamination, asking him whether he gave her the title of Front Office Manager. Mr O’Sullivan denied this.
49 He gave an account of returning to the hotel in late March or early April 2024, finding the front desk was not running the way he would like it to, and telling Ms Geard that he wanted her to be his single point of contact for the front desk. He was firm in his denial of conferring or agreeing to any form of promotion or change to Ms Geard’s responsibilities and duties or to her title, noting that he was not authorised to do so, nor did he have any authority in relation to or knowledge of Ms Geard’s pay arrangements. ts 12, August 2026, 74 -82.
I found Mr O’Sullivan’s evidence to be clear, internally consistent and reliable, and I accept it.
50 Ms Geard relied on evidence from a number of coworkers and people involved in the Perth City Apartment Hotel who observed Ms Geard’s work. They confirm that Ms Geard resided at the hotel and was observed to attend to property matters outside of normal business hours.
51 Mr Eddie Kamil said that, during normal business hours, Ms Geard was stationed at the front reception desk performing supervisory, administrative and operational duties. Mr Kamil said that when the hotel’s designated manager was absent, Ms Geard appeared to be the person responsible for the day-to-day operation of the hotel and the primary point of authorisation at reception. Mr Kamill rarely observed Ms Wheeler personally working regular reception or front desk shifts, and he said that Ms Wheeler spent considerable periods of time travelling. Exhibit C6 – Witness Statement of Eddie Kamil lodged 30 July 2026.
However, Ms Wheeler’s physical presence at reception is not proof that she was or was not working as the office manager and the reception supervisor.
52 Ms Leonarda Nancy Withers’ evidence was that Ms Geard provided direct training, guidance and support to herself, allocated daily tasks, managed reception handovers, oversaw the front desk workload and was the primary point of escalation and contact for issues that arose with guests. Ms Withers’ evidence in this regard was not challenged, nor was she challenged on her evidence that someone she described as ‘management’, but did not identify, had informed her that Ms Geard’s title will be office manager, and that she was to report to Ms Geard as her supervisor. Exhibit C4 – Witness Statement of Leonarda Catharina Alinda Winders (name amended) lodged 30 July 2026.

53 I accept her unchallenged evidence, but it does not prove that there was an agreement between Ms Geard and the company that Ms Geard’s title was to change. I note, incidentally, that the title Ms Withers described is different to the title Ms Geard put to Mr O’Sullivan.
54 In any event, Ms Withers’ evidence does tend to prove something about the scope of Ms Geard’s role, responsibilities and the reporting relationships. Ms Withers also confirmed that Ms Geard worked closely with management, and she confirmed that Ms Geard reported to any of Mr Carter, Mr O’Sullivan, Mr Wheeler and Mrs Wheeler. While Ms Withers’ evidence is relevant to and elucidating in respect of Ms Geard’s duties, it did not go so far as to satisfy me that those duties were such that Ms Geard had responsibility for supervision.
55 Ms Sanela Muzaferovic was a cleaner at the apartments. Her unchallenged evidence was that she saw Ms Geard as the primary individual responsible for running the hotel front desk during daytime business hours. According to Ms Muzaferovic, Ms Geard performed administrative and ‘supervisor-level duties’ independently. Exhibit C5 – Witness Statement of Sanela Muzaferovic lodged 30 July 2026.
Her evidence in relation to performing supervisor-level duties was effectively the expression of an opinion which, in the absence of a factual basis, I cannot act upon.
56 Although several of the witnesses refer to Ms Geard as performing ‘supervisory duties’, there was little substance in the evidence that provided a picture of what that meant or how she had supervisory responsibilities. There was no suggestion that she rostered staff, checked timesheets, checked that other staff were complying with the operating procedures, or dealt with staff leave requests. The unchallenged evidence was that Mr O’Sullivan did all these things at the relevant time.
57 I accept that other staff reported to Ms Geard and that she was a primary point of contact for front office when she was working. However, this falls short of establishing that she had responsibility for coordinating the front office employees or supervisory responsibilities as that is commonly understood. Ms Geard has not satisfied me that her position should be substantively classified at Level 5 and has failed to prove her wage underpayment claim.
Conclusion and Disposition
58 For these reasons, I am not satisfied that Ms Geard’s position was properly classified as Level 5 under the Award. The evidence establishes that she performed work consistent with a Level 3 - front office employee and that the supervisory and coordination responsibilities required for Level 5 remained vested in other employees.
59 The parties ultimately agree that Ms Geard worked on 12 Sundays during her employment and was not paid the applicable Sunday penalty rate. She is therefore entitled to payment of those penalties, together with the associated superannuation entitlement.
60 I am satisfied that the company was required to pay Ms Geard a total of $1,249.18 under the Award for Sunday penalty rates, and contravened s 45 of the FWA by failing to do so. I will order payment of that amount to Ms Geard pursuant to s 545(3) of the FWA.
Costs Application
61 Ms Geard sought an order for payment of her court costs ‘because they underpaid me and I had to come to court’. The respondent did not oppose the application. ts, 13 August 2026, 104 – 105.

62 I decline to make an order for costs, notwithstanding the fact that the company did not oppose the order being made.
63 Ms Geard advanced claims that substantially exceeded what reasonably could have been supported by the evidence that was available to her.
64 Ms Geard put in issue matters that ought never have been pursued, which caused the respondent and the Court to have to deal with those matters unnecessarily. For example, Ms Geard claimed penalty rates for every Sunday in the period that she was employed, and only conceded that she did not, in fact, work every Sunday, during the hearing.
65 Ms Geard also filed a witness statement which she had written for an intended witness, knowing that the witness had not adopted or agreed to the contents of the witness statement. While Ms Geard ultimately did not rely on that witness statement, the filing of the witness statement meant that the respondent was required to deal with and respond to it. The witness was also unnecessarily inconvenienced.
66 Ms Geard’s conduct was inconsistent with a party’s obligation to responsibly, reasonably and efficiently conduct themselves in proceedings. This weighs against the exercise of the discretion to award costs under s 548(10) of the FWA.




R. COSENTINO
INDUSTRIAL MAGISTRATE