2026 WAIRC 00930
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00930



CORAM
:
INDUSTRIAL MAGISTRATE R. COSENTINO



HEARD
:
WEDNESDAY, 19 AUGUST 2026



DELIVERED
:
WEDNESDAY, 14 OCTOBER 2026



FILE NO.
:
M 40 OF 2026



BETWEEN
:
ISABEL JAI MENZIES


CLAIMANT





AND





CARDAV GROUP PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – Alleged contraventions of s00A045 of the Fair Work Act 2009 (Cth) – Small Claim – Hair and Beauty Industry Award 2020 – apprenticeship – public holidays – whether training days are days worked for the purpose of public holiday entitlements – claim for underpayment for hours worked treated as unpaid meal breaks – whether employer liable to make payment in lieu of notice where employee resigned and gave notice – whether employer liable to reimburse TAFE fees – claims upheld in part
Legislation : Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Vocational Education and Training (General) Regulations 2009 (WA)
Public and Bank Holidays Act 1972 (WA)
Instrument : Hair and Beauty Industry Award 2020
Cases referred
to in reasons: : Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165
Seo v Bindaree Food Group Pty Ltd [2021] FWCFB 2691; (2021) 306 IR 408
Minister for Police v WA Police Force Union of Workers (1969) 49 WAIG 993
Hospital Employees’ Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455
Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 116 FCR 58
Australian Salaried Medical Officers’ Federation v Peninsula Health [2023] FCA 939; (2023) 325 IR 26
Moore v Bytewise Pty Ltd [2026] FWCFB 217
Terex Australia Pty Ltd v Cameron [2025] FWCFB 205
Result : Claim upheld in part
Representation:
Claimant : In person
Respondent : Mr D. Lee (director)



REASONS FOR DECISION
1 The claimant, Ms Isabel Menzies, was employed by the respondent, Cardav Group Pty Ltd (the Company) as an apprentice hairdresser from 11 February 2024 until she resigned on 29 August 2025.
2 Ms Menzies commenced this claim seeking payment of $9,992.12 for the Company’s alleged contraventions of the Hair and Beauty Industry Award 2020. She has 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 six components to Ms Menzies’ claim:
a. that she was not paid for four public holidays (Public Holiday Claim).
b. that she was not paid for all hours she was rostered to work, because deductions were made for paid breaks (Time Deducted Claim).
c. payment for Saturday meal breaks which she says she worked through (Meal Breaks Claim).
d. payment for time not worked, and unpaid, because she was sent home from work before the rostered finish time (Hours Shortfall Claim)
e. two-weeks’ pay in lieu of notice of termination (Termination Pay Claim)
f. payment for TAFE fees (TAFE Fees Claim).
4 The Company accepts that the Award applies to Ms Menzies. It denies it has underpaid her. In relation to the Public Holiday Claim, it says that Mondays were not a day that Ms Menzies was ordinarily rostered to work, as the salon was closed on those days. It therefore does not consider Ms Menzies was entitled to be paid for public holidays that fell on a Monday, unless she was attending TAFE. It says it otherwise paid her for all public holidays that fell on days that Ms Menzies would have worked.
5 In relation to the Meal Breaks Claim, the Company says Ms Menzies was able to, and did, take her meal breaks and so is not entitled to any further payment. In relation to the Time Deducted Claim and Hours Shortfall Claim, the Company says that when Ms Menzies was not paid in full for all her ordinary hours, it was because she had requested, and the Company had permitted her, to take unpaid leave.
6 As to the Termination Pay Claim, the Company says Ms Menzies resigned without giving notice, so that it is not obliged to pay notice in lieu.
7 Finally, in relation to the TAFE Fees Claim, the Company says that it was not provided with a claim for, or proof of payment of, Ms Menzies’ TAFE fees paid during the employment and in any event, it was not satisfied as to Ms Menzies’ progress so as to entitle her to reimbursement of TAFE fees.
The Industrial Magistrates Court’s Jurisdiction
8 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 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.

9 The Industrial Magistrates Court of Western Australia (IMC) is ‘an eligible State or Territory court’. FWA s 12; Industrial Relations Act 1979 (WA) s 81, s 81B.

10 The IMC may order that an employer pay an amount to an employee if the IMC is satisfied 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).

11 Ms Menzies is an employee affected by the alleged contraventions of s 45 and the Award. The Award is a modern award under the FWA and is a ‘fair work instrument’. Section 45 is a civil penalty provision.
12 As the claimant, Ms Menzies, bears the onus of proving each of her claims on the balance of probabilities.
Evidence
13 Ms Menzies lodged witness statements for her current employer, her grandmother and someone with whom she is or was in a romantic relationship during her employment with the Company. I disallowed these witnesses to give evidence, because their evidence was not relevant, or of only marginal relevance, to the issues to be decided by me, and contained inadmissible opinions and speculation.
The Claimant
14 Ms Menzies gave evidence by way of a written witness statement. Substantial parts of her written witness statement were submissions, assertions, responses to matters raised in the Company’s Response and references to the Award, rather than evidence of relevant facts.
15 Much of the witness statement is Ms Menzies’ explanations of the process she undertook, and the documents she referred to, in calculating her claimed unpaid entitlements. These calculations changed a number of times after the Originating Claim was lodged, with the most recent version provided on the day of the hearing. Exhibit C2 – Amended Supporting Document – Attachment A – (2024 and 2025 Payslip Reconciliation)

16 To the extent that the witness statement dealt with facts, Ms Menzies was not cross-examined or challenged on it.
17 I have set out Ms Menzies’ evidence of the facts relevant to the six individual claims below under the individual claim headings.
18 Ms Menzies’ evidence of the background matters relevant to the issues in these proceedings, was:
a. That she commenced employment with the Company on 11 February 2024;
b. Her rostered hours varied depending on whether she had TAFE or not.
c. When she did not have TAFE, her rostered hours were 10:00 am to 9:00 pm on Wednesdays and Thursdays, 10:00 am to 5:30 pm on Fridays and 8:15 am to 5:00 pm on Saturdays.
d. When she did have TAFE, she attended TAFE on Monday from 8:30 am to 4:00 pm,
e. She did not attend TAFE on public holidays.
f. On Wednesday 27 August 2025 she asked the Company’s director, David Lee, about her pay as she considered she had been underpaid. He said that this must have been due to a computer error. He showed her a spreadsheet on his computer screen, which was his record of her usual weekly and fortnightly hours. She noted that it showed 1.5 hours of unpaid breaks on Wednesdays and Thursdays. She took a screenshot of the screen, with Mr Lee’s permission: Exhibit C3 – Witness Statement of Isabel Menzies dated 1 June 2026 – Attachment C

19 In answer to my questions during the hearing, Ms Menzies said that that there was a written training contract between her and the Company. This was not produced to the Court.
Esther De Salis
20 Ms Menzies relied on a written witness statement of a former co-worker, Esther De Salis. Ms De Salis worked for the Company from 11 February 2024 until 12 August 2025. Ms De Salis states:
5. On Saturdays, we were rostered to attend to clients throughout the day, as clients could book appointments at any time. We were instructed to eat lunch in the back area of the salon while remaining available for work and then return to the salon floor immediately. We were not provided with a onehour lunch break during which we were free to leave the premises. Despite this, one hour was deducted from our Saturday hours for a lunch break.
6. When there were no clients booked on some afternoons, staff were commonly directed to finish work early and leave the salon. This occurred, on average, approximately once or twice per week. Exhibit C9 – Witness Statement of Esther Fane De Salis dated 31 May 2026.

21 Ms De Salis was not cross-examined or challenged on her evidence.
Paxton Wilkinson
22 Ms Menzies relied on evidence by a written witness statement of a former co-worker, Paxton Wilkinson. Ms Wilkinson worked for the Company for around nine and a half weeks from 15 January 2025 to 23 March 2025. Ms Wilkinson states:
4. On Saturdays, staff were rostered to attend to clients throughout the entire trading day. Staff were not provided with a formal uninterrupted one-hour meal break during which they were free to leave the premises. Instead, staff were generally expected to quickly eat lunch in the back area of the salon, often food prepared by the employers, Dave and Carmel, and then immediately return to the salon floor to continue servicing clients. Clients were able to and did book appointments throughout lunch periods.
5. There were occasions where staff were directed to leave work early when there were no clients booked for the afternoon and/or evening. From my recollection, this occurred approximately at least once per week, if not on both late-night trading shifts. It was my understanding that these reduced hours were deducted from staff pay. Exhibit C13 – Witness Statement of Paxton Wilkinson dated 25 May 2026.

23 In crossexamination, Ms Wilkinson confirmed that her observations were confined to the period she was employed. ts 26.

Jason Menzies
24 Jason Menzies is Ms Menzies’ father. His evidence, by written witness statement, was that he and Ms Menzies’ mother convinced Ms Menzies to resign from her employment with the Company. He had lunch with her on the day that she resigned, 29 August 2025. During lunch, Ms Menzies told her that she was going back to the salon to resign and give her two weeks’ notice. He said he was confused about why she was giving two weeks’ notice before leaving. He asked her ‘why she wasn’t just quitting and getting out of there straight away’. Her response was that she did not want to leave the Company ‘in the lurch.’ Exhibit C10 – Witness Statement of Jason Menzies dated 30 May 2026 [6].

25 Mr Menzies provided screen shots of his messages exchanged with Ms Menzies on 29 August 2025. Exhibit C10 – Witness Statement of Jason Menzies dated 30 May 2026 with Annexure A

Nicole Menzies
26 Nicole Menzies is Ms Menzies’ mother. She gave evidence, by a written witness statement, about a telephone discussion she had with Mr Lee about the payment of TAFE fees. Exhibit C11 – Witness Statement of Nicole Menzies dated 26 May 2026.
Her evidence about this was not challenged in cross-examination, although in his evidence, Mr Lee gave a different version of the conversation.
Chloe Menzies
27 Chloe Menzies is Ms Menzies’ sister. Her evidence, by her written witness statement, dealt with Ms Menzies’ out-of-work commitments, and whether those commitments were likely to have required her to take time off from her work with the Company. Exhibit C12 – Witness Statement of Chloe Menzies dated 29 May 2026.
Her evidence was not challenged.
David Lee
28 The Company’s evidenceinchief was comprised of Mr David Lee’s written witness statement.
29 Mr Lee and his wife Carmel Lee own the Company.
30 Mr Lee’s evidence about Ms Menzies’ hours of work was consistent with Ms Menzies’ evidence.
31 The salon is closed on Sunday, Monday and Tuesday.
32 Mr Lee said that Ms Menzies was provided lunch breaks throughout her employment, having access to the staff area and nearby shops. On Saturdays, meals were provided by the Company, and sometimes Ms Menzies brought food from her second job at a pizza restaurant to share amongst the staff. He said that one meal break was provided per shift and was taken by Ms Menzies at her discretion either in the staff room, or outside the salon. Exhibit R1 – Witness Statement of Dave Lee dated 15 June 2026 with Annexures.

33 Mr Lee emphasised that Ms Menzies did not ever raise any complaints or concerns about her pay until two days prior to her resignation.
34 In crossexamination by Ms Menzies, Mr Lee conceded that he was not always present at the salon and could not state that he observed Ms Menzies taking a full lunch break on every shift she worked.
35 In cross-examination, Mr Lee conceded that the Company was inconsistent in its provision of payslips to Ms Menzies. He accepted that of 41 fortnights of employment, payslips were only given to Ms Menzies on 18 occasions, that he may have forgotten to send payslips some weeks, sent her incorrect payslips some weeks, or sent her payslips to the wrong email address in error. Exhibit C15 – Table of Payslips.

36 Mr Lee said that he undertook a thorough review of payroll records for Ms Menzies with the Company’s bookkeeper. This review identified an underpayment of 5.5 hours but it also identified an overpayment of 33.5 hours, because a week of annual leave that was taken in the second week of the fortnight ending 19 April 2025 was paid as ordinary pay, and accrued annual leave was paid out at the end of the employment. This resulted in an overpayment of $541.78.
37 Mr Lee said that the Company did its best to accommodate Ms Menzies’ various requests to take time off work. In crossexamination he said that he and Carmel Lee were not ‘clock watches.’ They had a flexible approach and would grant Ms Menzies an hour or so off work every now and again for her to take driving lessons, leave work early to coach a basketball game, and such. If she was unwell and left twenty minutes early, that was not recorded anywhere and was not deducted from her pay. But if she was unwell for a day, it was paid as sick leave. If she wanted an hour or more for other purposes, it was recorded as ‘unpaid leave.’ ts 33  104.

What were Ms Menzies’ Hours of Work?
38 Under the Award, a full-time employee is an employee who is engaged to work an average of 38 ordinary hours per week over a period of no more than 4 weeks. Hair and Beauty Industry Award 2020 cl 9.
A part-time employee is one who works less than 38 ordinary hours per week, and has reasonably predictable hours of work. Hair and Beauty Industry Award 2020 cl 10.1.

39 Both parties referred to Ms Menzies as a full-time employee. The payslips that are in evidence also refer to Ms Menzies as a full-time employee. However, both parties also agreed that Ms Menzies ordinary rostered hours at work were– Exhibit C1 – Witness Statement of Isabel Menzies dated 24/6/ June 2026; Exhibit R1 – Witness Statement of David David Lee dated 15/6/ June 2026 with Annexures.

In 2024:
Wednesday: 10:00 am – 9:00 pm with a one hour unpaid meal break (10 hours)
Thursday: 10:00 am – 9:00 pm with a one hour unpaid meal break (10 hours)
Friday: 10:00 am – 5:30 pm with a one hour unpaid meal break (6.5 hours)
Saturday: 8:15 am – 5:00 pm with a one hour unpaid meal break (7.75 hours)
Total = 34.25 hours
In 2025 outside TAFE Semesters:
Wednesday: 10:00 am – 9:00 pm with a one hour unpaid meal break (10 hours)
Thursday: 10:00 am – 9:00 pm with a one hour unpaid meal break (10 hours)
Friday: 10:00 am – 5:00 pm with a one hour unpaid meal break (6 hours)
Saturday: 8:15 am – 5:00 pm with a one hour unpaid meal break (7.75 hours)
Total = 33.75 hours
In 2025 during TAFE semesters until 23 March 2025:
Wednesday: 10:00 am – 9:00 pm with a one hour unpaid meal break (10 hours)
Thursday: 2:30 pm – 9:00 pm with a one hour unpaid meal break (5.5 hours)
Friday: 10:00 am – 5:30 pm with a one hour unpaid meal break (6.5 hours)
Saturday: 8:15 am – 5:00 pm with a one hour unpaid meal break (7.75 hours)
Total = 29.75 hours
In 2025 from 23 March 2025 onwards:
Wednesday: 10:00 am – 9:00 pm with a one hour unpaid meal break (10 hours)
Thursday: 10:00 am – 9:00 pm with a one hour unpaid meal break (10 hours)
Friday: 10:00 am – 5:30 pm with a one hour unpaid meal break (6.5 hours)
Saturday: 8:15 am – 5:00 pm with a one hour unpaid meal break (7.75 hours)
Total = 34.25 hours
40 During TAFE semesters Ms Menzies attended TAFE on Mondays. When Ms Menzies attended TAFE, she attended from 8:30 am to 4:00 pm on Mondays, with a one hour break.
41 According to Mr Lee’s unchallenged evidence, Ms Menzies had the option of maintaining the same work hours during TAFE semesters or reducing her hours. In 2025, prior to 23 March, she elected to reduce her hours, explaining why her hours on Thursdays were fewer during that period.
42 It was not in dispute that Ms Menzies was entitled to be paid for 6.5 hours on the days she attended at TAFE. This is consistent with cl 12.5(b) of the Award which says:
Subject to Schedule E—School-based Apprentices, time spent by an apprentice in attending training or any assessment in accordance with their training agreement is to be regarded as time worked for the employer for the purpose of calculating the apprentice’s wages and determining the apprentice’s employment conditions. (emphasis added)
43 This means that, whilst Ms Menzies was spending time at TAFE, she was entitled to wages for that time.
44 Although the parties labelled the employment as full-time, that description does not mean that the employment was, as a matter of law, full-time. The legal character of the relationship must be determined by the rights and obligations established by their contract. As Kiefel CJ, Keane and Edelman JJ said in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, [2022] HCA 1; (2022) 275 CLR 165 [63] - [66].
the opinion of the parties on a matter of law is irrelevant. While the descriptive language chosen by the parties can shed light on the objective understanding of the operative provisions of their contract, their description of the status or relationship will rarely assist a court to determine the rights and duties under the contract.
45 To my knowledge there is no prohibition on an apprentice being engaged on a part-time basis. The Schedule 1 Training contract in the Vocational Education and Training (General) Regulations 2009 (WA), at question 39, requires the contract to expressly specify the number of hours of work and training per week.
46 In relation to question 39, the Schedule 1 Training contract’s notes state:
Apprenticeships/traineeships may be undertaken full‑time or part‑time. A full‑time apprentice/trainee is one whose ordinary hours of employment, including the training component, are not less than the usual hours of employment for a full‑time employee in that occupation. Part‑time provisions vary across Australia and across occupations. For more information contact an Australian Apprenticeships Centre in your region or State/Territory Training Authority. See the Contacts for Further Information and Assistance section for further contact details. (emphasis added)
47 Despite the parties’ labelling the employment as full-time, the evidence is that they agreed to hours of work, including the training component, that are less than 38 hours per week for much of the time that Ms Menzies was employed.
48 Under the Award’s definitions, Ms Menzies would not be categorised as a fulltime employee throughout the employment, as her rostered hours of work averaged over 4 weeks was not an average of 38 hours.
49 The Company contended that Ms Menzies weekly roster involved her working 66.5 hours a fortnight, or 33.25 hours a week. In computing these hours, Mr Lee counted 9.5 hours on Wednesday and Thursdays, when Ms Menzies worked from 10:00 am until 9:00 pm. Rather than deducting one hour for an unpaid meal break, he deducted 1.5 hours. At the hearing of this matter, Mr Lee suggested, for the first time, that one hour was allowed for lunch around midday and a further break of half an hour was allowed in the evening. However, he did not put to Ms Menzies any suggestion that she took a second break on these days. Aside from asserting that there was the ability to take a second break, the Company led no evidence that was capable of establishing that Ms Menzies in fact took 1.5 hours of breaks on any particular day.
50 For fulltime, parttime and casual employees, cl 16.1 of the Award provides for one unpaid meal break of between 45 minutes to 60 minutes after five hours of work. As it is agreed that a lunch break was allowed to Ms Menzies of 60 minutes, she was only entitled to one meal break in an 11-hour shift. There was no entitlement to a second unpaid meal break.
51 Accordingly, Ms Menzies ordinary hours of work were as specified in paragraph [40] above, plus a further 6.5 hours in the weeks she attended TAFE. This is represented in the following table:
Period
Number of weeks (approx.)
Rostered hours of work
Training Hours
Total hours regarded as ‘time worked’
11 February 2024 – 20 July 2024
23
34.25
Nil
34.25
21 July 2024 – 21 September 2024
9
34.25
6.5
40.75
22 September 2024 – 6 October 2024
2
34.25
Nil
34.25
7 October 2024 – 18 December 2024
11
34.25
6.5
40.75
19 December 2024 – 8 February 2025
7
34.25
Nil
34.25
9 February 2025 – 22 March 2025
6
29.75
6.5
36.25
23 March 2025 – 11 April 2025
3
34.25
6.5
40.75
12 April 2025 – 27 April 2025
2
34.25
Nil
34.25
28 April 2025 – 28 June 2025
9
34.25
6.5
40.75
29 June 2025 – 26 July 2025
4
34.25
Nil
34.25
27 July 2025 – 29 August 2025
4.5
34.25
6.5
40.75
Total
80.5



52 Ms Menzies was entitled to be paid for the number of hours listed in the table during the weeks listed, unless she was absent from work on leave without pay or an unauthorised absence.
Public Holiday Claim
53 Clause 29.1 of the Award says that public holiday entitlements are provided for in the National Employment Standards (NES).
54 The relevant NES is s 116 of the FWA. It says:
116 Payment for absence of public holiday
If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day.
Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs
55 In relation to the public holidays claim, Mr Lee’s evidence was:
a. TAFE did not conduct classes on public holidays; and
b. If a public holiday fell on a Monday, the Company did not pay Ms Menzies for that day, as it was not an ordinary working day.
c. The Company otherwise paid Ms Menzies for all other public holidays that fell on Wednesday, Thursday, Friday or Saturday even if the day was not worked. He relied on payslips issued to Ms Menzies to establish this.
56 There are four public holidays that Ms Menzies claims she was entitled to be paid for, but was not paid:
57 Labour Day Monday 3 March 2025: The Monday on or first Monday following 1 March in each year is declared to be the Labour Day public holiday under the Second Schedule of the Public and Bank Holidays Act 1972 (WA). It is therefore a public holiday for the purpose of s 115(1)(b) of the FWA.
58 In 2025, the Labour Day public holiday was Monday 3 March 2025.
59 Ms Menzies agrees that she was not rostered to work this day, nor did she attend TAFE.
60 As discussed at [43] above, under cl 12.5(b) of the Award, time spent training is to be regarded as time worked for the employer for the purpose of calculating the apprentice’s wages and determining the apprentice’s employment conditions. However, that clause does not have the effect of deeming time spent training as ordinary hours of work. Ms Menzies’ ordinary hours of work did not include any hours of working on Mondays. Accordingly, she was not entitled to payment for this public holiday.
61 Good Friday 18 April 2025 – Good Friday is a public holiday listed in s 115(1)(a) of the FWA. Fridays were part of Ms Menzies ordinary hours of work. It is not suggested that Ms Menzies worked on this day.
62 According to the payslip for the period from 6 April 2025 to 19 April 2025, Ms Menzies was paid for a total of 76 hours of work: Exhibit R1 – Witness Statement of Dave Lee dated 15 June 2026 with Annexures, 43.


63 The payslip makes no mention of public holidays or leave. Ms Menzies was not attending training in this period. Her ordinary hours of work were 34.25 hours per week. It appears that Ms Menzies was overpaid by 7.5 hours in this fortnight. She is not entitled to any additional payment for Good Friday.
64 Anzac Day Friday 25 April 2025 – 25 April (Anzac Day) is a day listed as a public holiday in s 115(1)(a) of the FWA. In 2025, 25 April was a Friday. Fridays were part of Ms Menzies ordinary hours of work. Ms Menzies did not attend work on this day.
65 According to the payslip produced for the relevant pay period, Ms Menzies was paid for a total of 66.5 hours for the fortnight and a further 6.5 hours is recorded as unpaid leave: Exhibit R1 – Witness Statement of Dave Lee dated 15 June 2026 with Annexures, 44.
A total of 73 hours are accounted for:

66 Easter Monday fell on 21 April 2025 and there was no TAFE on that day. However, in the ordinary course of events, Ms Menzies would have attended TAFE on Monday 28 April 2025. Had Ms Menzies attended work for all of her ordinary hours of work and attended one day of TAFE in the fortnight, she would have been entitled to be paid for 34.25 for the first week, and 40.75 hours for the second week being 75 hours in total.
67 Mr Lee’s evidence was that when the payslip refers to ‘unpaid leave,’ that is because Ms Menzies had sought permission to be absent from work for short periods for specific purposes to which the Company agreed. Mr Lee gave attending a driving lesson, or a medical appointment as examples. The payslips in evidence contain several instances of unpaid leave being recorded for periods of 1 to 3.5 hours, consistent with this explanation. However, in this instance, the unpaid leave is 6.5 hours. This is not consistent with a short absence of the type Mr Lee gave evidence about. Mr Lee did not identify which day or days the 6.5 hours of unpaid leave related to. He did not give an account of Ms Menzies seeking to take leave of 6.5 hours. He did not put to Ms Menzies by way of crossexamination that she took 6.5 hours off work in this pay period.
68 It is apparent on the face of the payslip for this pay period that Ms Menzies had annual leave accrued. Had she sought to be absent from work for 6.5 hours in a single block, it would ordinarily have been taken as annual leave.
69 I doubt that it is coincidental that the hours Ms Menzies would ordinarily have worked on a Friday at that time was also 6.5 hours.
70 I therefore infer that the 6.5 hours recorded in the payslip as unpaid leave relates to the public holiday. I further infer that Ms Menzies worked her ordinary hours in this pay period, other than the public holiday. The result is that she has been underpaid for this pay period.
71 Ms Menzies is entitled to be paid 6.5 hours as ordinary time for the Anzac Day public holiday. This equates to $114.79.
72 WA Day Monday 2 June 2025: for the same reasons that Ms Menzies was not entitled to be paid for the Labour Day public holiday, she is not entitled to payment for the WA Day public holiday.
Time Deducted Claim
73 As noted at paragraphs [49] to [50] above, Mr Lee counted 1.5 hours as an unpaid meal break on each day that Ms Menzies was rostered to work from 10:00 am to 9:00 pm. There was no legal or factual basis to do so. Accordingly, Ms Menzies has been underpaid either 0.5 hours or one hour for each week that she worked, depending on whether she worked one or two 11hour shifts. Her ordinary hours have been understated by the same amount for leave accrual purposes.
74 Clause 18.1 of the Award requires an employer to pay an apprentice the minimum hourly rates of pay for all time worked. The company has failed to pay Ms Menzies for all time she worked. By my calculations, a total of 67.5 hours was not paid, resulting in an underpayment of $1,072.28 as follows:
a. From 11 February 2024 to 29 June 2024: 20 hours at $14.40 per hour = $288.00
b. From 30 June 2024 to 8 February 2025: 22 hours at $14.94 per hour = $328.68
c. From 9 February 2025 to 28 June 2025: 17 hours at $17.66 per hour = $300.22
d. From 29 June 2025 to 29 August 2025: 8.5 hours at $18.28 per hour = $155.38
Meal Breaks Claim
75 It is not in dispute that cl 16.1 of the Award entitles employees to an unpaid meal break of between 45 and 60 minutes after 5 hours of work. Clause 16.1 says:
16.1 Employees are entitled to meal and rest breaks in the following circumstances:
Table 3 – Entitlements to meal and rest breaks
Type of break
Length of break (Monday to Sunday inclusive)
Unpaid meal break
Full-time, part-time and casual employees – after 5 hours of work
One unpaid meal break of between 45 and 60 minutes

The meal break can be shortened to 30 minutes by agreement between the employee and employer
Type of break
Length of break (Monday to Sunday inclusive)
Paid Rest Break
Full-time employees – per shift
Two 10-minute paid rest breaks (one before and one after the unpaid meal break)
Part-time employees – shifts of 4 or more hours but less than 7 hours
One 10-minute paid rest break
If a meal break is included in the work period then the paid rest break is to be taken in the longer work period or, if the work periods are of equal length, at a time agreed between the employer and employee
Part-time and casual employees – shifts of 7 or more hours
Two 10-minute paid rest breaks (one taken before the unpaid meal break and one after
Note: Rest breaks count as time worked. Meal breaks do not count as time worked.
76 The Award does not make provision for an employee to be called on to work during their meal break.
77 It is not in dispute that the Company paid Ms Menzies on the basis that she took a onehour meal break during each Saturday shift. Ms Menzies claims however, that she was not in fact permitted to and did not take breaks on Saturdays.
78 Ms Menzies claims payment for one hour on each of the Saturdays she worked during the employment.
79 The Company’s defence to the Meal Breaks Claim is that Ms Menzies was allowed and did take the meal breaks. If it is correct that Ms Menzies had a break of one hours’ duration each day, then the Company did not underpay her.
80 The evidence about this aspect of the claim was sparce and incomplete on both sides.
81 Ms Menzies said that she was not allowed to take a break and was instructed to ‘quickly eat the meal they cooked out the back and then get back on the floor to service clients that were booked in during the middle of the day- this was when we were usually rostered off for lunch breaks during weekdays...I was not given an uninterrupted break, as required in the Award, and wasn’t able to leave the salon- even going on my phone during this “break” was frowned upon.’ Exhibit C1 – Witness Statement of Isabel Menzies dated 24 June 2026, [19].

82 I asked Ms Menzies to elaborate on the circumstances surrounding Saturday meal breaks. It emerged that on days other than Saturday, a meal break was ‘rostered’ for staff by way of time being blocked out for client appointments in the appointments book. However, on Saturday, clients were booked in throughout the day, including the middle of the day, with no time blocked out for a lunch break. Staff would stop work ‘when you can, when you have a second.’ For example, if a client was at a basin with a mask in, Ms Menzies would take a break. She said ‘it was not a designated uninterrupted break that was booked off on the books for clients.’
83 On Saturdays, the Company supplied meals for staff. Ms Menzies would eat the supplied meal, but said she did so quickly, taking at most 10 minutes and eating at the back of the salon.
84 When I asked Ms Menzies who instructed her about the breaks, she said that there was no express instruction as such, but that it was ‘an unspoken rule reinforced by the other girls that had been there prior to me.’ They told her to eat when she could. ts 14  15.

85 The effect of Ms Menzies’ evidence was that a break was taken, but it was much less than a full hour and was taken at her own discretion.
86 Mr Lee’s evidence was that Ms Menzies was never instructed not to take breaks. According to Mr Lee, staff were able to book out time in the online client booking system to ensure that they had a lunch break. He explained that the reason the salon provided meals for staff on Saturdays was because there were no cafes or restaurants open in the surrounding neighbourhood on Saturdays. His evidence was that the Company wanted staff to take lunch breaks. The effect of his evidence was that staff were responsible for ensuring that they organised their day so that they could take the lunch break. If Ms Menzies did not take a break, he was not aware of this and she did not raise this as an issue at any time during the employment, even though she knew, from her payslips, that she was being paid on the basis that breaks were taken.
87 Mr Lee conceded that he was not always present at the salon on Saturdays, and so could not vouch for the time or duration of Ms Menzies’ breaks. He said he had observed her sitting at the back of the salon eating, chatting, or having a laugh, but it was unclear whether his observations were made on Saturdays. ts 53.

88 The Company did not produce any direct evidence to show Ms Menzies had a onehour break on Saturdays. There was no suggestion that the salon was shut for any period on Saturdays in between the opening and closing times. It did not produce appointment books which might have shown time when no clients were booked, or fewer clients were booked than stylists. It did not produce evidence from Ms Menzies’ supervisor about arrangements that were made to allow staff to take a meal break. Ms Menzies and her witnesses were not challenged on their evidence that that the only breaks that were taken were short breaks of 10 or so minutes, sufficient to consume a meal.
89 I find that Ms Menzies was not expressly directed to work without taking a meal break on Saturdays. Ms Menzies would have assumed that she was entitled to a meal break, because:
a. she took meal breaks on every other day she worked;
b. her payslips showed she was paid on the basis she had an unpaid meal break on Saturday; and
c. the Company provided her with a meal to consume at work.
90 I accept Ms Menzies’ evidence that Saturdays were busier than other days of the week, and that customers were booked in during the middle of the day. Further, I find that the reality of customer demands meant that structured breaks could not be taken routinely at a set time. However, the evidence does not establish that the booking schedule precluded breaks being taken at all.
91 The purpose of a provision such as cl 16.1 of the Award is to provide an employee with a period of time in which the employee is able to engage in a meal related activity or an activity of the employee’s choice: Seo v Bindaree Food Group Pty Ltd (Seo). [2021] FWCFB 2691 [44], [51]
If an employee can be called on to work during the meal break, the entitlement in the clause is not met. [2021] FWCFB 2691 [46].
:
92 Whether Ms Menzies could be called on to work during her meal break is not answered by reference to whether she worked during what ought to have been a break from work. Rather, the question is whether she had a duty to work at that time because she was instructed to do so by management or was obliged to do so under her contract of employment. In Minister for Police v WA Police Force Union of Workers, a decision of the Western Australian Industrial Appeal Court, Neville J said:
It seems to me that if a worker is instructed by a superior, whom it is his duty to obey, that he must do certain things and must not do certain other things, during a certain period he must, during that period, be on duty and, in the terms of this award, therefore, that time must be time worked. (1969) 49 WAIG 993; see also Hospital Employees’ Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455, 456 per Burt CJ and Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 116 FCR 58, [17]  [18] per Lee J and [37] per Finkelstein J.

93 An instruction to work may be implied. In Australian Salaried Medical Officers’ Federation v Peninsula Health, Bromberg J said:
In [an ongoing employment relationship], some of what the employer requires of the employee, in terms of how, when and where the employee should provide his or her services in the conduct of the employer’s business, may be expressly set out in the employee’s contract of employment, position description or verbally by the employer upon the employee commencing employment. However, the practicalities of a working relationship are not ordinarily conducive of formalism or prescriptive instructional processes as there are a myriad of circumstances and tasks that are part of an employee’s job that cannot, and need not, be foreshadowed in advance. As such, much of what is required of an employee must necessarily be left to be implied and, when what is required by the employer is the subject of a specific request, instruction or direction, that will almost always be done informally. Employees will necessarily be required to infer, from generalised expectations set by an employer, the custom and practice of the workplace, ongoing general arrangements, the nature of the work and the nature of their duties and skills (amongst other surrounding circumstances), what it is that their employer specifically requires of them in any given circumstance and therefore what it is they are authorised to do in a given and specific situation. [2023] FCA 939; (2023) 325 IR 26 [78].

94 The combined effect of Ms Menzies,’ Ms De Salis’s and Ms Wilkinson’s evidence was that staff were not ‘free to leave’ the salon, were expected to be on call to return to work during any break if required, and the break was not uninterrupted. The break was of a relatively short duration sufficient to consume a meal. This was a known expectation and a consistent practice on Saturdays throughout the employment.
95 This evidence, as I have said, was not challenged and Mr Lee’s evidence did not contradict it. He merely asserted that Ms Menzies was allowed to and did take breaks.
96 I am therefore satisfied on the balance of probabilities that the Company authorised and required Ms Menzies to work during what ought to have been her Saturday meal breaks. The Company contravened cl 16.1 by depriving her of the entitlement in cl 16.1.
97 This is not the end of the Meal Breaks Claim though. Ms Menzies is entitled to be paid for the time she spent working. As I accept that Ms Menzies was not allowed a 60minute meal break on each Saturday, but the Company paid her as if she was, this means that that the Company has not paid her for all time that she worked, and there is an underpayment.
98 The evidence does not establish that Ms Menzies worked an extra hour over and above what she was paid for, as she accepts she took some time as a break to eat a meal. Her evidence was that her breaks were 10 minutes ‘at the most’. Ms De Salis and Ms Wilkinson did not specify how much time was taken as breaks, other than to say breaks were taken when they could be taken. It is likely that the duration of Ms Menzies’ breaks varied from week to week.
99 Under s 545(3) of the FWA, the Court may order the Company to pay an amount to Ms Menzies only of the Court is satisfied that:
(a) the employer was required to pay the amount under this Act or a fair work instrument; and
(b) the employer has contravened a civil remedy provision by failing to pay the amount.
100 Ms Menzies bears the onus of proving her claim on the balance of probabilities. She has not satisfied me to the requisite standard that the Company was required to pay her the amount she claims she is owed for working on Saturdays. However, I am satisfied that at least 30 minutes was worked by Ms Menzies on each Saturday she worked, for which she has not been paid.
101 Accordingly, by my calculations, a total of 37.5 hours was not paid, resulting in an underpayment of $782.82 as follows:
a. From 11 February 2024 to 29 June 2024: 10.5 hours at $19.15 per hour = $201.08
b. From 30 June 2024 to 15 February 2025: 14.5 hours at $19.87 per hour = $288.12
c. From 16 February 2025 to 29 August 2025: 12.5 hours at $23.49 per hour = $293.62
Hours Shortfall Claim
102 In addition to the 6.5 hours unpaid leave recorded in the payslip for the period that ended 3 May 2025, the payslips record a total of 23.75 hours unpaid leave across various pay periods. The unpaid leave was in fortnightly amounts of between 0.5 and 3.5 hours: Exhibit C1 – Amended Witness Statement of Isabel Menzies dated 24 June 2026, [23].

103 Ms Menzies claims that these amounts represent times when the salon shut early, and she was sent home. She claims she is entitled to be paid for these hours, as they were part of her rostered hours of work, and she was ready, willing and able to work.
104 Ms Menzies did not give evidence of the actual circumstances when she was ‘sent’ home early, such as the days she was sent home, who gave her the direction to stop working, the content of the direction or the time she finished work on those days.
105 In crossexamination, Mr Lee denied that Ms Menzies was ever sent home from work early. He said the unpaid leave recorded in the payslips relates to times when Ms Menzies sought, and was permitted, to leave work for her own personal reasons. ts 58  76.

106 Ms Menzies, Ms De Salis and Ms Wilkinson were all consistent in their evidence that when no clients were booked on some afternoons, staff were directed to finish work early. According to Ms De Salis, this occurred once or twice a week and according to Ms Wilkinson it occurred at least once a week. This evidence was not challenged and I accept it.
107 However, finding that the salon closed early, and that staff were directed to stop work early, does not lead to a finding that Ms Menzies was not paid for her rostered hours. If these early closures were being treated by the Company as a reduction in hours, then every one of Ms Menzies’ fortnightly payslips would involve payment for reduced hours. Less than half of the fortnightly payslips involved reduced hours.
108 The more plausible explanation for the ‘unpaid leave’ amounts in the payslips is Mr Lee’s explanation that they relate to ad hoc times when Ms Menzies did not work at her own request.
109 Ms Menzies has not satisfied me to the requisite standard that the Company has underpaid her on the occasions when the payslips refer to unpaid leave.
Termination Pay Claim
110 Ms Menzies resigned from her employment with the Company on 29 August 2025. She claims that she gave two weeks’ notice of the termination, but that Mr Lee told her that she was not required to give notice and instructed her not to return to work after 29 August 2025.
111 There is a conflict between Ms Menzies’ evidence and Mr Lee’s evidence about the sequence of events on 29 August 2025.
112 According to Ms Menzies, she had lunch with her father, then on her return from lunch she verbally told Mr Lee that she was resigning from her employment, giving two weeks’ notice. Mr Lee responded that he was not surprised and asked her to put something in writing to make it official.
113 Ms Menzies continued with her work, at one point sending a text message to her father to confirm that she had resigned.
114 At 2:20 pm, Ms Menzies sent Mr Lee an email saying:
This is my official resignation of this job.
Thank you for everything. Exhibit R3 – Form 2 – Response – Resignation Email from Isabel Menzies to Dave Lee dated 29 August 2025.

115 At or after 5:00 pm, Mr Lee told her that she was not required to give two weeks’ notice, and that she should pack up her tools, go home and not return to work the following day.
116 According to Mr Lee, the only conversation that occurred between him and Ms Menzies about her resignation was after he had received her email resignation. He did not give a full account of any discussion between him and Ms Menzies, but denied that she gave two weeks’ notice and said he was blindsided by her resignation.
117 In text messages between Ms Menzies and her father on 29 August 2025 from 1:45 pm to 1:53 pm, Ms Menzies informs her father that she has resigned. In answer to her father’s question, she said that she has to work tomorrow.
118 At 4:25 pm, Ms Menzies tells her father that ‘they haven’t decided when they want me to leave.’
119 Mr Menzies’ evidence, and in particular her account of the sequence of events, is consistent with these documents. The email’s reference to the resignation being ‘official’ is consistent with Ms Menzies being asked by Mr Lee to put something in writing to make the resignation official. The text messages’ references to working for another two weeks are consistent with Ms Menzies having verbally given two weeks’ notice. The timing of communications is consistent with Ms Menzies having resigned verbally, then emailing a written resignation, before having a further discussion about her last day of work.
120 Mr Lee’s recollection is inconsistent with the documentary evidence. Accordingly, I prefer and accept Ms Menzies’ evidence.
121 Specifically, I accept that Ms Menzies verbally gave two weeks’ notice of her resignation, before confirming her resignation in an email. I accept that at around 5:00 pm on 29 August 2025, Mr Lee told Ms Menzies she need not return to work the following day.
122 When an employee has given notice of their resignation, an employer’s unilateral decision to end the employment during the notice period constitutes a termination on the employer’s initiative, requiring written notice of payment in lieu of notice. Resignation on notice brings the employment to an end upon the expiry of the notice. If the employer ends the employment on an earlier day, the employment is terminated on that day on the initiative of the employer: Moore v Bytewise Pty Ltd, [2026] FWCFB 217 [25].
citing Terex Australia Pty Ltd v Cameron (Terex) and the authorities referred to therein. In Terex the Full Bench held that:
A resignation on notice that ends on the employee’s nominated termination date is a termination of employment on the employee’s initiative. In that situation, the contract of employment and the employment relationship continues until the expiry of the period of notice in the absence of agreement that the termination date is to be brought forward. But if the employer then imposes an earlier termination date, the employment ends on its initiative. [2025] FWCFB 205 [11].

123 It is clear from Ms Menzies’ text messages with her father that she was keen to finish work sooner rather than later. Her father refers to her having to work ‘2 more weeks at worst’ and advises her that she can take annual leave and sick leave if she does not want to go back. Had the Company sought Ms Menzies’ agreement to end the employment early she was likely to have given it. However, Mr Lee’s evidence was not that there was a mutual agreement about the end date for the employment. He simply denied Ms Menzies’ version.
124 I find that the Company terminated the employment during the notice period given by Ms Menzies when Mr Lee told Ms Menzies not to return to work. Accordingly, the Company is obliged to pay out the notice period pursuant to cl 33 of the Award and s 117 of the FWA. Two weeks’ pay is $1,583.29.
TAFE Fees Claim
125 Clause 12.5 of the Award says:
(c) An employer must either:
(i) reimburse an apprentice for all fees paid by the apprentice themselves to a registered training organisation (RTO) for courses that the apprentice is required to attend, and all costs incurred by the apprentice in purchasing textbooks (not provided or otherwise made available by the employer) that the apprentice is required to study, for the purposes of the apprenticeship; or
(ii) pay any training course fees and/or textbook costs directly to the RTO.
(d) The employer must make any reimbursement required under clause 12.5(c)(i) by whichever of the following is the later:
(i) within 6 months after starting the apprenticeship; or
(ii) within 6 months after the relevant stage of the apprenticeship; or
(iii) within 3 months after starting the training provided by the RTO.
(e) Reimbursement under clause 12.5(c)(i) is subject to the employer being satisfied that the apprentice is making satisfactory progress in the apprenticeship.
126 Ms Menzies provided documentary evidence of the TAFE studies she undertook during the employment, and the fees she paid to TAFE for them. She confirmed that the receipts were not provided to the Company during her employment or before the commencement of these proceedings.
127 Ms Menzies established that she paid the following fees to a registered training organisation for courses she was required to attend for a Certificate III in Hairdressing:
a. $603.75 on 4 July 2024 (Semester 2, 2024- Stage 1 units)
b. $1137.50 on 17 January 2025 (Semester 1, 2025- Stage 2 units)
c. $816 on 14 July 2025 (Semester 2, 2025- Stage 2 and Stage 3 units).
128 The Company’s defence of this claim is that it was not satisfied, at the relevant time, that Ms Menzies was making satisfactory progress in the apprenticeship. The Company also says that no claim for payment was made, and it had no proof of Ms Menzies’ payments, until these proceedings were commenced.
129 It appears from the TAFE Coursework Summary that as at 29 August 2025, Ms Menzies had not yet completed or passed all Stage 2 units and was enrolled in Stage 3 units. Several stage 2 units were not passed until 15 December 2025. Exhibit C6 – Witness Statement of Isabel Menzies dated 1 June 2026 – North Metropolitan TAFE Coursework Summary.

130 The Company was not required to reimburse Ms Menzies until the latest of the times referred to in cl 12.5(d). As at 29 August 2025, when the employment ended, the time at which the Company was required to reimburse Ms Menzies for Stage 2 and Stage 3 fees had not arrived. That is, it was not yet six months after Stage 2 or Stage 3. Accordingly, the Company was not liable to make reimbursement to Ms Menzies for Stage 2 or Stage 3. By the time six months had passed after the relevant stage of the apprenticeship, the Company was no longer Ms Menzies’ employer and therefore it was not bound by cl 12.5 in respect of Ms Menzies.
131 Of the fees claimed, $603.75 relate to Stage 1. Ms Menzies had passed all units in Stage 1 by 25 November 2024. If the conditions for reimbursement were met, the Company was required to make reimbursement no later than within 6 months after 25 November 2024, that is, by 25 May 2025.
132 To establish the Company’s lack of satisfaction as to Ms Menzies’ progress, Mr Lee said that Ms Menzies was ‘behind on multiple items’ and that tasks were outstanding. He also referred to Ms Menzies being absent from, or late to, TAFE classes on six occasions. Of those six occasions, four occurred during Semester 2 of 2024, that is, during Stage 1. On one occasion she was one hour late to TAFE. On the other three occasions she was on annual leave and was overseas. Her absences do not objectively establish a basis for the Company to have concluded Ms Menzies was not making satisfactory progress in Stage 1 of the apprenticeship.
133 Otherwise, the Company produced no other evidence which would tend to show Ms Menzies was not progressing through Stage 1 satisfactorily. It produced no evidence of communications it had either with Ms Menzies or TAFE raising concerns about Ms Menzies’ progress. It produced no evidence of performance or conduct on the part of Ms Menzies which would rationally lead to it lacking satisfaction as to her progress.
134 On the other hand, the TAFE Coursework Summary showed that on 25 November 2024, Ms Menzies passed all Semester 2 units she enrolled in for Stage 1 of the apprenticeship. Between 21 July 2025 and 29 August 2025, she passed a further two Stage 2 units. All were passed on a first or second attempt.
135 Accordingly, I find that the Company did not lack satisfaction as to Ms Menzies’ progress concerning Stage 1 of the training at relevant times during the employment. Accordingly, the conditions for reimbursement of Stage 1 fees paid for by Ms Menzies are met and the Company is liable to reimburse Ms Menzies $603.75.
Conclusion and Disposition
136 For the above reasons, Ms Menzies has proven on the balance of probabilities that the Company was required to pay her:
a. $114.79 in respect of the 2025 Anzac Day public holiday.
b. $1,072.28 in respect of time worked by her each week, which was treated as an unpaid meal breaks;
c. $782.82 in respect of time worked on Saturdays, which was treated as unpaid meal breaks;
d. $1,583.29 in respect of pay in lieu of notice of termination; and
e. $603.75 in reimbursement of fees Ms Menzies paid to TAFE as required by her apprenticeship.
Total $4,156.93
137 The Company failed to pay the above amounts in contravention of cls 29.1, 18.1, 33 and 12.5 respectively of the Award, and s 45 of the FWA, being a civil penalty provision.
138 Ms Menzies agreed that the Company had overpaid her for accrued annual leave on termination in the amount of $566.62. Exhibit C1 – Amended Witness Statement of Isabel Menzies dated 24 June 2026, [17]; Exhibit C2 – Amended Supporting Document – Attachment A – (2024 and 2025 Payslip Reconciliation).
This is to be deducted from the amounts the Company has underpaid.
139 I will order that the company pay Ms Menzies $3,590.31 within 14 days from the date of my orders.





R. COSENTINO
INDUSTRIAL MAGISTRATE