Clerke v Vortex Aircraft Maintenance Pty Ltd
[2025] FedCFamC2G 1629
•9 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clerke v Vortex Aircraft Maintenance Pty Ltd [2025] FedCFamC2G 1629
File number: MLG 1277 of 2023 Judgment of: JUDGE CHAMPION Date of judgment: 9 October 2025 Catchwords: FAIR WORK – JURISDICTION – Where under s. 365(a) of the FW Act if “a person has been dismissed” and the person alleges that the dismissal was in contravention of the general protections in Part 3.1 of the FW Act the person may apply to the Fair Work Commission to deal with the dispute – Where the Applicant applied to the FWC before the date of his dismissal - Held the court lacks jurisdiction as to the dismissal dispute.
FAIR WORK – GENERAL PROTECTIONS – Whether six communications were “complaints” within the meaning of s. 341(1)(c) of the FW Act – Held except for two complaints the communications were not complaints within the meaning of s. 341(1)(c) – In any event the Respondent dismissed the Applicant because of concerns about the Applicant’s performance and not because of complaints – General protections claim dismissed.
FAIR WORK – NOTICE – Where the First Respondent admitted that it contravened s. 44 of the FW Act by failing to give the Applicant notice of the termination of his employment or a payment in lieu of notice in accordance with s. 117(2) – Declaration made – Orders made for a further hearing as to penalty and any consequential matters
Legislation: Evidence Act 1995 (Cth) s. 191
Fair Work Act 2009 (Cth) ss. 44, 61, 90, 117, 340, 341, 342, 361, 365, 366, 368, 369, 370, 386, 545, 546, 550, 570
Occupational Health and Safety Act 2004 (Vic) ss. 21, 25
Cases cited: Alam v National Australia Bank Ltd (2021) 288 FCR 301; [2021] FCAFC 178
Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 786
Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, [2012] HCA 32
CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41
Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591; [2020] FCAFC 152
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Dilena v Dowell’s Traffic Management Pty Ltd [2012] FMCA 60
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Harris v Caladine (1991) 172 CLR 84,
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
McMaster v Qube Ports Pty Ltd [2015] FCA 1385
Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677
Pilbrow v University of Melbourne [2024] FCA 1140
Qube Ports Pty Ltd v McMaster [2016] FCAFC 123
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419
Roberts-Smith v Fairfax Media Publications Pty Ltd (No. 41) [2023] FCA 555
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62
Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456
Wong v National Australia Bank Limited [2021] FCA 671
Division: Division 2 General Federal Law Number of paragraphs: 182 Date of last submissions: 13 June 2025 Date of hearing: 5–7 May, 13 June 2025 Place: Melbourne Counsel for the Applicant: Mr Hooper Solicitor for the Applicant: Kelly Workplace Lawyers Counsel for the Respondents: Ms Pase Solicitor for the Respondents: Law Squared ORDERS
MLG 1277 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHRISTOPHER JUSTIN CLERKE
Applicant
AND: VORTEX AIRCRAFT MAINTENANCE PTY LTD
First Respondent
DAVID WOODLAND
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
9 OCTOBER 2025
THE COURT ORDERS THAT:
Declaration
1.On 1 June 2023 the First Respondent contravened s. 44 of the Fair Work Act 2009 (Cth) by failing to give the Applicant notice or pay the Applicant in accordance with s. 117(2) of the Fair Work Act 2009 (Cth).
Hearing as to penalties and consequential matters
2.The matter is listed for hearing as to penalty and any other consequential matters on 5 December 2025 at 10.00 am (on an estimate of half a day).
3.On or before 4.00 pm on 30 October 2025, the Applicant file an outline of submissions and any evidence on which he relies as to penalty and any other consequential issues.
4.On or before 4.00 pm on 20 November 2025, the First Respondent file an outline of submissions and any evidence on which he relies as to penalty and any other consequential issues.
Claim otherwise dismissed
5.Subject to reserving the parties’ liberty to apply as to costs after the making of any order and publication of reasons as to penalty and consequential matters, the Applicant’s claims are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
From 30 October 2017 until early 2023, Mr Clerke was the Chief Engineer of Vortex Aircraft Maintenance Pty Ltd (Vortex), an aircraft repair and maintenance business predominantly providing its services to Southern Airlines. Under Civil Aviation Safety Authority (CASA) regulations Vortex had to employ a Chief Engineer. As Chief Engineer, Mr Clerke led a small team of about four aircraft repair and maintenance employees.
It is common ground that Vortex dismissed Mr Clerke from his employment. Mr David Woodland, the Second Respondent, was Vortex’s owner and sole director. Mr Clerke reported to Mr Woodland. As is detailed below, I have found that Mr Woodland was Vortex’s sole decision-maker in the decision to dismiss Mr Clerke from employment.
In the circumstances of this case, the date of dismissal is jurisdictionally significant: Mr Clerke alleges he was dismissed on 20 April 2023 and Vortex alleges he was dismissed on 1 June 2023.
Mr Clerke alleges that by various emails he made six written “complaints” between 25 July 2021 and 24 April 2023 about various workplace issues (hereafter referred to as the First Complaint, Second Complaint, Third Complaint, Fourth Complaint, Fifth Complaint and Sixth Complaint). Mr Clerke’s email communications traversed various issues. He characterises his communications as “complaints” under s. 341(1)(c) of the Fair Work Act 2009 (Cth) because he contends they were in relation to unreasonable working hours and occupational health and safety issues (among others matters). Mr Clerke alleges that because of his “complaints” (or one or more of them) Vortex dismissed him from employment in contravention of the general protections under Part 3.1 of the FW Act.
In final submissions, Mr Clerke expressly abandoned any reliance on his Fourth Complaint (Ex A5, [70]). It is not necessary further to consider the Fourth Complaint. I will continue, however, to refer to the First, Second, Third, Fifth and Sixth Complaints as they were enumerated, and referred to, during the trial.
Vortex and Mr Woodland deny the allegations. Their defence has three main elements.
First, they say that because Mr Clerke made his application to the Fair Work Commission before he was dismissed, the court lacks jurisdiction.
Second, they say Mr Clerke has not proved that any of the First, Second, Third or Fifth Complaints was a complaint within the meaning of s. 341(1)(c) of the FW Act. The Respondents admit the Sixth Complaint, the final complaint dated 24 April 2023 from Mr Clerke’s lawyers about issues including Mr Clerke’s right to be paid whilst stood down, was a complaint within the meaning of s. 341(1)(c).
Third, they say that in any event they dismissed Mr Clerke because of performance concerns, not because of the complaints (or any of them). Among other performance concerns, Vortex says it dismissed Mr Clerke because as Chief Engineer he had failed to keep aircraft maintenance logbooks up-to-date.
ADMITTED CONTRAVENTION OF SECTION 44
As to a separate matter independent of the general protections claims, Vortex admitted that it contravened a provision of the National Employment Standards and thereby contravened s. 44 of the FW Act. I will return to next steps as to the admitted contravention below.
THE ISSUES FOR DECISION
Three main contested issues arise for decision:
(1)the first issue concerns the dismissal date and whether the court has jurisdiction. Section 370 of the FW Act prescribes the jurisdictional prerequisites to a general protections court application. It will be necessary to consider the interaction of ss. 365, 368(3)(a) and 370 of the FW Act. Suffice to say to introduce the issue, Mr Clerke – in his final submissions – alleged he was dismissed on or about 20 April 2023. He made his FWC application on 10 May 2023. Vortex says it dismissed Mr Clerke on 1 June 2023 on a date after he made his FWC application and submits that under s. 365(a) a person may apply to the FWC to deal with a dismissal dispute only if “a person has been dismissed” [emphasis added];
(2)the second issue is whether Mr Clerke’s communications are to be characterised as complaints within the meaning of s. 341(1)(c) of the Act, a matter for Mr Clerke to prove. There is no difficulty identifying the communications said to be “complaints”: each of the “complaints” except for the Sixth “Complaint” was an email Mr Clerke authored and the Sixth Complaint can be readily identified because it is a lawyer’s letter. The issue is one of the characterisation of those communications. Vortex denies that written communications of Mr Clerke between 25 July 2021 and 13 April 2023 are to be characterised as “complaints … in relation to his employment” under s. 341(1)(c) of the FW Act; and
(3)the third issue is why – for what reason or reasons – did Vortex dismiss Mr Clerke. If Mr Clerke proves that his communications were complaints within the meaning of s. 341(1)(c), by operation of the reverse onus under s. 361, Vortex must prove that it did not dismiss Mr Clerke because of the complaints (or any of them). It is common ground that a dismissal is an “adverse action” under s. 342 of the FW Act. If Mr Clerke proves that he made complaints within the meaning of s. 341(1)(c) unless Vortex proves that it did not dismiss Mr Clerke because of the complaints (or any one of them) the reverse onus under s. 361 operates so that it is presumed that the dismissal was for a prohibited reason – here a contravention of s. 340(1)(a) of the FW Act - because Mr Clerke made the complaints.
SUMMARY AS TO THE ISSUES FOR DECISION
In summary, I have found that Mr Clerke was dismissed on 1 June 2023. As a result, as to the first issue, I do not have jurisdiction as to his claim.
If I am wrong and in fact I have jurisdiction, as to the second issue, Mr Clerke’s communications are not to be characterised as complaints within the meaning of s. 341(1)(c) (except for the Second Complaint which I have found was a complaint within the meaning of s. 341(1)(c) and the Sixth Complaint which was admitted to be so.
If I am wrong about that and the communications other than the Second Complaint and the Sixth (admitted) complaint were complaints within the meaning of s. 341(1)(c), as to the third issue, Vortex has discharged its onus under s. 361. Vortex has proved that it did not dismiss Mr Clerke because of the First, Third or Fifth Complaints (which I found not to be complaints within the meaning of s. 341(1)(c)) or because of the Second Complaint or the Sixth Complaint (or any one of those communications). Vortex has proved that it dismissed Mr Clerke because Mr Woodland believed that Mr Clerke was underperforming as Chief Engineer particularly as to time management, workforce management and recordkeeping (notably as to the Chief Engineer’s duty to maintain up-to-date aircraft logbooks).
Except as to the First Respondent’s admitted contravention of s. 44 of the FW Act, I will dismiss the application.
My reasons follow.
STRUCTURE OF THESE REASONS
The structure of the balance of these reasons is as follows:
(1)the relevant people;
(2)the necessary background;
(3)jurisdiction;
(4)the six communications said to be “complaints” and – except for the Second Complaint and the Sixth Complaint – my conclusion that they are not complaints under s. 341(1)(c);
(5)the reason or reasons why Vortex dismissed Mr Clerke;
(6)the accessorial liability claim against Mr Woodland;
(7)whether it is useful or appropriate to calculate compensation on the basis that I am wrong; and
(8)next steps.
(1) WHO ARE THE RELEVANT PEOPLE?
Mr Clerke gave evidence on his own behalf and was the only witness in his own case.
The Respondents called the following witnesses:
(a)Mr David Woodland;
(b)Mr Colin Tucker, CEO of Vortex. As I have explained below, Mr Woodland was the sole decision-maker in the decision to dismiss Mr Clerke, such that it is Mr Woodland’s state of mind which is relevant. Mr Tucker’s involvement in the dismissal did not rise beyond any material threshold;
(c)Mr Avinesh Maharaj, Vortex’s current Chief Engineer, who replaced Mr Clerke in the role of Vortex’s Chief Engineer and is also a Licensed Aircraft Maintenance Engineer (LAME). Mr Maharaj commenced employment with Vortex as a LAME during Mr Clerke’s employment on 20 January 2022; and
(d)Mr Sampath Devamitta, Head of Maintenance Control, Southern Airlines, also a LAME. Mr Devamitta commenced employment in June 2022 during Mr Clerke’s employment (Ex CE-4, [16]).
(2) THE NECESSARY BACKGROUND
The contested issues for decision arise against the following – largely uncontentious – background. I note that I received into evidence under s. 191 of the Evidence Act 1995 a statement of agreed facts (Ex CE-4) and a joint chronology (Ex CE-5).
On 30 October 2017, Mr Clerke commenced employment with Vortex (Ex CE-4, [10]). Previously, he had worked at Qantas (Ex R7, [14]). As the Chief Engineer, Mr Clerke was the most senior employee in Vortex’s small maintenance team of about four employees. Mr Clerke reported to Mr Woodland ((EX R7, [10]). As of the date of his dismissal (whether that happened on 20 April 2023 or 1 June 2023), Mr Clerke’s annual salary approximated $155,000 (plus superannuation) (Ex CE-4, 12).
Relevant regulations administered by CASA require a business such as Vortex to employ a Chief Engineer. As Chief Engineer, Mr Clerke was Vortex’s most senior employee in the maintenance team. The maintenance team performed repair and maintenance work which included scheduled inspections and defect rectifications, routine and non-routine maintenance on aircraft. Vortex’s main customer was Southern Airlines (Ex R7, [12]). Between Mr Clerke’s engagement in 2017 and his dismissal in 2023, Southern Airlines’ fleet expanded from about 6 aircraft to 9 aircraft (Ex A1, [6]–[7]).
The “complaints”
On various dates between 25 July 2021 and 13 April 2023 Mr Clerke sent communications to different people within Vortex, including Mr Woodland. As noted, whether those communications are characterised as “complaints” under s. 341(1)(c), is a significant issue of dispute in the current proceeding. I have returned to the detail of those communications below. The communications – unsurprisingly enough – occurred in the context of many other issues arising in Vortex’s day-to-day operations.
Events proximate to the dismissal
Noting that the date of dismissal is disputed, at the outset, I wish to set out events proximate to the dismissal in a little more detail.
Aircraft logbooks are not up to date
On 5 April 2023 CASA representatives attended Vortex’s workplace in relation to an audit of Southern Airlines’ operations. Aircraft maintenance logbooks were not up-to-date.
On 12 April 2023 following the visit of CASA’s representatives to the workplace and the organisation’s knowledge that aircraft maintenance logbooks were not up-to-date, Mr Woodland sent an email to Mr Clerke titled “Priorities and Focus” (Ex A1, CJC-10) which read in its relevant part:
By the end of day tomorrow I want a report on:
•Which aircraft records are out of date
•By how much each aircraft' s records are out of date
•The reasons the aircraft records are out of date
•The steps to be taken to rectify the situation
•An exact timeline of when this will be achieved
As discussed everything else is under control and does not require input / attention This situation is a major risk to our business and must be dealt with as the only priority.
[Emphasis added]
On 13 April 2023 Mr Clerke responded to Mr Woodman’s email (and he characterises his response email as the Fifth “Complaint”) (Ex A1, CJC-11). His response answered some of Mr Woodland’s dot points which were included in the responsive email (emphasis added in bold below):
…
•By how much each aircraft’s records are out of date
Most records exist. Collating, error checking and scanning completed workpacks and transfer from active logs to the long term records is needed.
•The reasons the aircraft records are out of date
…
5.Long hours at work personally in support of Southern Airlines Ops, and very limited after hours LAME options to relieve me.
6.My family are already impacted greatly by my determination to do whatever it takes Monday-Friday to keep Ops going and my decision to quarantine weekends / public holidays as much as possible from further work commitments is essential to maintain any type of balance or sustainability.
7.Multiple errors in paperwork slow down proceeding of jobs. Parts not booked, GRN’s not provided, incomplete or out of category certification, transcribing part numbers incorrectly, log entries that have been placed in logbooks by others still containing errors or out of sequence. This list could keep going…
•The steps to be taken to rectify the situation
1. Look past the immediate pressure from Ops and structure deliberate offsite admin time as a regular feature of my week moving forward.
…
2. I am currently working long hours from home to bring records up to date.
3. Reduce planned leave and allocate time to continue this work remotely next week if needed.
•An exact timeline of when this will be achieved
1. Hard to put an exact time as each aircraft will present different issues and challenged. Best that can be offered is rolling updates as I progress, but I’d prefer to focus on the actual task, rather than spend excess time preparing updates.
From 13 April 2023 until 20 April 2023, Mr Clerke was absent from the workplace working remotely on updating aircraft logbooks from home (Ex CE-5; Ex R4, [13]). As he set out in his email, Mr Clerke’s position was that he was “currently working long hours from home to bring records up to date”. The evidence was that he worked 110 hours over 8 consecutive days to update the logbooks.
On 20 April 2023 Mr Clerke attended Vortex’s workplace and delivered the updated logbooks to Mr Devamitta (Ex A1, [36]; Ex R4, [14]). Mr Clerke and Mr Woodland did not meet face-to-face at the workplace on 20 April 2023. Mr Clerke’s attendance at Vortex on 20 April 2023 proved to be the last date on which Mr Clerke attended at Vortex’s workplace.
Mr Clerke then proceeded on pre-approved annual leave (Ex A1, [37]).
Three written warnings
On 20 April 2023, after Mr Clerke had proceeded on his leave, Mr Woodland emailed Mr Clerke on the subject “written warnings and ongoing employment” and attached three warnings to a single email. The warnings were dated 18, 19 and 20 April 2023 (Ex A1). Mr Woodland wrote among other matters that:
Attached are written warnings regarding major lapses in performance over the last couple of months (which are part of an ongoing trend that we have discussed before).
I would have preferred also to discuss these in person, but it seems you are going out of your way to not be in the Southern Airlines premises at the same time as I am.
You point to being overworked. having a lack of support and no time to perform the duties you have let lapse of late.
We reject this assertion. as you are observed to spend hours and hours each day at your desk and if you are not performing administrative duties in this time, I fail to see what productive tasks you could possibly be undertaking. You only seem to start working when you realise the day is slipping away.
We need to discuss these warnings and the ongoing feasibility of you fulfilling the Chief engineer role here at Southern airlines.
…
Please response [sic] with a meeting time as soon as possible
The “first written warning” letter included the following:
We have had discussions in the past regarding your performance in relation to time and task management, and you have been provided with strategies to try to help manage these shortcomings.
On the recent phase inspections (maintenance visits) for both VH-VSO and VH-YSO you were repeatedly asked for a timeline for the completion of the work, as the aircraft were required to support the Southern Airlines flying operations.
You gave several release times/dates to Southern Airlines operations but failed to meet these indicated times. The result of these continued missed timelines caused substantial financial impact to the group.
In the second written warning Mr Woodland – referred to his email dated 12 April 2023, extracted above – that he wanted a report “by the end of day tomorrow” and said that the warning resulted from the fact that he did not receive it:
You did not give a clear response to any of the requests for information (as required by the communication guidelines in Part 1.4 of the Vortex Aircraft Maintenance Procedures Manual). However independent inquiries uncovered the records were up to six months out of date. This is an extreme lapse in compliance with the CASA regulations and the procedures outlined in the Vortex Aircraft Maintenance Procedures Manual.
…
This situation is a major risk to the continued operation of the Southern Airlines group, a major dereliction of your duties (as required by the Vortex Aircraft Maintenance Procedures Manual) and unacceptable .
In the third written warning Mr Woodland wrote:
…
You have also been warned in the past about your lack of communication with upper management.
…
You have also previously said via email that you had a personal policy to walk away if voices get raised, the email in question reads:
“My new policy from this point fwd will always be to walk away if voices are raised, as don't want to respond out of frustration with something I might regret.”
While voices getting raised is no doubt uncomfortable, and even somewhat unprofessional, it is inevitable when management are continually frustrated by a lack of results and communication.
This lack of communication and apparent lack of accountability or participation in conflict resolution on your behalf is unfortunately not befitting of someone who is to hold an important management position within the Southern Airlines Group.
The evidence established that Mr Woodland’s quoted reference to Mr Clerke’s email – “[I] will always walk away if voices are raised” – was a reference to Mr Clerke’s Third “Complaint” made on or about 22 February 2023 that Mr Tucker had verbally abused him.
Events after 20 April 2023
On 21 April 2023 Mr Clerke’s evidence was that he started his annual leave (T142:40-42).
On 21 April 2023 (8.50am) Mr Clerke responded to Mr Woodland’s email of the previous day – 20 April 2023 – which had attached the three written warnings and requested a meeting. Mr Clerke did not respond in terms to the content of the written warnings. Mr Clerke’s response read in part as follows (Ex A1):
Your email is noted
…
I now therefore will not be available for meeting until Thursday 27th April. In the meantime, my expectation is to use time in lieu for this period away from work as compensation for the approx 110 hours worked in 8 days straight to comply with your request. Since the changes to my leave have negatively impacted my family I will be limiting email and phone interaction to create the space to focus on what they need at this time.
Please advise what time on Thursday will work to meet with Colin [Tucker] & yourself.
On 23 April 2023 Mr Woodland responded (Ex A1):
I think you misunderstand the situation here.
You are facing disciplinary action primarily stemming from your inability to manage yours or the team’s time. The end result of this was the aircraft records being completely non-compliant.
…
Therefore, take as much time as you need with your family, but it will be considered annual leave and you are also considered on stand down (on leave) until this situation is resolved one way or another.
Should the resolution to these warnings be termination. the notice period will be considered to have started effective the 20th.
By 24 April 2023, Mr Clerke had sought legal advice. On 24 April 2023, Mr Clerke’s lawyers sent the “Sixth Complaint”. It included the following:
…
Should you elect to terminate my client’s employment my client reserves his rights to assert this rights, including his right to seek injunctive relief.
…
In the meantime, my client's lawful expectation is that he is paid by you for the period his employment is suspended.
On 24 April 2023 a Mr Izak Pivac sent a group email as follows (Ex A1, CJC-17):
This is not easy news to advise but Justin Clerke is no longer going to be working for Southern airlines or Vortex and as such please do not discuss any company matters with him from this point forward.
Mr Woodland’s evidence was that Mr Pivac was not a Vortex employee and that he did not request or direct Mr Pivac to send an email in those terms (Ex R7, [75]). Mr Woodland deposed:
I asked Izak [Pivac] to inform the FCM Group that Justin [Clerke] was not to be contacted not that he was no longer employed with VAM. As at 24 April 2023, Justin [Clerke] remained on annual leave, although he had been stood down from his role of Chief Engineer by reason of his underperformance issues as set out in the three warning letters.
I accept Mr Woodland’s evidence that he did not direct Mr Pivac to send an email in these terms because he produced his own email to Mr Pivac (among others) sent before Mr Pivac’s email on 24 April 2023 which included the following:
Please be advised that Justin is currently not to be contacted in reference to any Company matters. He is not to be emailed, nor called regarding anything to do with Vortex Aircraft Maintenance or the Southern Airlines group.
Izak [Pivac],
Can you please inform FCM group?
That is, Mr Woodland had not authorised Mr Pivac to dismiss Mr Clerke from employment.
By 27 April 2023 the proposed meeting which had been previously raised had apparently fallen by the wayside. Neither party pursued the prospect of the meeting as to the warnings further.
In fact, the parties seemed resigned to the inevitability of the end of Mr Clerke’s employment. On 24 April 2023 Mr Woodland emailed Mr Clerke’s lawyers asking for a company car to be returned (Ex A1). On 29 April 2023 Vortex advertised for a Chief Engineer on Seek.com (Ex A2).
Thereafter, there seemed to be no further direct communications between the parties except for the issue of weekly payslips.
On 27 April 2023 Vortex paid Mr Clerke salary for 30.6 ordinary hours and 30.4 hours of annual leave. On 4 May 2023 Vortex paid Mr Clerke for 38 hours of annual leave.
On 10 May 2023, via his lawyers, Mr Clerke made an application to the FWC which alleged that he had been dismissed on 25 April 2023.
On each of 11, 18 and 25 May 2023 Vortex paid Mr Clerke one week’s annual leave.
On 1 June 2023 – the date which Vortex contends marks the date of dismissal – Vortex paid Mr Clerke 30.4 ordinary hours, 7.6 hours annual leave and approximately 506 hours of accrued but untaken annual leave, his remaining annual leave balance (Ex R8).
(3) THE DISPUTED DATE OF DISMISSAL AND WHETHER THE COURT HAS JURISDICTION
When did the dismissal occur?
Section 342 of the FW Act does not define “dismissed”. As to the definition of “dismissed”, the dictionary (s. 12) says: “see section 386”. Section 386(1) defines “dismissed” as follows:
(1) A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
I accept the Respondents’ submission that when Mr Clerke was dismissed is a question of fact.
The parties’ positions as to the date of dismissal changed over the course of the dispute. As noted, as of 10 May 2023, when he made his FWC application, Mr Clerke alleged the date of his dismissal was 25 April 2023. In Vortex’s response to the FWC application filed on 25 May 2023, it alleged that 25 April 2023 marked the date of Mr Clerke’s resignation and there was no dismissal (Ex CE-5).
In his final submissions at trial Mr Clerke submitted that the date of his dismissal was “on or about” 20 April 2023. By trial Vortex conceded that there had been a dismissal and said that it occurred on 1 June 2023.
I have traced above – and do not repeat – the sequence of events between 20 April 2023 (the date of dismissal for which the Applicant contends) and 1 June 2023 (the date of dismissal for which the Respondents contend).
I find that the date of dismissal was 1 June 2023. Although as I have already noted there was an air of inevitability about the dismissal by about 27 April 2023 – when both parties put to one side the notion of a meeting about the warnings and when Mr Clerke returned his car – or alternatively by two days later on 29 April 2023 when Vortex advertised for a new Chief Engineer – the dismissal had not yet occurred.
The dismissal did not occur on 20 April 2023. First, although it was common ground that 20 April 2023 was the last date on which Mr Clerke attended Vortex’s workplace, his own evidence was that he then proceeded on pre-approved annual leave (Ex A1, [37]). In fact, Mr Clerke’s position was that he was entitled to treat his pre-approved annual leave as time in lieu because he had worked 110 hours over 8 consecutive days between 13 April 2023 and 20 April 2023 to update the logbooks. It was not possible for Mr Clerke simultaneously to be on annual leave or on a period of time in lieu and to have already been dismissed. Second, the subsequent correspondence about a meeting about the warnings cannot be reconciled with an assertion that Mr Clerke’s employment was already at an end. Third, with reference to the letter of Mr Clerke’s lawyers dated 24 April 2023, they wrote that it was their “client’s lawful expectation is that he is paid by you for the period his employment is suspended” and they reserved their client’s rights “[s]hould you elect to terminate my client’s employment”. I cannot reconcile Mr Clerke’s position reserving his rights on 24 April 2023 if he was dismissed with a submission that he had already been dismissed. I note the absence of an assertion in his lawyers’ correspondence that Mr Clerke had been dismissed. Fourth, from 20 April 2023 until 1 June 2023, Vortex made weekly payments recorded and described in Mr Clerke’s weekly payslips as annual leave payments. Vortex’s continuing weekly payments of annual leave is irreconcilable with Mr Clerke already having been dismissed from employment. The weekly payments only ceased on 1 June 2023 when Vortex made a lump sum payment of 506 hours annual leave (more than 13 weeks’ salary) for accrued and unused annual leave. An obligation to pay accrued and unused annual leave arises when the employment ends under s. 90(2) of the FW Act.
To the extent that there are contra-indicators, there is no substantive suggestion that Mr Pivac had authority to dismiss Mr Clerke. Mr Pivac was not a Vortex employee. Any forensic significance of Mr Pivac’s email dated 24 April 2023 is outweighed by the content of Mr Woodland’s email to Mr Pivac on 24 April 2023. The advertising of the position on Seek.com speaks to the apparent inevitability of dismissal but does not establish a date of dismissal before the advertisement. Subject noting that whether there was a dismissal is a factual question under s. 386 not strictly a contractual question, Mr Clerke returned a car but did not prove that he had a contractual entitlement to a car such that Vortex’s request that he return it can be characterised as repudiatory of its obligations under a contract of employment, nor did Mr Clerke purport to accept the repudiation as bringing the employment to an end. The return of the car could coexist with the continuation of the employment because Mr Clerke was not then performing his duties. Mr Clerke submitted that “these events took place in a continuum of events sending a consistent message of dismissal from 20 to 29 April 2023” (Ex A5, [29]).
I accept that I must consider all the facts so as to isolate a date when the dismissal took effect. Even though it seemed inevitable that the employment would soon come to an end, I must still isolate the point of time on the “continuum” when the dismissal was effected. Vortex’s continuation of weekly annual leave payments up until 1 June 2023 assumes some primacy in my conclusion that the dismissal only occurred on 1 June 2025. It is accurate, to a point, to say that – as the Applicant submitted – that the termination date in payroll systems was a “clerical exercise only” (Ex A1, [30]) but it was that clerical exercise that crystallised the dismissal. I also say it was accurate only to a point to say the termination date on the payroll system was only a clerical exercise because on that date Mr Clerke also received a significant lump sum payment as to his accrued and unused annual leave, a payment which can is consistent with the continuation of his employment up until that date and its termination on that date.
Jurisdiction – First duty of the Court
Having found the dismissal occurred on 1 June 2023, my first duty is to determine whether I have jurisdiction (QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 at [27] and [92]). Further, the parties cannot consensually invest the court with jurisdiction or power it does not possess (Harris v Caladine (1991) 172 CLR 84, 133).
The provisions of the FW Act
As to the jurisdictional issue, I have already noted it would be necessary to consider the interaction of ss. 365, 366, 368(3) and 370(a) of the FW Act.
Section 365(a) is as follows:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person…. alleges that the person was dismissed in contravention of this Part
the person … may apply to the FWC for the FWC to deal with the dispute.
Section 366(1)(a) is as follows:
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect;
…
Section 368(1) and (3)(a) are as follows:
368 Dealing with a dismissal dispute (other than by arbitration)
(1)If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
…
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect;
…
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part
Section 370(a) is as follows:
370 Taking a dismissal dispute to court
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute.
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days;
[Emphasis added]
Case law
In Coles Supply Chain Pty Ltd v Milford(2020) 279 FCR 591; [2020] FCAFC 152 the Full Court noted at [54] that s. 365 “contains two criteria conditioning a person’s entitlement to make an application,” to the court as to a dismissal dispute. The Full Court said:
The first criterion is expressed in objective terms: the person has been dismissed. The second criterion is also expressed in objective terms, albeit by reference to the fact that an allegation has been made that “the dismissal” was in contravention of a provision of Pt 3-1. The word “alleges” is found in the criterion in s 365(1)(b), but not in the criterion in s 365(1)(a). In its ordinary meaning, the criterion in s 365(1)(a) will be fulfilled if there has been a dismissal in fact.
[Emphasis added]
Further, whether there has been a dismissal under s. 365 is a dispute “that must be resolved before the powers conferred by s. 368 can be exercised at all” (Milford, [67]).
In Dilena v Dowell’s Traffic Management Pty Ltd [2012] FMCA 60 Jarrett FM (as His Honour then was) found that the existence of a FWA (now FWC) certificate was of no effect if the FWA (now FWC) had no “statutory mandate” to deal with the dispute. The certificate in Dilena purported to be issued under s. 369 (the analogue provision to s. 368 then in force) but His Honour said: “although [it] purports to be a certificate issued pursuant to s. 369 of the Act, it is not”. His Honour reasoned at [23]:
The existence of a certificate issued pursuant to s.369 of the Act is a necessary condition to the jurisdiction of this Court in this application s.371(1)(a) of the Act. Its absence is fatal to the application because the jurisdiction of this Court is not engaged.
Analysis
It was common ground that Mr Clerke made his application to the FWC (purportedly) on 10 May 2023 (Ex CE-5). It was also common ground that on 12 July 2023 the FWC issued a certificate (purportedly) under s. 368(3)(a) and that Mr Clerke commenced the court proceeding within 14 days of the issue of that certificate. As I set out above, I have found that the date of dismissal was 1 June 2023.
My analysis is that Mr Clerke’s window to apply to the FWC opened on 1 June 2023 (the date of dismissal) for a period of 21 days under s. 366. He was not able to apply earlier because before 1 June 2023 he was not a person under s. 365(a) who “has been dismissed”. As was observed in Milford at [54] the issue was whether there had been a dismissal “in fact”. It was insufficient that Mr Clerke alleged that he had been dismissed, a conclusion that is reinforced by the different statutory language in s. 365(b) which refers to an allegation of dismissal, in contrast to the statutory language in s. 365(a) which refers only to dismissal.
The issue of a certificate under s. 368 is premised on circumstances in which “an application is made under section 365” which in this case it was not because Mr Clerke had not yet been dimissed. Further, the entitlement to take a dismissal dispute to court under s. 370 is premised on a person being “entitled” to apply under section 365”. As the Full Court said in Milford at [67] the FWC; certificate-issuing powers under s. 368 cannot be exercised at all without an application under s. 365. As of the date of the application on 10 May 2025 – Mr Clerke was not entitled to bring a s. 365 application. To the extent that the Applicant submitted that the issue of a certificate cured any anterior problem with the s. 365 application (Ex A5, [34]) I do not accept the submission. I accept the Respondents’ submissions that the FWC “had jurisdiction to issue a valid certificate or did not” (see, Dilena). In the absence of a valid s. 365 application, the FWC could not issue a valid certificate, because it lacked the necessary statutory mandate to do so. The parties cannot agree to confer jurisdiction upon me, and I cannot waive this issue.
I do not have jurisdiction as to Mr Clerke’s claim.
(4) THE SIX COMMUNICATIONS SAID TO BE “COMPLAINTS” UNDER S. 341(1)(C)
It was common ground that whatever determination I made as to jurisdiction, I should deal with Mr Clerke’s substantive application.
I turn therefore to the issue of whether the First Complaint, Second Complaint, Third Complaint, or the Fifth Complaint are “complaints” within the meaning of s. 341(1)(c).
The Applicant must establish a matter of objective fact that he made a complaint within the meaning of s. 341(1)(c)
Mr Clerke must prove that the communications were complaints within the statutory definition. As Jessup J said in Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62 at [119] “the party making an allegation that adverse action was taken “because” of a particular circumstance needs to establish the existence of the circumstance as an objective fact”. In this case, Mr Clerke must prove that as a matter of objective fact he made complaint(s) within the meaning of s. 341(1)(c) before the reverse onus under s. 361 is engaged.
A complaint must as a matter of substance be an expression of discontent which seeks consideration, redress or relief whatever form of words are used
Dodds-Streeton J in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 said at [626]:
…it is, in my view, unnecessary that the employee, in making a complaint that he or she is able to make, expressly identifies the communication as a complaint or grievance, or uses any particular form of words. It is necessary only that relevant communication, whatever its precise form, would be reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint.
In Alam v National Australia Bank Ltd (2021) 288 FCR 301; [2021] FCAFC 178 at [59] a Full Court said that the “term ‘complaint’ connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved”. It is “more than a request for assistance and should state a particular grievance or finding of fault”. The “characterisation of the communication as a complaint is to be determined as a matter of substance, and not of form”.
An employee’s complaint is not at large but must be made to protect or vindicate some right or entitlement
Further, as Snaden J observed in Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 at [150] (following Alam, at [64]–[97]) Mr Clerke must demonstrate that the complaint:
was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.
I note, however, that the words “in relation to” in s. 341(1)(c)(ii) remain words of wide import and should not be constricted beyond the limits found in the nature and purpose of the legislation which includes the protection of workplace rights (Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456, [41]).
The Respondents concede that they received the emails said to contain the First Complaint, the Second Complaint, the Third Complaint, the Fifth Complaint and the letter containing the Sixth Complaint (noting that the Applicant no longer relies upon the Fourth Complaint). As I have noted, the Respondents deny that the First Complaint, the Second Complaint, the Third Complaint or the Fifth Complaint are properly characterised as complaints under s. 341(1)(c).
By reference to the statements of principle above (drawn from Shea, Alam and Messenger), I must analyse each “complaint” as to whether, in fact:
(a)as a matter of substance, it was an expression of discontent which sought consideration, redress or relief whatever form of words were used; and
(b)whether it was made to protect or vindicate some right or entitlement.
First “Complaint” – 25 July 2021: Long hours
Mr Clerke’s First Complaint (ASOC, 8[a]) is pleaded as follows:
On 25 July 2021 he emailed the Respondent referring to the long hours and consuming nature of his role
The First Complaint must be placed in its proper context.
On 23 July 2021, Mr Woodland met with Mr Clerke and said he agreed to increase Mr Clerke’s salary to $140,000 annually and backdate the pay increase to FY2021 (Ex R7, [31]). Mr Woodland also said (and I accept) that he discussed with Mr Clerke “the personal impact inefficiencies in the maintenance team” had on him and Mr Tucker (EX R7, [33]). Before and after the meeting, there was an exchange of emails between Mr Clerke and Mr Woodland.
On 24 July 2021 Mr Clerke emailed Mr Woodland as follows (Ex A1, “CJC-3”).
Thanks for the time you and Colin [Tucker] made to meet with me yesterday
…
I remain committed to supporting the group operations in every way possible and as such yesterday’s offer to increase my salary from the existing S110K p/a to S140K p/a including an offer to backdate this for FY2021 appreciated.
On 24 July 2021 Mr Woodland responded. Among other matters, Mr Woodland wrote that he was concerned about Mr Clerke’s “on-floor” management as follows (Ex A1, CJC-4):
As identified, the deployment or misdirection of your particular skill set, and lack of “on-floor” management seems to be a major contributor to the inefficiencies within VAM, and I have been working, since our meeting Friday, on methods of getting those aspects back under control.
…
… but we need to make the day-to-day utilisation of your skills much more efficient, so that you are not forced to do the “bread and butter” stuff when you should be enjoying personal time with your family etc
On 25 July 2021 Mr Clerke wrote a further email to Mr Woodland. Mr Clerke characterised his email sent on 25 July 2021 as his First Complaint (Ex A1, CJC-5). In its relevant part the email was as follows:
I think we are largely on the same page and do understand the significant personal sacrifices involved. My own family would attest to the long hours and consuming nature of my job day in and day out. The added pressure that you and Col [Tucker] have, placing your homes on the line to make things work ramps things up to a whole new level beyond anything I have to deal with! For the record, I would dispute the (possibly unintentional) implication that my above and beyond efforts are mainly in relation to exceptional circumstances, given the hours and efforts I commit to keeping things going at VAM on a daily basis.
I do however wholeheartedly welcome any initiatives that allow me to adopt a more 'hands-on' approach and agree that having systems in place to reduce administrative burdens will not only free me up to work directly on billable tasks, but also have a flow on effect of keeping others in the VAM team 'on-task' too. It has been a long running request of mine to have suitable admin support, which would free me up to spend more time on the tools, utilising my quals and skill s more effectively. Looking forward to working together with everyone to make something profitable and special.
[Emphasis added]
Context is all-important in characterising whether an employee has made a complaint under s. 341(1)(c). In context, the Applicant in his First “Complaint” was grateful for the backdated pay increase, communicated his understanding of Mr Woodland and Mr Tucker’s “personal sacrifices” emphasised his own long hours and believed that he and Mr Woodland were “largely on the same page”. His passing reference to “long hours and consuming nature of my job” and for request of mine [for] “suitable administrative support” in the context of this email exchange does not constitute a complaint.
It is not an expression of “grievance or finding of fault”. The Applicant does not seek relief or redress. He does not seek any action, response or consideration.
Doubtless, it may be open to an employee to be able to make a complaint about long hours which is a s. 341(1)(c) complaint. Such a complaint may have the necessary instrumental underpinning in a contract of employment, the National Employment Standards or OHS legislation. It is not conclusive one way or another as to whether Mr Clerke’s email was the first in the sequence of emails. The statute does not invite a focus on whether a complaint is made “defensive[ly]” or otherwise.
In context, I accept the Respondents’ submission that the Applicant’s First “Complaint” is not a complaint. His comment about long hours is “simply an observation in the context of a back-and-forth discussion in an email chain about efforts be made by all parties in the context of increased salary being offered to the applicant” (Ex R11, 18(c)).
The Applicant has not proved that his First “Complaint” was as a matter of substance an expression of discontent which sought consideration, redress or relief. Further, he has not proved that he made the communication to protect or vindicate some right or entitlement. To the extent that he was aggrieved about a lack of administrative support he was not vindicating a right or entitlement. The Applicant has not proved that he exercised a workplace right by making the First “Complaint” within the meaning of s. 341(1)(c).
Second “Complaint” – 8 August 2021: A complaint about long shifts and health and safety
Mr Clerke pleaded his Second “Complaint” as follows (ASOC, 8[b]):
On 8 August 2021 he emailed the Respondent referring to his team being expected to work multiple ridiculously long shifts that were a danger to their life and health and completely outside reasonable OH&S limits;
Mr Clerke’s email sent on 8 August 2021 was part of a longer sequence of emails (the Respondents noted the chain comprised 16 emails) between 16 July 2021 and 8 August 2021 (Ex R1) about the “LCE Project”, which involved the modification of an existing Southern Airlines aircraft (T98:L16).
The email chain commences with Mr Clerke’s expression of concern that “I am sure everyone is aware of the pressing need to complete LCE”. Mr Clerke agreed that there was lost profit opportunity for every day that the aircraft sat grounded, unable to be used (T103:L12–17).
Mr Stanley Edoni, the LAME who was working on and overseeing the LCE project, sent various updates between 19 July 2021 to 7 August 2021 to the effect that progress was being made on the LCE Project.
On 7 August 2021 Mr Tucker asked: “have we got an anticipated date for a test flight?” Mr Woodland replied (Ex R1):
I have a better idea.
Test flight is end of next week, Friday the 13th …
… I don’t want to hear excuses of hold ups due to anything except the hangar burning down. This project has dragged on way too long, and is not somebody’s tinkering project in their garage, it is costing money, and losing opportunity every day it sits in the hangar.
Friday, next week.
On 8 August 2021, Mr Clerke emailed Mr Woodland and Mr Tucker (copying others). In its relevant part the email said to constitute the Second “Complaint” was as follows (Ex A1, CJC-6):
As can be seen from Stan [Edoni’s] provided list, LCE is now close to complete.
…
I too will devote my attention to making LCE happen as quickly as possible but have commitments to keep YSOs project moving forward and the rest of the fleet flying at the same time. Right from the outset, however, despite everyone’s desire to finishing LCE ASAP, the one thing to put on the public record is that I will not condone a repeat of what happened with YSO back in April, where my team was expected to work multiple ridiculously long shifts that were quite frankly a danger to their own life and health and completely outside any reasonable OH&S limits in order to meet targets that were imposed on them at that time. This type of practice cannot be allowed to become a part of our ongoing company culture.
[Emphasis added]
During cross-examination, Mr Clerke accepted that he saw Mr Woodland’s email as a criticism of him as he had oversight of the LCE Project (T103:L39–40) and felt the need to defend the team as “they were working as hard as they possibly could to get this job done” (T103:L43–44). Mr Clerke further conceded that the 8 August 2021 email was not drafted with the purpose to bring about cultural change in the workplace (T10:L6–7). He did, however, continue (T104:8–10):
it was drafted to say I was very concerned that we were going to be just repeating pressure beyond and pushing people beyond OH&S limits again.
The Respondents noted that the context was Mr Clerke was providing an “operational update … about the progress of the project on foot”. The Respondents also noted that the email “was sent in direct response to criticism being levelled at the applicant by his manager about long delay on the LCE project and was sent in a defensive attempt to justify that delay” in a timeframe when Mr Woodland had expressed some concerns about the Applicant’s performance: namely, in the emails as to the First “Complaint” as to a “lack of on floor management” (Ex A1, CJC-4).
Nonetheless, the emphasised words above constitute the Second Complaint as a complaint within the meaning of s. 341(1)(c).
As a matter of substance, the Applicant communicated an expression of discontent which sought consideration, redress or relief that Vortex ought not to expect him to work unreasonably long hours to complete the LCE Project whatever may have been commercially desirable. It was also a communication made to protect or vindicate a right or entitlement as to occupational health and safety, in the form of reasonable working hours. Mr Clerke communicated by the Second “Complaint” that expectations as to an earlier project as to “YSO” in April 2021 were a “danger” and expressly wrote “outside any reasonable OH&S limits”.
That was an “expression of grievance” underpinned by an entitlement or right under OHS legislation. Under s. 21 of Occupational Health and Safety Act 2004 (Vic) (OH&S Act) as in force at the relevant time an employer “must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health”. An employee had a duty under s. 25 of the OH&S Act to “take reasonable care for his or her own health and safety”. In McMaster v Qube Ports Pty Ltd [2015] FCA 1385 (reversed on appeal on other grounds in Qube Ports Pty Ltd v McMaster [2016] FCAFC 123) North ACJ said at [153]:
Reasonable care may require a person to register a complaint with an employer over a matter of safety, raise a warning or take a stand in protest over safety matters.
In Shea, Dodds-Streeton J said that the grievance must be “genuinely held” (Shea, [29](b)). Mr Clerke’s communication was the expression of a grievance that he and the maintenance team had previously been directed to work unsafe hours and ought not again work hours that created a danger to their safety. I do not accept the Respondents’ submission that because Mr Clerke in August 2021 referenced events some months earlier in April 2021 that I ought to conclude that his complaint was not genuinely made, or his grievance was not genuinely held.
Mr Clerke has proved that the Second Complaint was a complaint within the meaning of s. 341(1)(c).
Third “Complaint” – 22 February 2023: Complaint that he had been subjected to abuse by Mr Tucker
Mr Clerke’s Third “Complaint” was pleaded as follows (ASOC, [8]):
On 22 February 2023 he emailed the Respondent to the effect that he had unfairly and in an unacceptable manner been subjected to abuse by the Respondent’s CEO in relation to his duties as Chief Engineer;
In February 2023, Vortex required an urgent part – a bearing – to service an aircraft (VSO) (Ex R7, [52].
Mr Clerke deposed in his trial affidavit (Ex A1, [26]):
On 22 February 2023 Colin [Tucker] approached me during an informal meeting of key management personal at the Moorabbin site and started yelling and swearing at me in front of a group of people in the same office, including one of our survey customers. I was embarrassed that he would treat me like that and appalled that he would behave in such a fashion. So as to bring the incident to an end, I stated to him that I was walking away, and did so.
Mr Clerke immediately sent an email on 22 February 2023 to Mr Tucker (and copied Mr Woodland) as follows (Ex A1 “CJC-7”):
This week sux and we all know it and are all busting out guts to resolve issues.
My new policy from this point fwd will always be to walk away if voices are raised, as I don’t want to respond out of frustration with something I might regret.
Bottom line regarding the bearing in question is that it will not be the limiting factor with returning VSO to service.
In his evidence, Mr Clerke characterised Mr Tucker’s behaviour as follows: “Colin [Tucker]’s behaviour creates an unsafe work environment and, as such, I will remove myself from that environment when it is unsafe” (Ex A1, [27]). Mr Clerke’s evidence added details about his concerns about Mr Tucker’s behaviour creating an unsafe work environment which he did not write down in the email dated 22 February 2023. As the Full Court said in Alam, a complaint should state a particular grievance. I accept the Respondents’ characterisation of the email that it commences with Mr Clerke “lamenting with Mr Tucker”… “this week suxs”. Mr Clerke stopped short of stating a particular grievance that he considered that the raised voices created unsafe workplace. Doubtless repeated raised voices may create an unsafe work environment and may be the subject of a s. 341(1)(c) complaint but Mr Clerke’s email dated 22 February 2023 does not express that grievance. The characterisation of the 22 February 2023 email as a “complaint” is an after the event re-characterisation of the email he in fact wrote.
The Applicant has not proved that his Third “Complaint” was as a matter of substance an expression of discontent as to which he sought consideration, redress or relief. Further, he has not proved that the communication was made to protect or vindicate some right or entitlement. The Applicant has not proved that he exercised a workplace right by making the Third “Complaint” within the meaning of s. 341(1)(c).
Fourth “Complaint” – 24 March 2023: Engineer duty times pushed and work expectations not sustainable
I repeat that Mr Clerke expressly submitted that he did not rely on the Fourth “Complaint” in his final submissions. It is not necessary to consider it further (Ex A5, [70]).
Fifth “Complaint” – 13 April 2023: A complaint about long hours
Mr Clerke’s Fifth “Complaint” was pleaded as follows (ASOC, 8[e]):
On 13 April 2023 he emailed the Respondent referring to long hours at work, limited relief options, negative impacts on his family from the hours of work and working long hours from home to update records.
I have traversed in some detail above the events proximate to Vortex’s dismissal of Mr Clerke from employment. I recap those events as follows.
On 5 April 2023, shortly before the date of the Fifth “Complaint”, CASA representatives had attended at the workplace, and it became apparent to Mr Woodland that there was an issue with aircraft maintenance logbooks not being up-to-date. I have set out in full above Mr Woodland’s email dated 12 April 2023 in which he said that he wanted a report by “the end of day tomorrow” about “which aircraft records are out of date” and “the reasons the aircraft records are out of date”. Mr Woodland wrote “this situation is a major risk to our business” (Ex A1, CJC-10). On 13 April 2023, the Applicant sent a responsive email to Mr Woodland – the Fifth “Complaint” – which I have also traversed above in which he (among other matters) wrote that there were “long hours at work” and “very limited after-hours LAME options to relieve me”. He wrote that he was seeking to quarantine weekends and public holidays from further work commitments to maintain some balance in his life and that he was “currently working long hours from home to bring records up to date” (Ex A1, CJC-11). Mr Clerke concluded his email:
Do we have any word on when CASA will return?
In his email, Mr Clerke offers an explanation as to why the logbooks are out of date including that he had been working long hours and that he had insufficient administrative or engineering support. In context, however, I accept the Respondents’ submission that Mr Clerke was not seeking “consideration, relief or redress” or even making an expression of grievance as to that matter. He recognised that there was a logbook issue, it needed to be fixed before CASA returned and he was working long hours to fix the problem. That was the substance of his communication on 13 April 2023.
The Applicant has not proved that his Fifth “Complaint” was as a matter of substance an expression of discontent as to which he sought consideration, redress or relief. Further, he has not proved that the communication was made to protect or vindicate some right or entitlement. The Applicant has not proved that he exercised a workplace right by making the Fifth “Complaint” within the meaning of s. 341(1)(c).
Sixth “Complaint”– 24 April 2023: A letter from Mr Clerke’s solicitors
Mr Clerke pleaded his Sixth “Complaint” as follows (ASOC, [13]):
On 24 April 2023 the Applicant’s solicitors wrote to the First Respondent complaining (the Further Complaints) inter alia that the First Respondent:
a. had misled the Applicant about his right to be paid whilst stood down; and
b. had given the Applicant unfair and unlawful warnings in relation to his employment.
The Respondents admit that the Applicant’s solicitors emailed Mr Woodland, attaching a letter dated 24 April 2023 (Defence, [13]).
Mr Clerke’s lawyer’s letter dated 24 April 2023 reads in part as follows (Ex A1, “CJC-15”):
On 20 April 2023 Mr Clerke was sent correspondence from you dated consecutively the 18, 19 and 20 April 2023. Each letter purports to be a warning about his employment capacity, namely “time and task management” (collectively “the Warnings”).
My reading of the Warnings is that you are intending to use them as a device to terminate my client's employment, which is both unfair and unlawful. It is unfair because you have not allowed my client a reasonable amount of time to address the capacity issues that you have identified. It is unlawful because I believe that you are seeking to terminate my client’s employment to avoid paying him his workplace right to a redundancy
…
Should you elect to terminate my client’s employment my client reserves his rights to assert this rights, including his right to seek injunctive relief.
I further note that in your email to my client on 23 April 2023 you have made several misrepresentations about my client’s workplace rights, namely that (collectively “the Misrepresentations”):
a. Notice on termination can be retrospective to the date employment is suspended; and
b. That you can “stand-down” my client’s employment and make payment during the stand down period by way of my client’s accumulated annual leave.
My client further reserves his rights against Southern Airlines and you personally in relation to the Misrepresentations and your breaches of section 345 of the Fair Work Act 2009. In the meantime, my client's lawful expectation is that he is paid by you for the period his employment is suspended.
The Respondents admitted that the Sixth Complaint was a complaint within the meaning of s. 341(1)(c) of the Act.
Conclusion
Mr Clerke has proved that the Second Complaint and the Sixth Complaint were complaints within the meaning of s. 341(1)(c). Mr Clerke no longer relies on the Fourth Complaint. Mr Clerke has not proved that the First Complaint, Third Complaint or Fifth Complaint were complaints within the meaning of s. 341(1)(c).
(5) DID VORTEX TAKE ADVERSE ACTION AGAINST MR CLERKE BECAUSE OF THE COMPLAINTS OR ANY OF THEM?
Mr Clerke has proved that the Second Complaint and the Sixth Complaint were complaints within the meaning of s. 341(1)(c).
The reverse onus
Under s. 361 it is “presumed” that Mr Clerke was dismissed because of the Second Complaint and/or the Sixth Complaint unless Vortex proved that it did not dismiss Mr Clerke because of either the Second Complaint or the Sixth Complaint.
Under s. 361, the “central question remains why was the adverse action taken?” (Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, [2012] HCA 32, [44]). Under s. 360, the prohibited reasons - the complaints or either of them - need only be one of multiple reasons but must be a “substantial or operative factor” or an “operative or immediate reason” for dismissal. (Barclay, [62], [104], [140]).
The decision-maker
In Pilbrow v University of Melbourne [2024] FCA 1140 Snaden J held at [142] that an “essential prerequisite” for an employer to discharge the presumption in s. 361(1) is for the employer to prove “how and by whom” the decision to dismiss the relevant employee, here Mr Clerke, was made. In Pilbrow, Snaden J observed “at least insofar as concerns the conduct of bodies corporate” (at [77]) a court must interrogate not only the state of mind of the decision-maker “but also that of others whose contributions to [the adverse action] rose beyond a threshold level” variously described as ‘indispensable’, ‘significant’, ‘plainly important’, ‘major’, ‘substantial’ or ‘essential’ (Pilbrow, [78]).
In this case, it is possible to “isolate the particular decision-maker” (Pilbrow, [142]) in the decision to dismiss Mr Clerke as being solely Mr Woodland.
Mr Colin Tucker was Vortex’s CEO. He did not, however, have a ‘major’, ‘substantial’ or ‘essential’ role in the decision to dismiss Mr Clerke. Ultimately, the Applicant did not contend otherwise. In closing submissions, I had the following exchange with the Applicant’s counsel (T348:L11–16):
HIS HONOUR: My question really, [counsel for the applicant], is do I have to decide whether Mr Tucker was materially involved the decision-making process, or do you accept that it’s only Mr Woodland’s state of mind I need to interrogate.
COUNSEL: Yes. Look, I think for the purposes of this applicant, it’s just Mr Woodland.
The Respondents’ positive case: it dismissed Mr Clerke for perceived poor performance
Vortex ran what might be described as a positive and negative defence to Mr Clerke’s claims.
I have found the dismissal occurred with effect on 1 June 2023, when Vortex paid a lump sum as to Mr Clerke’s accrued and unused annual leave.
I accept the Respondents’ submission, however, that Mr Woodland had formed a “strong view … at an earlier point in time that the applicant was no longer capable to perform and hold the Chief Engineer role” (Ex R11, [33]). I have already noted that Mr Clerke did not attend at Vortex’s workplace after 20 April 2023 and was on leave after that date until 1 June 2023.
In summary, I find that Mr Woodland dismissed Mr Clerke because of the reasons set out in the three written warnings attached to his letter dated 20 April 2023.
Mr Woodman genuinely had the view that Mr Clerke’s performance was unsatisfactory because of concerns about “time and task management” (first warning letter), about not keeping the aircraft logbooks up-to-date (second warning letter) and about “lack of communication with upper management” (third warning letter) each of those matters being important parts of the Chief Engineer’s position.
On 5 April 2023, after the attendance of CASA representatives at the workplace, senior managers at Vortex knew that aircraft maintenance logbooks were not up-to-date. An important email in this case was Mr Woodland’s email dated 12 April 2023 titled “Priorities and Focus” the full text of which is set out above. I accept that Mr Woodland’s statements in that email about his concerns about “which aircraft records are out of date” and “by how much each aircraft records are out of date” and that “this situation is a major risk to our business and must be dealt with as the only priority” were statements genuinely made and reflected his state of mind when he wrote the email (Ex A1, CJC-1).
After that date, Mr Clerke worked from home from about 13 April 2023 – 20 April 2023 to bring the logbooks up-to-date. An indication that the logbooks were significantly out of date was Mr Clerke’s own evidence that it required 110 hours worked over eight consecutive days to bring the logbooks up to date.
As to the genuineness and strength of Mr Woodman’s concern, Mr Woodman said, “I was concerned for VAM a business because we dropped the ball on a recordkeeping” and because he was also involved in “Southern airlines… we stood real potential for our fleet to get grounded” (T292:L13–15)
I asked Mr Woodman about his state of mind at this time. He answered in a striking way (T:295:L31–34):
from the moment that I knew that we were wildly non-compliant on our logbooks, he [Mr Clerke] was a dead man walking, he was gone. Under performance had got to it. Now, from a mitigation point of view, I couldn’t get rid of him on the spot, because I needed my logbooks up to date.
[Emphasis added]
Mr Woodland said that there was “continued underperformance” from Mr Clerke which was “unsustainable” (T295:L14, 16–17).
Mr Woodland also said in his evidence (Mr Woodland, XX’N, T296:31–34):
COUNSEL: So, really, anything that happens after 12 April is irrelevant to what is going to be the ultimate outcome, and that is [Mr Clerke] being dismissed; correct?
MR WOODLAND: In my mind, it was only going to end one way. I couldn’t see anything that he could say to change my mind, although he avoided having a discussion with me from that point forward
Mr Clerke deposed that he had “never been counselled by Mr Woodland about being behind on my deliverables” (Ex A1, [18]). Mr Clerke accepted that Mr Woodland had, however, raised underperformance issues with him going back to July 2021. I extracted above that as early as 24 July 2021 Mr Woodland had written to Mr Clerke as to a “lack of “on-floor” management [as a] major contributor to the inefficiencies within VAM” (Ex A1, CJC-4) Mr Clerke accepted that Mr Woodland had expressed disappointment and annoyance that the timeline on the VH-VSO project had blown out (T94:L14–20). There was also the following evidence (T96:L9-10):
COUNSEL:[Mr Woodland] did express frustration with you about all the unmet deadlines on those projects that I’ve taken you through, didn’t he?
MR CLERKE: There have been – yes, there were informal discussions on those.
In Khiani v Australian Bureau of Statistics [2011] FCAFC 109, a Full Court held at [31] that in a general protections application it is not necessary for an employer to prove that the reasons for which it acted were procedurally or substantively fair. The Respondents need not prove that the issues set out in the warning letters about concerns about “time and task management” (first warning letter), about not keeping the aircraft logbooks up-to-date (second warning letter) and about “lack of communication with upper management” (third warning letter) provided sound, defensible or well-founded reasons for Mr Clerke’s dismissal as may be the relevant inquiry in an unfair dismissal case in the FWC under Part 3.2 of the FW Act. It may be, however, that if the reasons a decision-maker advances for having acted as he did are illogical or irrational, do not withstand scrutiny or are formed “wrongly or unfairly”, the court should infer that the decision-maker did not in fact form those opinions or act because of the reasons advanced (Wong v National Australia Bank Limited [2021] FCA 671, [83]).
In opening the case, the Applicant submitted that “the performance issues that are put forward [by the Respondents as a reason for dismissal] are a furphy and that the real reason or reasons for dismissal or otherwise” (T32:L6–7). In closing submissions, the Applicant said that the “negative picture” of the Applicant’s performance the Respondents’ witnesses painted was “stretched or exaggerated” (Ex A5, [6]). I do not accept the submission that the stated performance concerns were a “furphy” or “stretched of exaggerated” such that they were not the real reasons for dismissal.
At one point in his closing submissions, in discussing the Fifth Complaint, the Applicant referred to Mr Woodland’s evidence about the 13 April 2013 email (Ex R7, [80]):
I considered [Mr Clerke] was attempting to make excuses for his underperformance with respect to the CASA Audit and that those excuses were either incorrect or ingenuine because [Mr Clerke’s] … time management for the completion of his very important administrative tasks was entirely a matter within his control.
The Applicant submitted that Mr Woodland’s criticisms lacked a sound, defensible or well-founded foundation and Vortex did not afford Mr Clerke sufficient administrative or LAME support and subjected him to unrealistic expectations. It is unnecessary to decide. If I am to reject Mr Woodland’s stated reasons, I must reject that he genuinely held those views and in fact he gave his evidence that he held those concerns merely to mask the fact that the real reasons for the dismissal were Mr Clerke’s complaints. I do not accept this submission.
To the contrary, I accept that the reasons Mr Woodland gave for the dismissal were in fact the reasons for which he acted. That Mr Woodland would be highly concerned about the Chief Engineer’s failure to maintain up-to-date aircraft logbooks and regard such a failure as a serious matter was completely credible because of the self-evident importance of up-to-date maintenance records for aircraft for safety and regulatory reasons in an aircraft maintenance business. A conclusion that his views were genuinely held also derived support from the fact that his views were corroborated by other senior maintenance employees: namely, Mr Maharaj and Mr Devamitta.
Mr Maharaj and Mr Devamitta (themselves both LAME’s) both gave evidence that supported that there were real and substantive issues with the logbooks in this business. Mr Maharaj deposed (Ex R5, [10]) that:
[Mr Clerke] did not keep up-to-date records and logbooks of the aircraft VAM was maintaining which was of significant concern to me. This meant that aircraft were being released from maintenance and permitted to return to operation without the relevant records being up-to-date. I was not comfortable with the risk this carried.
[Emphasis added]
Mr Devamitta said as to the logbooks in April 2023 (T180:L8–10):
“we really wanted to come out of this problem because somebody else will come from outside, finding out and grounding the fleet, I mean, will be a disaster”.
[Emphasis added]
Direct testimony from the decision-maker as to why the adverse action was taken can discharge the burden imposed by s. 361 (Barclay, [45]; [71]). I accept Mr Woodland’s direct testimony. It is supported by contemporaneous documents, notably his email dated 12 April 2023. It is rational and logical that the owner and director of an aircraft maintenance business would be seriously concerned about logbooks not being up-to-date. Other senior employees, namely Mr Maharaj and Mr Devamitta, supported Mr Woodland’s testimony about the seriousness of the issues involved. It is a substantial finding for me to reject the evidence of each of Mr Woodland, Mr Maharaj and Mr Devamitta and to find that none of those genuinely held the concerns they professed to hold. I do not so do. I accept Mr Woodland as the decision-maker in fact held the negative opinions he professed to have about Mr Clerke’s performance and in fact he acted to dismiss Mr Clerke for those reasons (see: Wong, above).
The Respondents’ negative case
The Respondents also disavowed that any of the First, Second, Third, Fifth or Sixth Complaints formed a substantial or operative reason for dismissing Mr Clerke.
Previously in these reasons I concluded that Mr Clerke has not proved that the First, Third and Fifth “Complaints” were complaints within the meaning of s. 341(1)(c) and the reverse onus in s. 361 is not engaged. Even if I am wrong about that and in fact any of the First, Third and Fifth “Complaints” were complaints within the meaning of s. 341(1)(c), Vortex has proved that it did not dismiss Mr Clerke because of those complaints or any one of them.
The First Complaint and the Second Complaint
Mr Clerke made the First Complaint in July 2021 and the Second Complaint in August 2021. Proximate to the dates of the making of those complaints, Vortex did not take adverse action against Mr Clerke at that time. In fact, Vortex took action favourable to Mr Clerke and gave him a backdated salary increase.
As to why Vortex dismissed Mr Clerke from employment on 1 June 2023, as Bromberg J observed in Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 at [114] any complaint proximate in time to the dismissal “at least prima facie may be regarded as likely to have been the most potent” in actuating a dismissal. There was nothing in the evidence that would lead me to discount the explanation Mr Woodland gave as to his actual reasons for dismissal and having rejected those stated reasons find, contrary to the reasons Mr Woodland gave, Mr Clerke’s First Complaint and Second Complaint made nearly two years earlier -in July and August 2021 - were “substantial or operative” factors in the dismissal. The substantial gap of time between the complaints and the dismissal weighs significantly against such a conclusion. In Cummins, Bromberg J at [113] noted that “the time of the complaint relative to the act of dismissal needed to be considered”. Although ultimately in Cummins the appeal court’s order was to remit certain matters for reconsideration, Bromberg J asked in his reasons whether “any motivational effect that the complaint may initially have… had…[had] dissipated by the effluxion of time…[or] been overtaken by other circumstances”. In this case, there was no causal nexus between complaints made in July and August 2021 and the dismissal in 2023. There was every reason to think that if the First Complaint and the Second Complaint had a motivational effect in mid-2021 - itself doubtful given that Vortex’s action at the time was not adverse to the Applicant but favourable to him by way of the grant of a salary increase – by early 2023 any motivational effect had dissipated by the effluxion of time.
The Third “Complaint”
The Applicant submitted that “importantly the email that was Complaint 3 was quoted verbatim in the third warning letter” (Ex A5, [60]). The Applicant further submitted that:
65. Mr Woodland conceded that he relied on this email in the disciplinary process and interpreted it as a refusal to communicate rather than a legitimate workplace concern (T.284). He further conceded that the written warnings that he emailed the Applicant on 20 April 2023, which included him taking umbrage in the third warning with the abusive behavior by Mr Tucker, reflected his reasons for dismissing the Applicant.
66. It follows that the Court should find that the Respondents have failed to rebut the s.361 presumption that Complaint 3 was a substantive and operational reason for the dismissal.
The submission was put on the basis that because Mr Woodland quoted verbatim from the Third “Complaint” in the third warning letter – and he himself said that the warning letters set out his reasons for dismissing Mr Clerke – it must necessarily follow that the Third “Complaint” was a substantial or operative factor for the dismissal.
Proceeding on the basis that I am wrong and that the Third “Complaint” was a complaint within the meaning of s. 341(1)(c), the s. 361 onus does not mean that it is necessary for an employer to prove that the reasons for the dismissal were “entirely dissociated” from the exercise of the workplace rights (CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41, [14]; Barclay, [62]). I can and do draw a distinction between a reference to a complaint – the Applicant’s statement that I will walk away if voices are raised said to constitute his Third Complaint and quoted in the third warning letter – and the identification of a “substantial or operative” reason for adverse action.
I accept the Respondents’ submission as to the Third “Complaint” that Mr Woodland’s concern was not the fact of the complaint but was about issues of communication between senior employees in a small business, namely Mr Clerke as Chief Engineer and Mr Tucker as the CEO. Mr Clerke’s email that he was going to walk away if voices were raised “happened to be the mode by which issues perceived to reflect poorly on [his] performance happened to come to Mr Woodland’s attention” (see Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 786, [783]). Mr Clerke’s concern was not the email it was about communication between Mr Clerke and upper management. A distinction can be drawn between the complaint which provided the relevant context only and the reason for the dismissal.
I accept Mr Woodland’s evidence that a reason for dismissal (among others) was that he was dissatisfied with Mr Clerke’s communication with upper-managers (namely him and Mr Tucker), as distinct from the fact that he had made a complaint about Mr Tucker raising his voice to him.
Fifth complaint
Again, proceeding on the basis that I am wrong, and that the Fifth “Complaint” was a complaint within the meaning of s. 341(1)(c), Vortex has proved Mr Clerke’s complaint that he was working long hours on 13 April 2023 was not a substantial or operative reason for the dismissal.
I have already noted a striking aspect of the evidence was that by 13 April 2023 Mr Woodland regarded Mr Clerke as a “dead man walking” because the log books were “wildly non-compliant”. Mr Woodland’s focus was on the business risk of non-compliant aircraft maintenance logbooks. In closing submissions (Ex A5, [81]), the Applicant pointed to some cross examination of Mr Woodland as to the Fifth Complaint in which there was the following exchange (T289:L16-26):
COUNSEL: So, what you’re saying there is when you’re making your decision to terminate his employment – correct? So that’s right at the end? You considered what he said in his email of 13 April 2023?
MR WOODLAND: I considered all of his aspects of underperformance when I was making my decisions about
COUNSEL: Yes. Yes. But the question I asked you was you took into account that particular email, the one of 13 April 2023?
MR WOODLAND: Okay. Yes. That’s what it says.
COUNSEL: Yes. And particularly you took into account what you considered were his excuses in that email of 13 April 2023?
MR WOODLAND: Yes. That’s what it says.
The fact that Mr Woodland “took into account” the email dated 13 April 2023 – which comprised the Fifth “Complaint” - does not mean that Vortex has failed to discharge its onus. As I have already said, Vortex need not prove that the dismissal was “dissociated” from any complaint (BHP Coal). Vortex has proved that it did not dismiss Mr Clerke because of any complaint in that 13 April 2023 email about long hours. The substantial and operative reason for the dismissal was Vortex’s concern about Mr Clerke’s performance, a concern genuinely held, even though there was a difference between the parties as to whether Vortex’s concerns were soundly based. Mr Clerke complained about long hours. Mr Woodland dismissed him because he did not keep the logbooks up-to-date.
To some extent, the Applicant’s submissions that the reasons for the dismissal were “not rooted in objective performance deficiencies” (Ex A5, [83]) and that there was “no structured or meaningful performance management process” (Ex A5, [84]) invites me to consider this matter as an unfair dismissal rather than a general protections application (Cf Khiani, above). Provided Mr Woodland genuinely held the concern about Mr Clerke’s performance and acted because of that reason, and did not act because of the complaint(s), it is not necessary to decide whether Mr Woodland’s concerns about Mr Clerke’s performance were sound, defensible or well-founded.
The Sixth Complaint
In his final submissions Mr Clerke submitted that “the evidence establishes that the dismissal occurred … on or about 20 April 2023” (Ex A5, [17]). The first thing to be said about the Sixth Complaint (the lawyer’s letter) is that a complaint made on 24 April 2023 could not be a reason for dismissal which occurred earlier in time on 20 April 2023 which was the Applicant’s case.
If it is accepted that Mr Clerke was dismissed on 20 April 2023, as a matter of elemental chronology, Mr Woodland cannot have been actuated to dismiss Mr Clerke because of a lawyer’s letter sent four days later on 24 April 2023.
Even though a claim that Mr Clerke was dismissed on 20 April 2023 because of a complaint he made on 24 April 2023 cannot be maintained, in circumstances in which I have found that the dismissal in fact occurred on 1 June 2023, the Respondents have in any event proved that Vortex did not dismiss Mr Clerke because of the Sixth Complaint.
Returning then to the language that Mr Woodland deployed of a “dead man walking”, the die had been cast before 24 April 2023, or as the Respondents put it, Mr Woodland had earlier formed a strong view on or about 12 April 2023. Mr Woodland said in cross examination that he intended to “sit down and talk about” the issues on 20 April 2023 (T:297:23). When that did not occur, he put matters down on paper by way of the three written warnings and abided Mr Clerke’s request not to be contacted as he “asked for”. Then, as Mr Woodland put it “[Mr Clerke] lawyered up, and the rest is history” (Mr Woodman, T297: 26-27). It was Mr Woodland’s performance concerns that had largely crystallised by 12 April 2023 and not any complaint set out in the letter dated 24 April 2023 that constituted the substantial or operative reasons for the dismissal. By the time Mr Clerke “lawyered up” the decision had in practical terms been made but not yet carried into effect.
Vortex has proved that the Sixth Complaint set out in the lawyer’s letter was not a substantial or operative reason for the dismissal.
Conclusion: Vortex has proved that it did not take adverse action against Mr Clerke in contravention of Part 3.1 of the FW Act
In conclusion, I accept Mr Woodland’s testimony that Vortex dismissed Mr Clerke because of performance concerns. I find that Mr Woodland was the sole decision-maker. Mr Woodland dismissed Mr Clerke because of his performance concerns about Mr Clerke’s accountability for timelines on aircraft maintenance, because of concerns about unsatisfactory communication with management and because aircraft maintenance logbooks had not been kept up to date, all matters for which Mr Clerke was ultimately responsible as the Chief Engineer. I conclude that Vortex discharged its onus under s. 361 to prove that the Second Complaint and the Sixth Complaint were not substantial or operative reasons for the dismissal. The Second Complaint was made in August 2021. Any motivational effect it may have had in August 2021 for adverse action had dissipated by the effluxion of time by April 2023. As to the Sixth Complaint, it is apparent that by the date it was made on 24 April 2023, Mr Woodland already held strong views that Mr Clerke’s performance was unsatisfactory. The question is not whether those views were sound defensible or well-founded, but Vortex has proved that Mr Woodland genuinely held those views, and it was because of those views that Vortex dismissed Mr Clerke. Finally, if I am wrong, and the first, third and fifth communications were in fact “complaints” within the meaning of s. 341(1)(c), Vortex has proved its positive case that it acted because of performance concerns and proved its negative case that those First, Third and/or Fifth “complaints” (individually or collectively) were not substantial or operative reasons for the dismissal.
The result is that the order I will make is to dismiss Mr Clerke’s general protections claim against Vortex.
(6) THE ACCESSORIAL LIABILITY CLAIM
Mr Clerke brought an accessorial liability claim against Mr Woodland on the basis that he was involved (within the meaning of s. 550 of the Act) in Vortex’s contravention.
Because accessorial liability is ordinarily pendent liability: that is, ordinarily dependent on proving the claim against the primary contravener, it follows in this case that because I have dismissed the general protections claims against Vortex, I will also dismiss the claim against Mr Woodland that he was involved in any contravention of Vortex.
(7) HOW WOULD I HAVE CALCULATED COMPENSATION?
In the very different context of Roberts-Smith v Fairfax Media Publications Pty Ltd (No. 41) [2023] FCA 555, Besanko J noted that he for some time during the running of that case assumed that he would assess damages on the hypothetical basis that he was wrong because it is generally desirable for a trial judge to resolve as many issues as possible. Besanko J concluded that “largely because of the significant number of possible alternative outcomes if I am wrong … [the assessment of damages] would not be an appropriate or useful exercise” (Roberts-Smith, [2618]). I have considered whether I ought appropriately or usefully assess compensation under s. 545(2)(b) in case I am wrong.
In this case – after 20 April 2023 – Mr Clerke issued 3 invoices dated 28 May 2023, 5 June 2023 and 22 June 2023 for work as a contractor for which he was paid $5,698 (Ex R9). On 1 July 2023 Mr Clerke commenced employment with Pen Jett Pty Ltd on an annual salary of $120,000 (SOAF, [22]); $35,000 less annually than the salary he earned at Vortex at the end of his employment. Between 20 April 2023 and 1 June 2023 Vortex paid Mr Clerke his salary, by way of weekly annual leave payments.
For the same reasons that Besanko J gave in Roberts-Smith, I have concluded that for me to determine compensation on a counterfactual basis under s. 545(2)(b) “because of the significant number of possible alternative outcomes if I am wrong would not be an appropriate or useful exercise.” Different scenarios may arise if in fact the correct finding was that Vortex dismissed Mr Clerke because of the First Complaint, Second Complaint, Third Complaint, Fifth Complaint or Sixth Complaint (or a presently unknown combination of them). As a result, I have decided not to assess compensation on a ‘what if I am wrong’ basis.
(8) NEXT STEPS
The First Respondent’s admitted contravention of section 44
Vortex admitted that it did not provide notice or payment in lieu of notice to Mr Clerke under s. 117(2)(b) because it did not provide “notice of the termination before it took effect or pay in lieu of notice until 17 April 2025” (Amended Defence, 21(b)). The requirement to provide “notice of termination” as a National Employment Standard is a minimum standard which cannot be “displaced” under s. 61(1) and s. 61(2)(j) of the FW Act. Vortex made the notice payment – very late, on 17 April 2025 – some 22 months after the date Vortex itself identified as the date of dismissal (and I have found in fact to be the date of dismissal), 1 June 2023.
I note that there is no FWC certificate jurisdictional prerequisite to the commencement of a court application as to a contravention of s. 44 of the FW Act.
There is potentially one residual issue as to compensation as to the notice payment concerning superannuation. At trial it was unknown whether superannuation had been paid on the notice payment: given that the 17 April 2025 notice payment was made only shortly before trial, the issue may only have been one of timing with superannuation paid subsequently as part of recurrent employer quarterly superannuation contributions. Vortex’s position was to acknowledge that “super is payable on payment in lieu of notice” (T372:L41). I will hold over any issue of compensation on the superannuation element of the notice payment as part of the penalty hearing.
I will make a declaration as to the contravention of s. 44. I will list a further hearing as to superannuation on the notice payment, the appropriate penalty (if any) under s. 546(1) as to the admitted contravention of s. 44 of the FW Act and any consequential issues.
The Applicant did not make a claim of accessorial liability against the Second Respondent as to a contravention of s. 44
As to the notice contravention claim, Mr Clerke did not plead an accessorial liability claim against Mr Woodland, the Second Respondent. In his Prayer for Relief Mr Clerke did seek a remedy by way of a declaration and a penalty against Mr Woodland as to the s. 44 claim (ASOC, Prayer for Relief, paras G and H). Mr Clerke reproduced that claim against Mr Woodland in a document he tendered during trial titled “Further Amended Orders Sought By The Applicant” (Ex A4). The remedy Mr Clerke seeks against Mr Woodland in the Prayer for Relief is not supported by a pleaded claim in the body of the Amended Statement of Claim as to the notice issue. The notice claim is pleaded only against Vortex, as the First Respondent (ASOC, [19]–[21]). Because Mr Clerke seeks civil penalties, the Second Respondent was “entitled to be told clearly and precisely in the … ASOC what case it was [he] had to meet”. Mr Woodland has not been told “clearly and precisely” that there was a claim against him as an accessory as to the s. 44 claim (Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83, [49]–[50]).
If I am wrong about that and in fact the case was sufficiently pleaded because of the references to it in the Prayer for Relief, for an accessory to be an intentional participant in a contravention “the person must intentionally participate in the contravention with the requisite intention”. It is not necessary that the accessory should appreciate that the conduct in question is unlawful (Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, [176]). As Mr Clerke ultimately argued the case, he submitted that the date of dismissal was 20 April 2023. An essential element of the accessorial liability case, as argued, is that Mr Woodland knew the dismissal date was 20 April 2023. In fact, the Respondents have proved that the date of dismissal was 1 June 2023. I accept an alternative case might have been run – perhaps readily run – against Mr Woodland on the basis that he was an accessory to a contravention on 1 June 2023, but it is not appropriate for me to envision, and then find proved, an alternative case not pleaded or explored in the evidence in reasons for judgment.
I will make a declaration as to contravention of s. 44 only against the First Respondent and not against the Second Respondent.
Penalty and consequential matters hearing
I will list the matter for a hearing as to compensation (if any) or other order on the superannuation element of the notice payment, penalty (if any) as to the admitted s. 44 contravention and any consequential matters. I will make orders for the filing and service of submissions and material before the hearing.
Costs
I will reserve the parties’ positions as to costs. Noting as. 570 of the FW Act, unless both parties agree to another approach, I will consider costs issues (if any) at a third stage after my reasons for judgment as to penalty and other issues.
I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 9 October 2025
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