Clerke v Vortex Aircraft Maintenance Pty Ltd - [2025] FedCFamC2G 1629

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FedCFamC2G 1629
Decision Date: 9 October 2025

CaseChat Overview and Summary

In Clerke v Vortex Aircraft Maintenance Pty Ltd, the applicant, Mr Clerke, sought relief in the Fair Work Commission (FWC) and later in the Federal Circuit and Family Court of Australia (the Court) regarding his dismissal from employment by Vortex. The dispute centred on whether the dismissal contravened the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act). The court was required to decide three main issues: whether the Court had jurisdiction to hear the dismissal dispute, whether certain communications by Mr Clerke constituted complaints under the FW Act, and the reason for Mr Clerke's dismissal by Vortex.

The first issue was whether the Court had jurisdiction over Mr Clerke's dismissal dispute. The Court found that it lacked jurisdiction as Mr Clerke had applied to the FWC before his dismissal was finalised. Under section 365(a) of the FW Act, a person can only apply to the Court if they have been dismissed. The Court held that as Mr Clerke's application to the FWC was made before the dismissal date, the Court did not have jurisdiction over the matter.

The second issue was whether the communications made by Mr Clerke between 25 July 2021 and 13 April 2023 were complaints within the meaning of section 341(1)(c) of the FW Act. The Court found that only two of the communications qualified as complaints. Vortex denied that the other communications were complaints, and the Court agreed, holding that they did not meet the definition of a complaint as provided in the FW Act.

The third issue was the reason for Mr Clerke's dismissal. Even though two of the communications were complaints, the Court found that Vortex dismissed Mr Clerke due to concerns about his performance, not because of the complaints. The Court thus concluded that the dismissal did not contravene the general protections provisions of the FW Act.

In a separate matter, Vortex admitted that it contravened section 44 of the FW Act by failing to provide Mr Clerke with notice of termination of employment or a payment in lieu of notice. The Court made a declaration to this effect and ordered a further hearing to determine the penalty and any consequential matters.

The Court's decision highlighted the importance of the jurisdictional prerequisites outlined in the FW Act and the need for clear characterisation of communications as complaints. The Court also underscored that the general protections provisions of the FW Act do not protect against dismissals based on legitimate performance concerns.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 courtA 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.

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…