Federal Court of Australia

Mazi v Elizabeth Andrews Pty Ltd [2026] FCA 638

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time lodged for filing on 8 January 2026, is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCELWAINE J:

1    Grace Mazi (the applicant) was a casual employee of Elizabeth Andrews Pty Ltd (the first respondent). The first respondent is a catering business which operates a commercial kitchen and employs kitchen assistants and cooks. It is covered by the Hospitality Industry (General) Award 2020. The applicant completed five shifts for the first respondent commencing on 29 November 2022 and during that time was classified as a “Kitchen Attendant Grade 1” under the Award. The applicant then lodged a worker’s compensation claim for an injury sustained in her employment and did not perform any further work for the first respondent.

2    The applicant brought an application in the Federal Circuit and Family Court of Australia (Division 2) under the Fair Work Act 2009 (Cth) (FW Act) claiming that the first respondent misclassified her position under the Award, which resulted in consequential underpayment of her wages and entitlements. The applicant made other claims under the FW Act, including that the first respondent failed to issue compliant payslips and employment documentation, failed to pay her on time, made unauthorised deductions from her wages, engaged in coercive conduct and made misleading representations about her workplace rights. The applicant also claimed that the respondent failed to comply with the dispute resolution procedure contained in cl 40 of the Award.

3    The second and third respondents are the owners and directors of the first respondent. The fourth respondent is the financial controller of the first respondent who is responsible for the payroll system. The applicant claimed accessorial liability against each of them by virtue of s 550 of the FW Act.

4    On 15 August 2025, Deputy Chief Judge Mercuri delivered judgment which was concerned with the question of liability only: Mazi v Elizabeth Andrews Pty Ltd [2025] FedCFamC2G 1284 (liability judgment or LJ). Her Honour made declarations that the first respondent had contravened s 45 of the FW Act by failing to pay the applicant for work performed on 4 December 2022 within the agreed weekly pay period in accordance with the Award, and s 536 of the FW Act by failing to provide the applicant with a pay slip for work performed on 4 December 2022, with the required information within the prescribed time frame. Her Honour found against many other contraventions as asserted by the applicant. On 4 December 2025, her Honour delivered a penalty judgment and concluded that no penalty was appropriate as the two contraventions occurred due to “honest mistakes and oversights” by the first respondent that “were contributed to by the applicant”: Mazi v Elizabeth Andrews Pty Ltd (No 2) [2025] FedCFamC2G 1992. The proceeding was otherwise dismissed.

5    On 8 January 2026, the applicant filed an application for an extension of time to file a notice of appeal and for leave to appeal from the liability judgment.

6    On 11 March 2026, I made orders that the application be determined on the papers and I made provision for written submissions to be filed by the parties. The parties filed submissions as required, although the respondents’ submissions were filed after an extension of time was granted. On 12 April 2026, the applicant filed an amended draft notice of appeal.

7    The liability judgment was an interlocutory judgment, as the issue of relief was reserved for further hearing: Monash Health v Singh [2023] FCAFC 166; (2023) 327 IR 196 at [28] – [44] (Katzmann, Snaden and Raper JJ). Applications for leave to appeal from interlocutory judgments must be filed within 14 days of the judgment being pronounced, which in the applicant’s case, was on or before 29 August 2025: r 35.13 of the Federal Court Rules 2011 (Cth). The applicant therefore requires an extension of time to seek leave to appeal: r 35.14 of the Rules. The applicant also requires a grant of leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The usual considerations in determining whether leave to appeal should be granted are well understood: Décor Corporation Pty Ltd v Dart Industries Ltd [1991] FCA 844; (1991) 33 FCR 397 at 398 – 399. That is, whether “the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court” and whether substantial injustice would result if leave were refused.

8    The factors that are commonly regarded as relevant to the Court’s discretion to grant an extension of time tend to overlap with whether leave should be granted, with the additional considerations being the length of delay, whether there is an adequate explanation for it and whether the delay results in prejudice to the administration of justice or to the respondents: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [40]; Re Monarch Tower Pty Ltd (in liq) [2025] FCAFC 137; (2025) 313 FCR 429 at [39]. It is customary to consider the merits of the proposed appeal grounds; that is whether the appeal has reasonable prospects of success. As explained in Katoa at [17] – [20] sometimes it is appropriate to engage in “more than an impressionistic assessment of the merits”: [18]. Here, the respondents submit that none of the appeal grounds have any reasonable prospect of success. In view of that submission, I have determined that this is a case that justifies more than an impressionistic assessment of the proposed appeal grounds.

9    The applicant submits that the respondents suffer no identifiable prejudice by the delay, and the respondents do not submit otherwise. In the applicant’s affidavit sworn 8 January 2026 she explains the reason for delay, being that when the liability judgment was handed down, she understood the proceeding to be continuing and did not consider the time for filing a notice of appeal in respect of the liability orders commenced independently to the final orders for penalty. On 2 January 2026, the applicant lodged a notice of appeal. On 7 January 2026, the applicant became aware that the appeal was not filed within time, and filed the application for an extension of time the next day.

10    The applicant is self-represented. It is common even for experienced lawyers to fail to draw the distinction between final and interlocutory orders: Monarch Tower at [40]. The applicant has provided a reasonable explanation for the delay. If the appeal grounds have reasonable prospects of success, then time should be extended.

11    I turn to the proposed appeal grounds, in the form of the amended draft notice of appeal filed on 12 April 2026. The applicant submits that the appeal raises arguable questions of law. On its face the amended draft notice of appeal takes issue with each finding of the primary judge (fact and law) that was adverse to the applicant. The proposed grounds are unsatisfactory in form and poorly drawn in that there is no attempt to identify the asserted errors by reference to the liability judgment, which is a regrettably familiar occurrence in appeal notices in this Court: Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd [2026] FCAFC 16 at [51] – [53].

Proposed ground 1

12    This proposed ground contends that the primary judge erred in law by misconstruing and misapplying the Award in determining the applicant’s proper classification and thereby erred in dismissing the consequential underpayment claims. The ground fails to specify where in the liability judgment this error is to be found. In submissions, the applicant contends that her proper classification under the Award was a “Kitchen Attendant Grade 2”, rather than a “Kitchen Attendant Grade 1”. Clause 14 of the Award requires an employer to classify an employee in accordance with Schedule A - Classification Structure and Definition.

13    The applicant submits that the primary judge “correctly stated that classification must be based on the actual duties performed and not on job title” but did not undertake the “required evaluative comparison” between her duties and the descriptors in the Schedule A, and instead the reasoning applied a “narrower treatment” before concluding that the duties were within Grade 1.

14    Schedule A of the Award relevantly provides:

A.2.2 Kitchen Stream

(a)     Kitchen attendant grade 1 (wage level 1) means an employee engaged in any of the following:

•    general cleaning duties within a kitchen or food preparation area or scullery, including cleaning cooking and general utensils used in a kitchen or restaurant;

•    assisting employees who are cooking;

•    assembling and preparing ingredients for cooking;

•    general pantry duties.

(b)     Kitchen attendant grade 2 (wage level 2) means an employee who has the appropriate level of training, and who is engaged in specialised non-cooking duties in a kitchen or food preparation area or in supervising kitchen attendants.

(c)     Kitchen attendant grade 3 (wage level 3) 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 kitchen attendants of a lower classification.”

15    The primary judge set out the evidence about the applicant’s duties from LJ [102] – [123] before making factual findings. The applicant claimed that she ought to be classified as Grade 2 because her duties involved “specialised non-cooking duties” including by making “specialised yoghurt”, and cooking pancakes, bacon and eggs. The primary judge, after considering all the evidence, accepted that the applicant “assembled yoghurt pots by combining yoghurt and other ingredients into a container” which involved “measuring out the various ingredients to ensure consistency in the product”, but was not satisfied that the task involved “specialised non-cooking duties” as opposed to specialised food: LJ [133]. Further, the primary judge found that the applicant was required to cook pancakes for no more than 2 hours on one shift and accepted the respondents’ evidence that the applicant did not cook bacon and eggs but was “simply required to tray up the bacon and eggs for another person to cook”: LJ [136]. Her Honour found that these duties fell within the Grade 1 classification, namely, “assisting employees who are cooking” and “assembling and preparing ingredients for cooking”: LJ [133]. As to training, the applicant’s own evidence was that the training she had undertaken was “required for anyone who works in the food industry”, and as such, her Honour found that on a fair reading of the classification structure, that could not be what was intended by the reference to the “appropriate level of training” in the Grade 2 classification: LJ [140]. Her Honour rejected the applicant’s claim that her prior experience was relevant to the classification for the position ultimately offered, as the question was not whether the applicant may have been able to undertake a higher classified role: LJ [144]. Having regard to the totality of the evidence, her Honour found that the applicant’s duties “clearly” fell within the Grade 1 position: LJ [145].

16    The applicant does not challenge any of these findings. Rather, her evaluative comparison submission distorts the reasoning of the primary judge and overlooks the unchallenged factual findings.

17    The primary judge was meticulous in identifying the correct issue at LJ [78(a)], in recording the Award classifications and descriptors at LJ [98] – [100] and in her focus on the applicant’s evidence at LJ [105] and the evidence of other witnesses at LJ [107] – [110] and [113] – [114]. Her Honour then made findings of fact commencing at LJ [124] and in doing so preferred the evidence of Mr Drake and Mr Scudamore where it conflicted with the applicant’s evidence. In doing so, the primary judge made findings of fact that were open on the evidence. This proposed ground, when read with the applicant’s submissions, rises no higher than generalised complaints that the primary judge should have made findings in accordance with her evidence and submissions. No appealable error is exposed and it follows that this proposed ground is devoid of merit.

Proposed ground 2

18    This ground provides:

The primary Judge erred in law in determining the [Applicant’s] payment administration contravention claims (payslips, deductions, payment for the 11 December 2022 shift, and clause 11.5 of the Hospitality Industry (General) Award 2020) by failing to apply the correct statutory and Award criteria to the identified payment events and by failing to engage with the substance of the [Applicant’s] case on each issue.

19    In her written submissions, the applicant deals with each of the four “contravention claims” discretely. The respondent criticises proposed ground 2 as a “grab-bag of vague and broad allegations” which are not made by reference to clearly identified findings in the liability judgment. I accept the submission.

20    First, the applicant criticises the primary judge’s reasons in relation to payslips. She complains that the reasons did not undertake a “criterion-by-criterion assessment” of the impugned payslips and instead the issue was reduced to “limited non-compliance and later correction”. The submission is devoid of merit in that the primary judge at LJ [169] – [170] found that the first respondent was in breach of the requirements at s 536 of the FW Act by omitting the requisite information, but noted that the fact it was rectified within days would be relevant to any penalty.

21    Second, the applicant contends that the first respondent unlawfully deducted 15 minutes of her pay. In relation to deductions, she complains that the primary judge “focused on factual reconstruction of hours worked, lateness, break duration, and asserted payroll accuracy” rather than focusing on the “statutory question of authorisation” in ss 323 and 324 of the FW Act. The contention is manifestly wrong. The primary judge undertook a careful analysis of the evidence and found that the applicant was paid for her actual hours of work with no deduction made to her wage: LJ [189]. The proposed ground does not challenge that finding with the consequence that no appealable error is identified.

22    Third, the applicant contends error in the primary judge’s finding that she was not rostered on for a shift on 11 December 2022. On her case, she arrived at work “in accordance with the previously communicated shift pattern” however, on arrival was told she was not rostered on and was not required. She complains that the primary judge “treated the matter principally as a rostering dispute and thereby failed to engage with the substance of the contemporaneous dispute”. The primary judge found that the applicant was not rostered on and was therefore not entitled to be paid: LJ [207]. Her Honour referred to, among other things, the applicant’s contract which made it clear she was engaged on a casual basis. Those findings are not disputed. It follows that the submission is misconceived. The applicant’s fourth complaint, relating to the timing of payment for 11 December 2022 is contingent on the third and is devoid of merit for the same reason.

23    Thus, this proposed ground is devoid of merit.

Proposed ground 3

24    Like proposed ground 2, the applicant’s submissions assert discrete issues within this ground, without any reference to specific findings in the liability judgment. It provides:

The primary Judge erred in law in determining the [Applicant’s] claims concerning continuing Award obligations (superannuation under clause 27.5(b), provision of employment documents under clause 3.3, and dispute resolution under clause 40.8(a) of the Hospitality Industry (General) Award 2020) by failing to apply the correct Award framework and by failing to determine squarely the material issues raised by the Applicant’s case on each obligation.

25    The applicant’s first complaint is that in assessing whether she was entitled to superannuation payments whilst in receipt of Workcover payments under cl 27.5 of the Award, the primary judge “diverted the inquiry” into whether she had established “accident pay”, rather than applying the objective preconditions in the clause. Clause 27.5 of the Award relevantly provides (emphasis added):

Subject to the governing rules of the relevant superannuation fund, the employer must also make the superannuation contributions provided for in clause 27.2 and pay the amount authorised under clause 27.3(a) or 27.3(b):

…

(b)     Work-related injury or illness - in respect of any employee entitled to accident pay for the period of absence from work of the employee due to work-related injury or work-related illness provided that…

26    Whether the applicant had established accident pay is the first objective precondition that appears in the clause. The primary judge found that this was not satisfied, and therefore she was not entitled to the payment at LJ [239] – [240]:

The applicant has not been on paid leave since 11 December and therefore clause 27.5(a) does not apply. In relation to clause 27.5(b) there are a number of hurdles which need to be met for the applicant to be entitled to superannuation in respect of her absence due to a work-related illness or injury. First, the applicant must demonstrate that she is ‘entitled to accident pay for the period of absence from work ... due to work related injury or work-related illness’. Accident pay is not a defined term in the Award. But it must be something other than workers’ compensation payments because that is an additional requirement before superannuation payments are payable during an employee’s absence from work for a work-related injury or illness.

Ms Mazi has not established that she is in receipt of ‘accident pay’ and as such has not established that she would qualify for superannuation payments under clause 27.5.

27    The proposed ground does not assert error in that finding. Accordingly, there is no prospect of success on this aspect of the applicant’s complaints. Turning to the employment documents aspect of the proposed ground, the applicant complains that the primary judge considered that the presence of a QR code or hard copy material was sufficient to satisfy the first respondent’s obligation to provide her with information under cl 3.3 of the Award, without engaging with her case that “she had not been informed, inducted, directed, or otherwise given meaningful access to those materials”. Clause 3.3 of the Award provides that the required documents should be available to all employees either on a notice board conveniently located at or near the workplace or through accessible electronic means. The primary judge found that the first respondent made the QR code available on the notice board in the training room, in addition to hard copy documents being available in the administration offices, which are both accessible to staff 24 hours a day: LJ [230]. The primary judge considered the applicant’s evidence that she was not made aware of the location or accessibility of the documents but contrary to her case found that the first respondent complied with cl 3.3 and that there was no requirement for her to be personally informed of or provided with the documents: LJ [228] – [231]. Those findings are unimpeachable. The Award required no more than “accessible electronic means” and the primary judge was plainly correct to conclude at LJ [231]:

There is no requirement, as alleged by Ms Mazi, that these documents be personally issued to her or that she personally be informed of their location, or that there be some induction which addresses these matters. I am therefore satisfied that clause 3.3 has been complied with. I do not accept Ms Mazi’s submission that in circumstances where she was not given a copy of these documents or expressly told where they are, that they were not functionally available to her.

28    The third component of this rolled-up ground is concerned with the dispute resolution mechanism in the Award. Once again, the proposed ground fails to identify the asserted error. The applicant’s submissions reveal a fundamental misunderstanding on her part. She submits that the primary judge failed to determine whether a dispute existed within the meaning of cl 40 of the Award. The applicant’s misconception is manifest in that the primary judge found that the dispute resolution procedure in cl 40 of the Award had not been invoked by the applicant, and therefore the clause did not apply: LJ [250]. Her Honour went on to say that even if she was wrong and the clause was invoked, the applicant did not establish that the first respondent failed to comply with it: LJ [252] – [253].

29    For these reasons this proposed ground is devoid of merit.

Proposed ground 4

30    This proposed ground asserts that the primary judge erred in dismissing the claims under ss 343 and 345 of the FW Act by “failing to apply the correct statutory tests and by treating the conduct as an administrative or operational matter rather than undertaking the required statutory inquiries into intent to negate choice and the making of false or misleading representations about workplace rights”. Like each of the preceding proposed grounds, there is no attempt to identify where the error is to be found.

31    In submissions the applicant advances multi-faceted complaints. The s 343 complaint is that retrospective deductions were made to her wages “by reference to uncommunicated requirements and surveillance-based assessment, without prior notice of the asserted rule, without transparency as to the footage relied upon, and with immediate financial consequences”. The submission is difficult to understand. The primary judge grappled with this aspect of the case at LJ [256] – [259]:

The applicant claims that the respondent’s use of CCTV surveillance to monitor her breaks and to retrospectively ‘deduct’ wages without her consent is in breach of section 343(1)(a) and (b). The applicant submits that ‘the employer used workplace surveillance to scrutinise my break times, which resulted in unauthorised wage deductions, coercing me into adhering to an un-communicated condition regarding break times’.

The applicant further submits that the use of surveillance in this way was also in breach of Part 2A of the SD Act which prohibits the use of surveillance for monitoring employee’s private activities without express consent. The applicant says that she did not consent to the use of surveillance videos for this purpose and moreover, she maintains that she was not required to sign in and out for her breaks until after Mr Galea sent her the message about this on 9 December 2022. The applicant therefore asserts that in taking this approach, the employer applied the rule retrospectively. The applicant says that prior to 12 December 2022, she was not required to sign in and out for her breaks, nor was she specifically asked to do so. The applicant further submitted that as she was only directed to sign in after she had already completed her shifts on 4 – 7 December, ‘penalising [her] for not doing so was procedurally unfair’. 

The applicant further stated that the employer’s claim that the use of the CCTV footage to ensure that her break times were accurately recorded lacked credibility. She submitted:

CCTV footage was reviewed in a targeted manner after I expressed difficulty in recalling exact break times, suggesting I was singled out for surveillance. If the employer had a genuine concern about recording break time accurately, why was the CCTV review applied selectively rather than as a uniform policy? This practice created an implicit threat. Any deviation from un-communicated break expectations would be monitored and result in wage deductions.

Furthermore, the applicant submits that a generic sign which states ‘Smile. You are on camera’ does not constitute consent for wage surveillance.

32    The primary judge set out ss 343, 341 and 361 of the FW Act at LJ [260] – [262] and found at LJ [263] that the applicant failed to identify the workplace right she claimed was the subject of the employer’s attempt at coercion. Her Honour reinforced this aspect of the applicant’s basal failures at LJ [264] – [266]. The proposed ground and the applicant’s submissions fail to engage with this matter with the consequence that the arguments relied on by the applicant have no prospect of success.

33    As to the s 345 FW Act case, the applicant’s submissions include this:

In relation to s 345, the [Applicant’s] case was that the CCTV-based deduction, the assertion of an excessive break, the refusal to disclose the footage, and the reliance upon an uncommunicated rule or consequence together conveyed a representation about how the [Applicant’s] pay rights, break entitlements, and obligations operated. The primary judge did not identify the representation conveyed, the workplace right to which it related, or whether it had the tendency to lead the [Applicant] into error about that right.

34    The submission at once exposes why this complaint is baseless. A false or misleading representation that is knowingly or recklessly made by an employer must be “about” the workplace rights of another person. The applicant’s failure to identify the workplace right in issue was fatal to acceptance of this claim and the primary judge was correct to dismiss the claim on that basis: LJ [276].

35    This proposed ground is devoid of merit.

Proposed ground 5

36    This contends error in the primary judge’s finding that the second to fourth respondents were not involved in contraventions within the meaning of s 550 of the FW Act, by failing properly to apply the governing principles concerning knowledge of the essential facts, intentional participation, and practical connection, having regard to the evidence of the individual respondents’ communications and conduct after notice.

37    There being no merit in the foregoing grounds, this proposed ground largely falls away. To the extent that the primary judge made limited findings of contravention in the applicant’s favour, there is no utility in this proposed ground because her Honour did not impose any civil penalties because the contraventions were inadvertent and contributed to by the applicant. There is no appeal from the dismissal of the proceeding on that basis.

Conclusion

38    For these reasons, I have reached the conclusion that the liability judgment is not attended with sufficient doubt to warrant it being reconsidered on appeal. The application for an extension of time and leave to appeal must be dismissed.

39    The respondents make no submission that the discretion to make a costs order at s 570 of the FW Act is engaged.

Associate:

Dated:    25 May 2026

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