Jewell v Magnium Australia Pty Ltd - [2025] FedCFamC2G 201

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jewell v Magnium Australia Pty Ltd [2025] FedCFamC2G 201

File number: MLG 1325 of 2023

Judgment of: JUDGE CHAMPION

Date of judgment: 20 February 2025

Catchwords:
FAIR WORK – General Protections – Whether the employer dismissed the employee from employment because he had made workplace complaints – Whether the employer dismissed the employee from employment because he was temporarily absent from work because of illness – Where the employer dismissed the employee because of concerns about the employee’s performance and not because of workplace complaints or because he was temporarily absent – General protections claim dismissed

FAIR WORK – Section 323(1) – Requirement for an employer to pay an employee amounts payable to the employee in relation to the performance of work in full at least monthly – Whether employer did not pay the employee’s salary for the final week of his employment during the relevant period – Application as to contravention of s. 323(1) dismissed

FAIR WORK – National employment standards - Where the employer made admissions that it had not made a payment in lieu of notice, paid redundancy pay or paid accrued and unused annual leave to the employee as at the date of dismissal – Where the employer paid those entitlements at a later date –Declarations as to contraventions made

FAIR WORK – Accessorial liability – Where the Second Respondent was not an intentional participant in the primary contravener’s contraventions - Claim against the Second Respondent for accessorial liability dismissed

Legislation: Fair Work Act 2009 (Cth) ss. 44, 90, 117, 119, 323, 341, 351, 352, 361, 550, 793

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32

Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306; [2017] FCAFC 222

CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41

Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46; [2019] FCAFC 16

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369

Pilbrow v University of Melbourne [2024] FCA 1140

Tattsbett Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62

Transport Workers Union of Australia v Qantas Airways Ltd (2021) 308 IR 244; [2021] FCA 873

Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184; 246 IR 441

Wong v National Australia Bank Limited [2021] FCA 671

Division: Division 2 General Federal Law

Number of paragraphs: 211

Date of last submissions: 20 December 2024

Date of hearing: 16–20 December 2024

Place: Melbourne

Counsel for the Applicant: Mr White

Solicitor for the Applicant: Jewell Hancock Employment Lawyers

Counsel for the Respondent: Mr Pym

Solicitor for the Respondent: Barry Nilsson
ORDERS

MLG 1325 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
DANIEL JEWELL

Applicant

AND:
MAGNIUM AUSTRALIA PTY LTD

First Respondent

CLAYTON CROSS

Second Respondent

ORDER MADE BY:

JUDGE CHAMPION

DATE OF ORDER:

20 FEBRUARY 2025

THE COURT ORDERS THAT:
Declarations
1.On 21 April 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 lieu of notice in contravention of s. 117(2) of the Fair Work Act 2009 (Cth).
2.On 21 April 2023 the First Respondent contravened s. 44 of the Fair Work Act 2009 (Cth) by failing to pay the Applicant redundancy pay in contravention of s. 119 of the Fair Work Act 2009 (Cth).
3.On 21 April 2023 the First Respondent contravened s. 44 of the Fair Work Act 2009 (Cth) by failing to pay the Applicant his accrued and untaken annual leave entitlement in contravention of s. 90(2) of the Fair Work Act 2009 (Cth).

Claim otherwise dismissed
4.Subject to orders 5–10, the Applicant’s claims are otherwise dismissed.

Costs
5.Any party who wishes to make a costs application must make the application within 28 days of the date of these orders.
6.The applicant to the costs application is to file an outline of submissions and any evidence on which they intend to rely on or before 1 April 2025.
7.The respondent to any costs application file an outline of submissions and any evidence on which they intend to rely on or before 15 April 2025.

Hearing as to penalties and consequential matters
8.The matter is listed for hearing as to penalties and any other consequential matters including any costs application (if made) on 29 April 2025 at 10.00 am (on an estimate of half a day).
9.On or before 1 April 2025, the Applicant file an outline of submissions and any evidence on which he relies as to the declaration of contraventions set out in orders 1–3 above and a hearing as to penalties and any other consequential issues.
10.On or before 15 April 2025, the Respondents file an outline of submissions and any evidence on which they rely as to the declaration of contraventions set out in orders 1–3 above and a hearing as to penalties and any other consequential issues.

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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION

Dr Jewell, the Applicant, is a chemical and a senior research engineer who, was employed as Chief Technology Officer of Magnium Australia Pty Ltd, the First Respondent, from November 2021 until his dismissal from employment on 21 April 2023.
Magnium is a technology start-up company with a goal to commercialise technology it has licensed from the CSIRO — named “Magsonic” — for refining elemental magnesium from magnesium oxide. Dr Jewell had worked for the CSIRO between 2016 and 2019. The commercial refining of elemental magnesium is a process not previously achieved.
Mr Clayton Cross, Magnium’s Chief Operating Officer, is the Second Respondent. Dr Jewell reported to Mr Cross. Mr Cross was Magnium’s sole decision-maker in the decision to dismiss Dr Jewell from employment.
WHAT IS THE SUMMARY OF OUTCOME?
Dr Jewell claims Magnium contravened civil penalty provisions of the Fair Work Act 2009 (Cth). His principal claim was that Magnium dismissed him in contravention of general protections afforded to employees under Part 3.1 of the Fair Work Act 2009 because he made thirty workplace complaints within the meaning of s. 341(1)(c)(ii). His second general protections claim was that Magnium dismissed him because he was temporarily absent because of illness, in contravention of s. 352.
Dr Jewell alleges that Mr Cross was knowingly involved — within the meaning of s. 550 of the FW Act — in Magnium’s contraventions.
In its defence, Magnium advanced what I have termed a “positive” case and a “negative” case. I have found that Magnium has proved its “positive” case that it dismissed Dr Jewell because Mr Cross believed that Dr Jewell was no longer the right person to lead Magnium’s development of its technology. Mr Cross believed that Dr Jewell was a divisive presence at Magnium and that he was not accountable (as he ought to be) for progressing Magnium’s intertwined business and technological goals. As a result, Mr Cross believed that Magnium was achieving an insufficient return on its investment in Dr Jewell as an employee.
As to its “negative” case, Magnium has proved that it did not dismiss Dr Jewell because he made one or more of the Thirty Workplace Complaints between July 2022 and April 2023, chiefly by the mode of proving its “positive” case: the reasons for which it acted.
Magnium has also proved that it did not dismiss Dr Jewell because he was temporarily absent because of illness under s. 352 of the FW Act.
Because Magnium did not breach any provision of Part 3.1 of the FW Act, the claims against the Magnium as the primary contravener will be dismissed. Because accessorial liability is pendent liability, it follows that Mr Cross is not liable as an accessory under s. 550.
Magnium made certain admissions as to other contraventions of the National Employment Standards under the FW Act (s. 44) as to late payment of notice (s. 117), redundancy pay (s. 119) and accrued and unused annual leave (s.90(2)). I will make declarations as to its admissions. Dr Jewell has not proved his accessorial claim against Mr Cross as to Magnium’s entitlement contraventions. I return to this issue below.
My reasons follow.
WHAT ARE THE ISSUES?
I have identified the following four issues for decision:
(1)Why did Magnium dismiss Dr Jewell from employment? This issue includes a consideration of whether Magnium dismissed Dr Jewell because he had made the Thirty Workplace Complaints within the meaning of s. 341(1)(c)(ii).
(2)Did Magnium dismiss Dr Jewell because he was temporarily absent from work because of illness in contravention of s. 352?
(3)Did Magnium contravene s. 323(1) as to non-payment of Dr Jewell’s salary in the final week of his employment within the relevant period?
(4)Was Mr Cross knowingly involved within the meaning of s. 550 of the FW Act in any relevant contraventions either as to Dr Jewell’s contested general protection claims or Magnium’s admitted contraventions as to Dr Jewell’s entitlements due to him at the end of the employment?
I will deal sequentially with each of these issues.
WHO ARE THE OTHER RELEVANT PEOPLE?
Before dealing sequentially with those issues, I note that Dr Jewell and Mr Cross were the principal witnesses.
Dr Jewell was the only witness in his own case.
In addition to Mr Cross, Magnium called the following additional witnesses each of whom made an affidavit (in alphabetical order):
(a)Mr David Belgrade, whom Magnium engaged to perform maintenance work;
(b)Mr John Dera, a senior mechanical engineer, who worked closely with Dr Jewell at Magnium;
(c)Ms Jane Save, an external HR Consultant Magnium retained. Ms Save had many dealings with Dr Jewell during his employment. She was closely involved in events leading up to his dismissal;
(d)Mr Shilow John Shaffier, Chief Executive Officer. Although he was Magnium’s CEO, Mr Shaffier had no material involvement in matters the subject of dispute; and
(e)Mr Ioannia Vlachos, whom Magnium employed as Health and Safety Officer. Mr Vlachos’ affidavit was adduced into evidence. He was not cross-examined.
ISSUE 1: WHY DID MAGNIUM DISMISS MR JEWELL FROM EMPLOYMENT?
An employer must not take adverse action against an employee because he has exercised workplace rights in contravention of the general protections
Dr Jewell has brought claims under Part 3.1 of the Act which is titled “General Protections”. Under s. 336(1)(a) the Objects of Part 3.1 include “to protect workplace rights”. An employer must not take “adverse action” against an employee who possesses or exercises a workplace right (s. 340). “Adverse action” includes “dismissal” (s. 342). Under s. 341(1)(c)(ii) an employee has a workplace right if they are able to make a complaint or inquiry in relation to their employment founded on a source of entitlement. Dr Jewell alleges that because he exercised his workplace rights — by making the Thirty Workplace Complaints in relation to his employment — Magnium dismissed him.
Section 361 - the “reverse onus”
Section 361, regularly described as the “reverse onus”, provides that “it is presumed that the action was taken” for a prohibited reason, unless the employer proves otherwise (as to “reverse onus”, see: Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306 [94], [148]). The purpose of s. 361 is to throw on to the employer the onus of proving that which lies peculiarly within his/her own knowledge (Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) HCA 32, [50]).
Who was 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, in this case, Dr Jewell, was made.
In this case, it is possible to “isolate the particular decision-maker” (Pilbrow, [142]). Mr Cross’ evidence — which I accept — was that he was the sole decision-maker as to the decision to dismiss Dr Jewell from employment. He said that “100 per cent was my decision” (T244:L31).
It is Mr Cross’ state of mind — his mental processes — that are attributed to the corporate respondent Magnium, under s. 793 of the FW Act for the purposes of determining whether there was a contravention of a provision of Part 3.1 of the Act.
No other person had a contribution to the dismissal which “rose beyond the threshold level” (Pilbrow, [77]) such that their state of mind is relevant as to why Magnium dismissed Dr Jewell from employment. In particular, I repeat that Mr Shaffier, the CEO, had minimal involvement in the dismissal decision.
The central question is why was the action taken?
As French CJ and Crennan J said in Barclay at [44] the central question on a general protections application remains “why was the adverse action taken?” On the facts of this case, did Magnium dismiss Dr Jewell because he made one or more of the Thirty Workplace Complaints or because he was temporarily absent because of illness? Or has Magnium proved that it dismissed Dr Jewell for non-prohibited reasons?
In Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184; 246 IR 441 at [32], Tracey and Buchanan JJ said:
·        The question is one of fact. It is: “Why was the adverse action taken?”
·        That question is to be answered having regard to all the facts established in the proceeding.
…
•        Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
•        If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
Magnium’s positive and negative case
Magnium ran what I have termed a “positive” and “negative” case.
Because the reasons must be assessed by reference to the totality of the evidence (see Grant, above) it is necessary both to analyse the “positive” case Magnium advanced for its reasons for dismissal and its “negative” case — as to whether it has proved that it did not dismiss Dr Jewell because of the Thirty Workplace Complaints or because he was temporarily absent from employment because of illness — before reaching a conclusion as to whether Magnium has discharged its onus under s. 361 of the FW Act.
Magnium advanced “positive” reasons as to why it dismissed Dr Jewell. None of the positive reasons it advanced was a prohibited reason under Part 3.1. Mr Cross’ evidence — remembering it is Mr Cross’ state of mind that is attributed to Magnium — is that he dismissed Dr Jewell because of Dr Jewell’s divisive workplace behaviour, because of his lack of accountability for outputs within its business and because Mr Cross assessed that Magnium was not achieving a concrete return on its investment in Dr Jewell as an employee.
It is convenient to start with the positive case Magnium advanced.
WHAT WAS MAGNIUM’S POSITIVE CASE?
Mr Cross advanced various interrelated reasons for why he dismissed Dr Jewell. Those reasons might be analysed under headings:
(a)“divisive behaviours”;
(b)lack of accountability for outputs; and
(c)lack of concrete return on investment.
Divisive behaviours
The first reason that Mr Cross gave for dismissing Dr Jewell was that :
Daniel [Jewell] had repeatedly engaged in divisive behaviours that had serious impacts on the efficiency and output of the project.
Mr Cross’ evidence was that members of Magnium’s technology team had difficulties working with Dr Jewell.
Mr Cross’ perception of Dr Jewell was supported by evidence from others in Magnium’s technology team
In Khiani v Australian Bureau of Statistics [2011] FCAFC 109, a Full Court held at [31] that it is not necessary for an employer to prove that the reasons for which it acted were procedurally or substantively fair. Magnium need not prove that Dr Jewell’s divisive behaviours were of such a grade that they provided a sound, defensible or well-founded reason for his dismissal. 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]).
Magnium called substantial evidence that not only did Mr Cross have a view that Dr Jewell had engaged in divisive behaviours in the workplace, but Mr Cross’ state of mind had a foundation in the reports of at least three other members of Magnium’s small technology team of just five employees. When assessing Mr Cross’ evidence as to whether he was genuinely concerned that Dr Jewell had engaged in divisive workplace behaviours such that I might accept he would be motivated to dismiss him because of those behaviours, the proposition that he genuinely held the view that Dr Jewell was divisive derives significant probative support from the fact that three other employees in a small business — Mr Dera, Mr Belgrade and Mr Vlachos — gave evidence that they held views broadly corroborative of Mr Cross’ view that Dr Jewell engaged in divisive workplace behaviour. Necessarily, their views as members of Dr Jewell’s immediate team were going to shape Mr Cross’ view as the COO.
Mr JP Dera was an engineer and one member of that small technology team. Mr Dera reported to Dr Jewell from November 2021 until September 2022. He gave evidence that he expressly requested a change in reporting responsibilities in September 2022 because he did not consider he could continue to report to Dr Jewell.
Mr David Belgrade performed maintenance work. He gave evidence that he had been suspended from work for two weeks for driving a forklift without a licence, but Dr Jewell had driven a forklift without a licence and considered himself “exempt from the rules”. From October 2022 he had asked Mr Cross if he could be excused from attending plant “walk arounds” because he did not want to be around Dr Jewell anymore. Mr Belgrade was critical of Dr Jewell because he said that Dr Jewell could not discriminate between minor and major safety issues. Mr Belgrade complained that the team’s time and Dr Jewell’s energy was mis-directed to minor issues, such as bolts at the plant not being wholly flush with the ground but protruding 2-3 millimetres. Dr Jewell was asked to mark his safety concerns with pink paint. Mr Belgrade observed that Dr Jewell made “100+” marks using pink spray paint throughout the factory premises, marking areas that Dr Jewell considered safety concerns. Following this incident, Mr Belgrade said that he “lost complete trust in him as a leader of the project” because he could not differentiate between significant and minor issues.

Mr Ioannis Vlachos, who holds a tertiary degree in OHS, and was not cross-examined described Dr Jewell as “obsessive about even the most minor issues”.
I accept the gist of Mr Cross’ evidence that it was important that someone in Dr Jewell’s position was able to differentiate between serious safety hazards — the risk of an explosion in a chemical process — and minor issues as to whether bolts 2-3 mm off the ground posed a tripping hazard. It was important that the CTO meld a cohesive team in such a small business.
I note that a number of Dr Jewell’s Thirty Workplace Complaints concerned safety issues. Doubtless, if Dr Jewell made a safety complaint he was protected from adverse action because he complained about safety. The focus is on the decision-maker’s reasons for acting. In the High Court in CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41 a Mr Doevendans held a scab sign on an industrial picket. Even though his actions had the character of an industrial activity in respect of which he was protected from adverse action, the decision-maker dismissed him not because he had engaged in conduct which objectively engaged the statutory prohibition but because, in evidence which was accepted, he had failed to treat his colleagues with respect. Here, I am satisfied that Mr Cross acted because he perceived that Dr Jewell had engaged in divisive workplace behaviours, not because Dr Jewell made complaints about safety. An employer need not prove that the reasons for dismissal are dissociated from the workplace complaints (BHP Coal, [14]).
Lack of accountability for outputs
The second reason Mr Cross gave for the dismissal of Dr Jewell was that:
There was a lack of clear planning, adherence to proper project management and accountability for outputs. At the time Daniel had still yet to deliver to me any outputs on explosion risks nor an operating procedure for the reactor…
Mr Dera gave striking evidence that in September 2022 he had said to Mr Cross of Dr Jewell — “I don’t think he will take us to the promised land” (T346:L39). These words can be understood to represent Mr Dera’s assessment as to whether Dr Jewell was the person to ensure Magnium attained its technological aims. By April 2023, although he did not use these words, Mr Cross had reached the same view Mr Dera had held since September 2022.
I turn now to consider the evidence as to whether there was any basis in objective fact for Mr Cross’ view that Dr Jewell had not “delivered… any outputs on explosion risks nor an operating procedure for the reactor.” Again, the issue is not whether Dr Jewell was the subject of fair criticism as to whether he had delivered outputs on “explosion risk” or as to not delivering an “operating procedure for the reactor” but whether Mr Cross genuinely held the view that Dr Jewell had not delivered these outputs.
An assessment of explosion risk
Major safety issues inhered in the chemical process which Magnium was pursuing. The underlying chemical process involved a chemical reaction known as a “carbothermic reaction” which occurred at very high temperatures, exceeding 1800°C. The (arguably) major risk of refining elemental magnesium was described as “explosion risk” from a combustion during the chemical process.
There was evidence that supported Mr Cross’ view that Dr Jewell did not personally take responsibility for delivery of an output as to managing explosion risk.
On 25 November 2022 Dr Jewell sent an email to Mr Cross as to “explosion risk” which said “over to you two”: a reference to Mr Cross and Mr Dera. On 26 November 2022 Dr Jewell sent a further email to Mr Cross that stated:
I haven't been involved in the design for months since it was taken over by JP [Dera] and no further detail was provided nor discussion had. I suggest you ask him what he built and the conditions he anticipated, as it's outside my scope at this point.
Dr Jewell was the chemical engineer with pre-eminent expertise in the chemical reaction process in Magnium’s technology team. He was paid accordingly. There was some evidence of a division of responsibilities between Mr Dera and Dr Jewell. Nonetheless, Dr Jewell’s statement that an assessment of explosion risk was “outside my scope” was surprising. The nature of the chemical reaction process — with its high pressures and high temperatures — meant an assessment of “explosion risk” was an important safety matter to be addressed in the new technology. It might be expected the CTO would be closely involved in the assessment of explosion risk given he held a leadership position and his professional expertise was the raison d’etre of his employment.
Suffice to say, I regarded Mr Cross’ evidence as to his concern that Dr Jewell was not sufficiently accountable as to the management of explosion risk as genuine.
Registration of a pressure vessel with WorkSafe – AS1200
Mr Cross had an additional concern about Dr Jewell retaining engineering advice without consultation with him. There was an issue about whether a pressure vessel used in the chemical process needed to be registered with WorkSafe under applicable Australian Standards (AS1200). Between March 2022 and March 2023, Magnium had operated on the basis that a pressure vessel did not need to be Worksafe registered because of a research and development exception to registration. Pressure vessels used in commercial production (as contrasted with research and development) needed to be Worksafe registered. Magnium had some (qualified) support for its position as to a research and development exception to registration in a March 2022 opinion of McDowall Affleck, a firm of engineers.
In March 2023 Dr Jewell unilaterally sought further advice from a different firm of engineers — FE Consultants Engineers — about the need to register a pressure vessel with Worksafe. The advice was that the pressure vessel needed to be registered. Mr Cross was concerned that the need to register a pressure vessel would delay the turning on of Magnium’s reactor. As Mr Cross saw it, as Magnium incrementally improved its pressure vessel design, registration meant each iteration of its design would need to be registered occasioning project delay. Mr Cross said that he was upset because Dr Jewell had sought further advice from FE Consultants without consultation with him. Mr Cross’ evidence was as follows (T186:L1–7)
HIS HONOUR: Why were you upset?
MR CROSS: Time. Time, and also, Daniel had signed off on it, and this was just another back-pedalling example of Daniel. He had already signed off on the fact that we sat within the R and D clause and we progressed on that basis, and if he was going to backflip, he should have done it through me. Instead, he went out and he got an expert’s report without my permission…The whole thing was a shambles. You couldn’t have done it worse.
It may be that Mr Cross’ concerns were “liable to criticism” because commercial aspirations to get the reactor up and running as soon as possible had to occur within acceptable safety parameters. The issue on a general protections’ application is not whether Mr Cross’ criticism of Dr Jewell was fair or unfair. Suffice to say, I accept that Mr Cross genuinely perceived that Dr Jewell’s decision unilaterally to seek further engineering advice — “without my permission” — about the need to register a pressure vessel was “backpedalling”, not progressing Magnium to a position where it could turn on the reactor and an example, as Mr Cross saw it, of Dr Jewell not taking accountability for business outputs.
Dr Jewell’s failure to provide operational documents
Mr Cross said that the “most critical” issue for him as to failure of Dr Jewell to take accountability for outputs was his failure to provide a process document detailing the operational requirements for the plant which would enable Magnium to turn on the chemical reactor. Mr Cross’ state of mind was that he needed Dr Jewell to sign off on the operational documents before Magnium could turn on the reactor. On (Friday) 24 March 2023 Mr Cross said that Dr Jewell assured him that documentation “detailing the operational requirements of plant” would be completed by Monday 27 March 2023. Mr Cross referred to the process document he expected as a “basis of design” document.
Mr Cross’ evidence was that it was the fact that Dr Jewell had assured him he would provide – and then did not provide – the basis of design document in accordance with his assurance on Monday, 27 March 2023 which led him to dismiss Dr Jewell from employment. In fact, on 27 March 2023, Dr Jewell provided a medical certificate that he was unfit for work for a week. As it happened, Dr Jewell was absent from work for longer from 27 March 2023 until 14 April 2023. Mr Cross’ evidence was that, when he did not receive the basis of design document in late March 2023, he “pretty well made” the decision” to dismiss Dr Jewell from employment. Mr Cross said (T206:L11–12):
When I got the medical certificate, that was when my mind turned to re- examine everything again, and that decision was pretty well made about that time.
Mr Cross said that there was a gap of time between taking the decision to dismiss Dr Jewell in late March 2023 and implementing that decision on 21 April 2023 because he could not “go behind medical certificates” (T205:L14). Although the law broadly stated is that an employer may not dismiss an employee because he is temporarily absent on sick leave, Mr Cross’ evidence (which I accept) was that it was his view that he could not dismiss an employee while he was on sick leave and, therefore, he could not implement a decision “pretty well made” until Dr Jewell returned to work after his personal leave.
In my analysis, Mr Cross’ evidence was to the effect that Dr Jewell’s non-provision of the basis of design document on 27 March 2023 — contrary to the assurances that Mr Cross believed Dr Jewell had provided on Friday, 24 March 2023 — was the straw that broke the camel’s back. He had lost confidence that Dr Jewell was the person be able to progress the project as required and was going to be accountable for progressing Magnium’s technological project.
An incomplete “basis of design” document
As it happened, after he returned from personal leave on 19 April 2023, Dr Jewell emailed a “basis of design” document to Mr Cross. Dr Jewell wrote:
Although incomplete, please find attached my current progress on the Basis of Design document, which I will continue to work on over the next few days.
Even when the “basis of design” document arrived on 19 April 2023, Mr Cross was aggrieved that the basis of design document was “incomplete”. His evidence was as follows (T236:L35):
COUNSEL: He doesn’t say it’s a draft. He says it is incomplete and he will continue to work on it?
…
COUNSEL: That’s consistent with the document – if you look at it again, the document has got some unfinished headings. It’s not put as a draft. It’s not put as something you can’t rely on. It’s put as being an incomplete document that he will continue to work on?
MR CROSS: The nature of manufacturing means safety is 100 per cent number 1, and you’ve got to, you know, cross your t’s and dot your i’s. You cannot move forward and turn on the plant with a “although incomplete” basis of design document. It has to be complete, so perhaps I’ve used the incorrect word in “draft”, but incomplete means to me I cannot use it. Now, secondly, Daniel said he will continue to work on it over the next few days. Now, by this stage he has had 13 – how many months? 17 months – 16 months to produce a basis of the design document which, as you can see, is about four pages, and a first- year chemistry student could produce it, and more importantly, he has actually got the draft document provided by CSIRO from the plant which essentially a mimic of that, so you’re saying – and I had absolutely zero confidence – because he has never done it previously – that he would actually produce a complete document that could be relied upon, so have absolutely no misapprehension. He had never done it once, and this document, you remember, he told us on the 26th of ..... 24 March it was complete, and he was going to send it through to us over the weekend including 26 March, and at the latest, we would receive it on 27 March. Instead, we got a medical certificate. Then he has two weeks where he’s off on – I’m not sure what you call it – personal leave. Then he has a whole week from 10 April to 14 April where he’s working at home on that document. Hasn’t produced it, and then he works on 17 and 18 April to produce or send that document through on the 19th. It’s four pages.
Mr Cross’ position was that Dr Jewell was not “accountable” for the project’s progress. Mr Cross’ state of mind was that Dr Jewell was unwilling or unable to formalise necessary documentation that Magnium could rely on to “turn the plant on”.
It was not clear on the evidence as to whether, in fact, Magnium required the basis of design document to be formalised or “signed off” before Magnium could turn on its reactor or whether Mr Cross’ criticism of Dr Jewell was well founded. Indeed, Mr Dera’s evidence was to the effect that such a basis of design document was not a critical prerequisite to turning the reactor on.
Again, suffice to say, I am satisfied that Mr Cross genuinely held the view that Dr Jewell’s failure to provide the “basis of design” document led him to the conclusion that Dr Jewell was not the person who was going to enable Magnium to move ahead with its technology and its business. The lengthy excerpt from the transcript above details the strength with which Mr Cross expressed his opinion. Without wishing to be reductivist as to it, it is to be remembered that one way in which Dr Jewell’s case is to be understood is that Mr Cross was actuated to dismiss Dr Jewell by Thirty Workplace Complaints not by a concern about Dr Jewell’s accountability for project delivery. I do not accept any submission that Mr Cross expressed the opinion that he was concerned about Dr Jewell’s lack of accountability for project documentation (and expressed that opinion in strident terms) to conceal the real reason for his dismissal being the Thirty Workplace Complaints.
It may have been that Dr Jewell’s employment was able to be saved — between 27 March 2023 and 21 April 2023 — had Dr Jewell provided the basis of design document, to the satisfaction of Mr Cross, before the decision to dismiss was implemented. As Mr Cross put it (T210:L26–L31):
… all he had to do was produce a basis of design document to commission the plant, but just to be clear, over that period, if some hail Mary happened, which I’m always praying for – I’m an optimist – if he got some big lump of funding or suddenly he had agreed to go special counsel, he could have stayed on.
The basis of design document Dr Jewell provided on 19 April 2023 did not satisfy Mr Cross. It did not cause him to step back from the decision to dismiss Dr Jewell “pretty well made” in late March 2023; it was not the “Hail Mary” which may have stayed the dismissal decision.
Mr Cross considered that Dr Jewell had had ample time to produce a basis of design document. Mr Cross considered that the fact that the “basis of design” document was not complete was an impediment to the advancement of the project to the next stage. As a result, Mr Cross’ state of mind was that Dr Jewell was not taking sufficient accountability as to the project’s advancement and he moved ahead with the decision to dismiss.
Lack of concrete returns on investment
The third — related — reason Mr Cross gave for the dismissal was that:
Over the period of Daniel's employment Magnium had invested almost $500,000 in his employment costs and not seen any concrete returns on its investment.
Dr Jewell was Magnum’s highest paid employee. His annual salary was $346,000. He was a highly skilled scientist. Mr Cross never impugned the level of Dr Jewell’s scientific expertise.
Doubtless, however, part of the interpersonal tension evident between Dr Jewell and Mr Cross was a consequence of the fact that Mr Cross felt an imperative to prioritise the business’ commercial needs. Mr Cross gave evidence that he had offered a bonus if the team met a milestone of the production of magnesium by December 2022. Dr Jewell did not regard the milestone as realistic. In contrast, Mr Dera regarded the meeting of the milestone as realistic. The milestone was not met. Mr Cross regarded the achievement of the milestone as important for the business to “unlock” further funding (T241:29).
By 26 March 2023, Mr Cross’ state of mind was that Dr Jewell was not the person who was going to enable Magnium to move its project forward. The ongoing cost of Dr Jewell’s employment combined with the lack of progress on the development of its technology in timeframes Mr Cross believed satisifactory was one of the reasons that Mr Cross was not prepared to continue his employment.
Magnium made the CTO position redundant. A redundancy was consistent with employment cost being a reason for the decision. Also consistent with a genuine redundancy, Magnium did not replace Dr Jewell as CTO.
WHAT WAS MAGNIUM’S NEGATIVE CASE?
Dr Jewell’s Thirty Workplace Complaints
Dr Jewell alleged that he was dismissed because he made Thirty Workplace Complaints sequentially defined in his Amended Statement of Claim: the First Complaint, Second Complaint, Third Complaint etc. through until the Thirtieth Complaint. The Thirty Workplace Complaints ranged across a nine-month period from 25 July 2022 until 20 April 2023. Dr Jewell made the First Complaint on 25 July 2022. He made the Thirtieth Workplace Compliant about nine months later on 20 April 2023. He was dismissed the next day on 21 April 2023.
Majority of complaints to Ms Save
I note that the majority of Dr Jewell’s complaints were made to Ms Save. Mr Save was an external HR consultant to Magnium. She also assumed a role as a business coach to Dr Jewell and an intermediary in the difficult interpersonal relationship between Dr Jewell and Mr Cross. The scope and extent of communications between Dr Jewell and Ms Save who was an external human resources consultant was unusual. Mr Save certainly assumed the role of the conduit of all of Dr Jewell’s concerns about Mr Cross’ conduct over time.
The First Complaint (25 July 2022) to the Twenty-Sixth Complaint (15 March 2023)
At trial, neither party spent any time in the oral evidence exploring the evidence as to the First Complaint through until the Twenty-Sixth Complaint which complaints Dr Jewell made between 25 July 2022 and 15 March 2023. Dr Jewell had detailed each complaint in his affidavit and annexed to his affidavit the relevant communications which comprised his written complaints.
The First Complaint through until the Twenty-Sixth Complaints were as follows.
On 25 July 2022 Dr Jewell made the First Complaint that Magnium was “not treating safety as the number one priority”.
On 21 September 2022 Dr Jewell made the Second Complaint about concerns he had about sharing information outside governmental rules and as to the lack of a forklift register. In part, Dr Jewell wrote:
… and then we should review all of the other areas, like the lack of a forklift license register which was our breach, and the way to address the employee in question that knowingly was in breach.
On 21 September 2002 Dr Jewell made the Third Complaint that Mr Cross was engaging in unreasonable behaviour. He wrote in part that Mr Cross had “diminished my position and authority and undermined my role and relevance” and that “culture on-site right now is toxic”.
On 21 September 2022 Dr Jewell made the Fourth Complaint by an email to Mr Cross identifying a number of occupational health and safety concerns.
On 22 November 2022 Dr Jewell made the Fifth Complaint by an email to Ms Save that Mr Cross was engaging in unreasonable behaviour, namely that Mr Cross was not “meeting the requirements of his agreement” and had “not taken necessary actions” in respect of his concerns about Mr Dera being appointed Chief Engineer.

On 24 November 2022 Dr Jewell made the Sixth Complaint by an email to Ms Save that Mr Cross was engaging in unreasonable behaviour, writing, in part, that “his communication and commitment is terrible – this is a massive stumbling block across the business”.
On 25 November 2022 Dr Jewell made the Seventh Complaint to Ms Save. He wrote (among other matters) that Mr Cross was “pushing against safety in design, excusing it as a guideline” and was acting in a “childish” way.
On 25 November 2022 Dr Jewell made the Eighth Complaint by email to Ms Save that he had been “dismissed again” by Mr Cross and that he was “not listened to”.
On 26 November 2022 Dr Jewell made the Ninth Complaint by email to Ms Save that due to Mr Cross’ conduct he “can’t do my job or keep people safe”. Dr Jewell made the complaint that:
In the end, my title is just a title. I am not the CTO. Clayton is running this business how he wants and he will never release his grip.
On 27 November 2022 Dr Jewell made the Tenth Complaint. He sent an email to Ms Save with a complaint about Mr Cross that Magnium’s approach was “already resulting in seriously and indefensibly overlooking the safety requirements we are obligated to address, professionally, morally, and legally”.
On 4 December 2024 Dr Jewell made the Eleventh Complaint. He sent an email to Ms Save that he did not see “a lot of commitment to really changing things” from Mr Cross.
On 4 December 2022 Dr Jewell made the Twelfth Complaint. He sent an email to Ms Save about Mr Cross’ failure to action “…innumerable complaints…about the state of the site, the lack of safety…”
On 16 December 2022 Dr Jewell made the Thirteenth Complaint by email to Ms Save. He provided to her a draft email that he intended to send to other employees as to a failed vacuum leak test that had occurred that day which “did not meet the minimum requirements of safety outlined in the OHS regulations under the Duty of Care”.
On 17 December 2022 Dr Jewell made the Fourteenth Complaint by email to Ms Save as to the unreasonable behaviour of Mr Cross and commented that the “culture at Magnium is just wrong” and was urging Ms Save that:
I personally think we need to put something on his record as soon as possible so he at least knows he’s crossed a line – right now he has either no awareness or knows there is no penalty.
On 18 December 2022 Dr Jewell made the Fifteenth Complaint by email to Ms Save that Mr Dera was in breach of s. 4 of the Occupational Health and Safety Act 2004, and that:
It’s very clear that JPs [Dera’s] open statement that his installation of the vacuum pipe was without a fall was “safe but not the safest, but more convenient” doesn’t pass this test. Same as with the RSD button, and the vacuum leak test. That needs to be urgently addressed, and it it’s not, then Clayton is failing in his duty of the same.
On 19 December 2022 Dr Jewell made the Sixteenth Complaint. He sent a series of text messages to Ms Save that Mr Cross was behaving unreasonably, that there was “no respect for me at all” and that Mr Cross was “deliberately not engaging me” and had “still not responded to and not completed multiple of the actionable items”.
On 19 January 2023 Dr Jewell made the Seventeenth Complaint. He circulated an email to a number of Magnium employees that included a list of twenty safety incidents of concern to Dr Jewell.
On 21 January 2023 Dr Jewell made the Eighteenth Complaint. He sent a series of text messages to Ms Save as to series of health and safety concerns that arose from an incident involving another employee and Dr Jewell wrote that the incident should be reported to WorkSafe.
On 23 January 2023 Dr Jewell made the Nineteenth Complaint. Dr Jewell sent a series of text messages to Ms Save that another employee was welding without protective gloves and that there was “clearly no learnings or enforcement”.
On 28 January 2023 Dr Jewell made the Twentieth Complaint by a series of text messages to Ms Save. He wrote, in part, that “I do suspect that Clayton is targeting me now … this is getting personal”.
On 7 March 2023 Dr Jewell made the Twenty-First Complaint. Dr Jewell sent an email to Ms Save that Mr Cross’ attitude and approach was “toxic, ill-informed, micro-managing, and trust destroying”.
I note on 15 March 2023, Dr Jewell made five complaints: the Twenty-Second Complaint to the Twenty-Sixth Complaint.
On 15 March 2023 Dr Jewell made the Twenty-Second Complaint by email to Ms Save as to Mr Cross’ unreasonable behaviour and that “this is getting towards bullying”.
On 15 March 2023 Dr Jewell made the Twenty-Third Complaint. He emailed Ms Save that Mr Cross had engaged in “bullying” behaviour and “belittled” him in a group email.
On 15 March 2023 Dr Jewell made the Twenty-Fourth Complaint. He emailed Ms Save that Mr Cross had been “aggressive” towards him in a group email.
On 15 March 2023 Dr Jewell made the Twenty-Fifth Complaint. Dr Jewell emailed Ms Save that Mr Cross had engaged in “exclusion, which is a form of bullying”.
On 15 March 2023 Dr Jewell made the Twenty-Sixth Complaint. Dr Jewell emailed Ms Save with the complaint that Mr Cross “should act professionally, and his actions today have damaged the reputation of the company”.
I pause on 15 March 2023 after the Twenty-Sixth Complaint, not because it was different in scope or content from the earlier complaints or the later complaints (namely, the Twenty-Seventh Complaint through until the Thirtieth Complaint which came later between 26 March 2023 and 20 April 2023), but because there was no apparent causal link between these earlier complaints and the dismissal at a later point in time. Even given the s. 361 reverse onus, Dr Jewell must establish that “the evidence is consistent with the hypothesis” that Magnium dismissed him for a prohibited reason (Celand, [155]). Dr Jewell made the First Complaint through until the Sixteenth Complaint in 2022. Magnium dismissed him from employment on 21 April 2023. Even with reference to the Twenty-Sixth Complaint, the most recent in time of this grouping made on 15 March 2023, any significance of these complaints was superseded by subsequent events.
Neither party suggested that any one of these complaints — the First Complaint to the Twenty-Sixth Complaint — had any special significance.
The passage below drawn from Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 is pertinent. There was a significant gap in time between Dr Jewell’s earlier complaints and the date of dismissal. In Cummins Bromberg J said of the facts in that case at [113]:
… The timing of the complaint relative to the act of dismissal needed to be considered. Was a complaint made over 16 months prior to the dismissal a substantial and operative reason at the time of the dismissal? Had any motivational effect that the complaint may have initially had upon Ms Beaulieu dissipated by the effluxion of time? Or, alternatively or perhaps relatedly, had any such effect been overtaken by other circumstances, for instance the making of the second or the third or the fourth or the fifth complaints or a combination of some or all of them? Whether the earliest complaint was overtaken by later complaints required the likely significance upon Ms Beaulieu of each complaint to be considered. For instance, the fifth complaint was a personal and serious complaint made directly against Ms Beaulieu. If that was a substantial and operative reason for Mr Keenan’s dismissal was, in that circumstance, a complaint made over 16 months prior to the dismissal about another employee also a substantial and operative reason for the dismissal?
Neither party developed a submission as to whether these earlier complaints had been overtaken by events — and were therefore diminished in significance by the effluxion of time — or whether or why it was submitted that these earlier complaints would have maintained a “motivational effect” on the dismissal decision taken some time later.
There was nothing about any one of the complaints — that is, the First Complaint to the Twenty-Sixth Complaint — or the cumulative effect of the twenty-six complaints that lead me to infer that the “positive” reasons Mr Cross gave for dismissing Dr Jewell were not in fact the real reason for the dismissal and in fact the real reason (or one of the real reasons) for the dismissal was one or more of these twenty-six complaints.
The Thirty Workplace Complaints were a subset of 131 written complaints
I also note that the Thirty Workplace Complaints were either additional to, or a subset of, 131 written complaints Dr Jewell made to Ms Save. Between 2 June 2022 until his dismissal Ms Save itemised that Dr Jewell sent 131 written complaints to her either by text message or email in connection with this employment with Magnium. The evidence did not explore how many of these complaints reached Mr Cross.
Illustratively, Dr Jewell’s written complaints to Ms Save — which were additional to his Thirty Workplace Complaints — included the following.
On 5 October 2022, Dr Jewell made a complaint that Mr Cross had brought his family members to the facility including confidential areas. Dr Jewell wrote that he had “walked out and told Clayton I won’t come back to site until he takes this seriously”. On 16 November 2022, Dr Jewell made a complaint to Ms Save that Mr Cross was altering work deadlines and “hearing what he wants to hear, not what he needs to hear”. On 22 November 2022, Dr Jewell made a complaint that if Mr Cross “can’t or won’t empower me to do what needs to be done to deliver, whatever the reason, then I can’t see a future for me or anyone else at Magnium” and that “breaches of safe design/operation continue”. On 25 November 2022, Dr Jewell made a complaint that Mr Cross was “simultaneously too powerful and too weak to give this a chance of anything but catastrophic failure”. On 28 November 2022, Dr Jewell made a complaint to Ms Save that Mr Dera had “betrayed” Dr Jewell, and that he was a “dangerous worker who Clayton has inoculated against repercussions”. On 4 December 2022, Dr Jewell set an email that contained numerous complaints about Mr Cross, Mr Dera and Mr Vlachos. He wrote that the lack of response to his complaints over the past months “leans towards tacit complicity”. On 7 March 2024, Dr Jewell made five separate complaints to Ms Save, including a complaint that Mr Cross was “still failing to recognise the validity of my criticisms or my proposal of a better solution, and instead making me the problem again and JP [Dera] my ‘victim’”.
Complaints proximate to the dismissal: the Twenty-Seventh Complaint to the Thirtieth Complaint
The oral evidence at trial focussed on the complaints proximate in time to the dismissal (as the relevant adverse action). It is necessary to examine more closely events closer in time to the dismissal between 24 March 2023 and 21 April 2023 (the date of dismissal). Bromberg J had said in Cummins at [114] that complaints proximate in time to the dismissal “at least prima facie may be regarded as likely to have been the most potent”. I turn next to place the Twenty-Seventh Complaint to the Thirtieth Complaint in the context of the chronology of events leading to dismissal.
On (Friday) 24 March 2023 I have noted that Mr Cross said that Mr Jewell assured him that documentation “detailing the operational requirements of plant” would be completed by Monday 27 March 2023. Mr Cross’ evidence was that Dr Jewell’s failure to provide that documentation in accordance with his assurance was the “most critical” issue in his decision to dismiss Dr Jewell and he “pretty well made” the decision to dismiss in late March 2023 when Dr Jewell did not provide the process documents.
On (Sunday evening) 26 March 2023 Mr Jewell provided a medical certificate as to personal leave that he would be absent from employment from 27 March 2023 until 31 March 2023.
Also, on 26 March 2023 Dr Jewell made the Twenty-Seventh Complaint. He emailed Ms Save that Mr Cross’ behaviour had caused him stress and anxiety and he needed to take some time off work to “recuperate and regroup”.
From (Monday) 27 March 2023 until (Friday) 14 April 2023 it was common ground that Dr Jewell was absent on personal leave; Magnium admitted that during that period he was temporarily absent within the meaning of s. 352.
In late March 2023, Mr Cross’ evidence was that he had a conversation with Ms Save in which he said:
We need to move on the restructure now or we’re not going to have a team. Look to see if we can use Daniel’s expertise on a consulting basis only. We seek his help when its needed and otherwise keep him outside the team
Also in late March 2023, Mr Cross’ evidence was that he said to Ms Save:
I’m organizing the recruitment of the Senior Process Engineer. I might need you to help with interviews and on boarding. Can you please chat with Daniel about warming him up for a transition to consultancy?
On 4 April 2023 Magnium advertised for a Senior Process Engineer on Seek.
On 17 April 2023 Dr Jewell and Ms Save had a telephone conversation. In that conversation Dr Jewell made the Twenty-Eighth Complaint. His complaint was that his responsibilities had been taken away from him and that he had been effectively demoted, that his role had been advertised while he was on paid personal leave and that he wanted to retain his CTO role and title and did not want to become an independent contractor or consultant.
In that conversation on 17 April 2023, it was common ground that Ms Save said to Dr Jewell that Mr Cross wanted to meet with him on 28 April 2023 to discuss his role “moving forward and how I could best contribute to the business”. Dr Jewell also said that Ms Save said to him:
[Mr] Cross did not want me to continue as Chief Technology Officer and rather wanted me to become “Special Counsel”, either as an employee or a contractor, but on the same remuneration and working from home full-time
In the evening of 18 April 2023 (at 5.39 pm), following the conversation of the previous day, Ms Save emailed Dr Jewell:
To try and keep everything moving, can you send me dot points of the tasks you think you could do for Magnium that would add the most value (e.g., writing patents, securing IP, other suggestions mentioned on yesterday’s call)? As we discussed on phone, we can look at your role working from home full-time on specific tasks, but not involved or having to do the day to day operations and smaller tasks (Clayton did mention he may have found a Process Engineer he wants to interview, so this person could do some of the day to day and onsite tasks).
As Clayton [Cross] wants me to look at developing a Job Description, so that both of you have something to review before next Friday. I would like to get your input, and then will combine it with Claytons too. I think by just defining your role, would be a big step forward, so there are clear accountabilities and responsibilities.
Clayton [Cross]confirmed that he would send you a lunch invite for next Friday. Let me know if he doesn’t when it gets closer (but put it in your calendar).
After 18 April 2023, in the period leading up to dismissal, Mr Cross did not speak to Mr Jewell.
On (Wednesday) 19 April 2023 (at 9.47 pm), Dr Jewell sent Mr Cross an email with the subject-line “basis of design document”. As I have noted above, Mr Cross was aggrieved about the content of the basis of design document. I repeat that Mr Cross’ evidence was that because Dr Jewell had not “signed off” on the document — had not taken accountability as he saw it — Mr Cross could not rely upon the document as his CTO’s verification that it was in order for Magnum to turn on its chemical reactor.
The Twenty-Ninth Complaint and the Thirtieth Complaints – 19 and 20 April 2023
Also, on 19 April 2023 (at 11.54 pm) Mr Jewell sent an email which both responded to Ms Save’s requests “for dot points of the tasks you think you could do for Magnium that would add the most value” (as she had requested in her email dated 18 April 2023) and made the Twenty-Ninth Complaint.
As to the dot points as to what Dr Jewell thought he could do for Magnium, Dr Jewell referred among other matters to:
In terms of my future value add I suggest as a starting point:
•Invention and patenting of Magnium IP, including defence against objections in various jurisdictions (as I did for the US with CSIRO’s patent)
•Establishment and development of commercial and technical relationships (as demonstrated with the German Aerospace Centre DLR)
As to his Twenty-Ninth Complaint, Dr Jewell’s complaint was that he was being “publicly lambasted” by Mr Cross for raising serious safety issues. Dr Jewell also made a complaint that Mr Cross had disclosed to other employees the reason for his personal leave and by that disclosure breached his privacy. Dr Jewell wrote:
“Also, it is completely unacceptable and unprofessional for [the Second Respondent] to be openly disclosing the reason for my personal leave, especially as it relates to a medical matter caused by his actions, and slanderous and inaccurate to claim that I have had a mental breakdown – This has to stop: just like his previous degrading and bullying actions I’ve already raised with you, he has crossed a very serious line.”
On 20 April 2023 (at 6.49 pm) Ms Save acknowledged receipt of Dr Jewell’s email from 19 April 2023 which contained his Twenty-Ninth Complaint. Ms Save responded in the following terms:
Thanks Daniel
Apologies, I only saw this in afternoon, as it went to my junk email (having issues with emails going there).
I will talk to Clayton about your last point too, so it can be addressed, as I’m not aware that this has been said to employees. I believe employees know that you went on personal leave for stress, but not sure on how it was communicated (some I believe you have also informed of this).
Let me review and look at it in more detail tomorrow, and of course talk with Clayton too.
On 20 April 2023 (at 7.52 pm) the correspondence between Dr Jewell and Ms Save continued when Dr Jewell sent a further email, his Thirtieth Workplace Complaint, in which he asked for his complaint about Mr Cross disclosing the reason for his personal leave to be treated as a “formal complaint” Dr Jewell wrote:
Hi Jane,
I'm telling you what I've been told by others, so you can confirm with Clayton all you like and I have no doubt he will deny it - but this is what was said. Furthermore, there was no need at all to even mention that I was off for stress leave, and it was not communicated beyond a limited group, and nor did it need to be. Personal information, particularly medical information, and especially mental health information, is beyond the scope of any announcement that needs to or should be made by anyone, especially not someone in his position.
…
This is not an isolated incident: Clayton clearly stated to Jason and Shannon at the least that I was "never going to turn on the reactor because I was too scared"….. - this is a disgraceful, disgusting, bullying, and wholly inappropriate way to treat employees, especially when they are on stress leave, quite aside from posting an advert on SEEK within just a few days that clearly validates that view, despite his protestations. I would like you to record this as a formal complaint as I'm tired of living this "he said, she said" nonsense, even when I'm openly accused of "grandstanding" and not assessing risks with "the proper facts", in or around the time that Clayton has called up and abused an external consultant for giving him an answer he didn't like.
…
Best regards,
Daniel
In her evidence, Ms Save indicated that she regarded the matters Dr Jewell had raised in his Thirtieth Workplace Complaint as “serious”.
Ms Save’s evidence was that she spoke to Mr Cross and to Dr Jewell — separately — on the evening of 20 April 2023 after the receipt of Dr Jewell’s Thirtieth Complaint. The gist of the conversations according to Ms Save (whose evidence I accept) was that Mr Cross acknowledged the importance of Dr Jewell’s privacy as to the reasons for his personal leave but did not believe he had breached it. Having spoken both to Mr Cross and Dr Jewell, Ms Save believed that she had “closed the loop” (T283:L26) as to Dr Jewell’s Thirtieth Complaint about Mr Cross having disclosed the reason for Dr Jewell’s personal leave.

Although the physical document was not evidence (there was an issue about producing a physical document from Ms Save’s telephone where an electronic version was stored) subsequently on the evening of 20 April 2023 (10.02 pm) Mr Cross sent a draft of a proposed communication to Dr Jewell that informed him that his employment was being made redundant. There was no reference to any workplace complaint in the communication Mr Cross drafted.
On 21 April 2023, the next morning, Ms Save emailed some text to Mr Cross that she suggested could form a redundancy letter to Dr Jewell.
Dismissal
Mr Cross went with his own version of the text for a dismissal letter to Dr Jewell. On 21 April 2023 (12.16pm) Mr Cross sent Dr Jewell an email titled “redundancy” ending his employment. In its relevant part the letter was as follows:
It is with regret that I am writing to inform you that your role of ‘Chief Technology Officer (CTO)’ at Magnium is being made redundant, effective immediately on Friday 21^st April 2023.
…
As per statutory obligations, you will be paid your two weeks’ notice period in lieu, plus any owed leave entitlements.
By 21 April 2023 there was no offer of Mr Jewell remaining in the Magnium organisation but “working from home” as a consultant or otherwise.
WHAT IS MY ANALYSIS AS TO THE REASONS FOR DISMISSAL?
Magnium admitted that the complaints were workplace complaints as defined in s. 341(1)(c)(ii)
Magnium admitted that Mr Jewell made the Thirty Workplace Complaints as a matter of “objective fact” (Tattsbett Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62, [119]).
Under s. 341(1)(c)(ii), “a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise” (Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46; [2019] FCAFC 16, [28]. There was no dispute that each of Dr Jewell’s Thirty Workplace Complaints was a complaint as defined in s. 341(1)(c)(ii) because Magnium admitted as much. That is, it admitted that each of the Thirty Workplace Complaints was properly characterised as a complaint within the meaning of s. 341(1)(c)(ii).
Was Mr Cross a reliable witness?
In final address, counsel for Dr Jewell submitted that Mr Cross was a witness “willing to say whatever he thought to be expedient in the moment” (T428:L14–15) and submitted that he was “making it up as he went along” (T429:L8).
In Grant, a Full Court majority had said that if a decision-maker’s testimony was reliable that was one way in which the s. 361 onus could be discharged. On the other hand, “contradictory evidence” including contradictory evidence given by the decision-maker might render the decision-maker’s evidence unreliable.
At the time he made his trial affidavit on 11 November 2024, Mr Cross acted for himself and for Magnium. That is, neither he nor Magnium, were then legally represented. In parts his affidavit is argumentative and discursive. Mr Cross conducted himself in the witness box and much the same way.
In the end, I have accepted that Mr Cross gave an account of the reasons why he dismissed Dr Jewell in a spontaneous and unvarnished way. I was reminded of what Lee J said in Transport Workers Union of Australia v Qantas Airways Ltd (2021) 308 IR 244; [2021] FCA 873 at [25]:
that the truth comes out of affidavits like water from a leaky well, whereas people come along and tell their story in the witness box, there might be a better chance of the account being given in a more spontaneous way, and it may save a lot of money and cost and time
Although some criticisms might be mounted of Mr Cross’ evidence, I have accepted as reliable his account that he dismissed Dr Jewell for the “positive” reasons he advanced: because he believed he had engaged in divisive behaviours at Magnium, was not accountable for progressing the project and was therefore not a good return on Magnium’s investment in his salary. I have accepted Mr Cross’ evidence that he acted for those reasons and not because Dr Jewell made the Thirty Workplace Complaints.
Of what significance is Mr Cross’ conflicting evidence about whether his belief that Dr Jewell broke a computer monitor was a reason for dismissal?
One issue on which Dr Jewell placed some emphasis as the basis for a submission that Mr Cross was a witness prepared to say anything to advance his case concerned a broken computer monitor. On 16 April 2023 Mr Charlie Bear, a Magnium employee, called Mr Cross and said that Mr Jewell was in the office and “looked like he was going through his desk drawers”.
On 17 April 2023 (the day Dr Jewell returned from personal leave) Mr Cross says he returned to the office and “noticed that on [Dr Jewell’s desk] was a specialist curved monitor that had been smashed”. Mr Cross continued in his trial affidavit at [134]:
Based on the events of 16 April 2023 I felt that Daniel had engaged in behaviours that were not aligned with continuing with the project. I had already lost trust in him to manage staff. An expensive monitor that had been damaged by Daniel and I believed that he had been snuck into the business at night and taken various business papers. I was seriously disappointed that Daniel's engagement with the project had descended into misconduct. I felt that his involvement with the project was no longer tenable and that any attempt to keep him in the project as a consultancy basis was not something that I would be comfortable with. I decided to proceed with terminating Daniel's employment and would do so on Friday 21 April 2023. It has been a practice of mine for years to terminate the employment of staff on a Friday to help avoid any disruption to staff during the working week.
On the same day as he made his trial affidavit on 11 November 2024, Mr Cross made another affidavit in connection with an interlocutory application. In that second affidavit Mr Cross had deposed as to his appearance in the court on 6 November 2024 when a previous listing of the trial had been adjourned:
… The applicant raised concerns regarding a claim in my affidavit pertaining to a damaged monitor, suggesting that this incident was a new ground for redundancy. I confirmed on record to the Court that this claim was not correct and did not contribute to any redundancy decision.
It is difficult to reconcile Mr Cross’ two statements: first, in his trial affidavit that “an expensive monitor… had been damaged” meaning Dr Jewell’s involvement with the project was “no longer tenable” and, second, his statement in his second affidavit that the damaged monitor “did not contribute to any redundancy decisions.”
Counsel for Magnium said that one false or discordant note in his evidence did not detract from the broad consistency of the reasons Mr Cross advanced for dismissing Dr Jewell from employment. I accept the submission of Counsel for Magnium. The issue as to the computer monitor went solely to Mr Cross’ credit. If in fact Mr Cross dismissed Dr Jewell from the employment because he damaged the computer screen dismissing him for that reason would not be prohibited under Part 3.1 of the Act.
Did Mr Cross make an admission by direct evidence that the workplace complaints were a reason for the dismissal?
Dr Jewell’s main case was that because Mr Cross’ evidence could not be accepted as reliable, Magnium had not discharged its onus under s. 361 to prove that the Thirty Workplace Complaints were not a substantial or operative reason for the dismissal.
Dr Jewell also submitted that there was direct evidence that Mr Cross had dismissed him because of the Thirty Workplace Complaints (or one or more of them). There had been a series of questions put to Mr Cross about the fact that as of 18 April 2023 Ms Save had written to Dr Jewell to request that he frame some “dot points” as to working from home, but that by 21 April 2023, that option was at an end, and Mr Cross dismissed Dr Jewell from Magnium with no option for him to work from home as a consultant or in any other capacity. That sequence of events raised the issue as to what changed between 18 April 2023 when Dr Jewell working from home was a possibility and 21 April 2023 when it was not. Dr Jewell’s “case theory” provided the answer in part by positing that it was the Twenty-Ninth Complaint and Thirtieth Complaint which complaints had been made between 18 and 21 April 2023 that were the immediate and operative reasons for the dismissal.
Mr Cross — in explaining what changed between 18 April and 21 April 2023 — said that he had already “decided to terminate” (T249: L7). He described the situation as “like a rebuttable presumption”. Asked what changed between 18 April and 21 April 2023, Mr Cross’ evidence was as follows (T249:L31–T250:L3):
So all I can say is that I’ve made the decision earlier to make him redundant or etcetera. If – I’m an optimist, and if Jane was able to persuade him, and she had the standing order to until that Friday, then she could have – but the major thing that changed was – literally, for me, was just knowing that he had essentially checked out by virtue of, you know – he had gone in, cleared out his desk. He had – you know, he had deleted all that information which I found out later. But the thing that struck me was his rep is instead of settling, probably the best way, instead of accepting the work from home, he was sending these emails making allegations of bullying. So he was – instead of being helpful to his – to be more tolerant, he was going that way, and to me it was just – he knew, and I – we kind of –it’s hard to describe. We kind of know each other pretty well. So he knew I was going to make him redundant because I hadn’t contacted him for three weeks; right? That’s a – that’s the longest time he’s never had contact with me. So I’ve cut him off; right? So he knows it’s coming. So, therefore, those emails were – he could have been – he could have gone polite. Clayton, let’s catch up. Let’s sort this out. Let’s break bread. I’m going to be a better person or – instead he went, Clayton, whatever he said, you know, you’re a – you know, you’re nut, you’re a bully, you’re trying to kill people. All the usual; right? So he had a couple of options; right? And then I’m thinking, well, based on all of that, you know, do I save the staff member X or, otherwise, I’ve got two staff members I have to make redundant.
Counsel for Dr Jewell submitted that what should be drawn from the passage above was that Mr Cross made an admission that the Twenty-Ninth and the Thirtieth Complaint were an immediate and operative reason for dismissal. The passage has to be taken in the context of all of the evidence. I accept Mr Cross’ evidence that he had already decided to terminate Dr Jewell’s employment. He had “pretty well made” his decision to dismiss Dr Jewell on 27 March 2023 but had delayed implementing the decision while Dr Jewell was on personal leave.
The phrase “rebuttable presumption” described his state of mind. Although Dr Jewell’s employment was saveable up until 21 April 2023, the Twenty-Ninth Complaint and the Thirtieth Complaint were a reason that Mr Cross did not move from his earlier decision to dismiss. Although the distinction may be a narrow one, in my assessment there is a distinction between the fact that the complaints were a reason that Mr Cross did not deviate from an earlier decision to dismiss and the complaints being an immediate and operative reason for dismissal. Mr Cross had an explanation for why he had not acted until the week of 17–21 April 2023 being that he believed that he could not dismiss Dr Jewell while he was on personal leave. It is not necessary that the employer establish that the reasons for the dismissal were “entirely dissociated” from the exercise of the workplace rights (BHP Coal, [14]).
What significance did the fact that Dr Jewell was a “serial complainer” have?
Mr Cross described Dr Jewell as a “serial complainer”. In answer to a question from me which was focused on the Twenty-Ninth Complaint and the Thirtieth Complaint Dr Jewell made on 19 and 20 April 2023 Mr Cross said: (T253:L13):
HIS HONOUR: - - - as to whether any of those matters shifted the dial. And if so, why? Or if not, why not?---
MR CROSS: Firstly, the complaints did not shift the dial because Daniel, in fairness, was a serial complainer, if I could use that description. So I blanked all that – I had to blank all that out, you know, when dealing with Daniel, for want of a better description. So to me - - -
Because there were so many complaints, although it is possible to hypothesise that the complaints proximate to the dismissal became the straws that broke the camel’s back, I accept Mr Cross’ evidence that he had blanked out Dr Jewell’s complaints. Although it is the employer who bears the onus, because Dr Jewell’s complaints had for months been a continuing feature of his employment at Magnium, there was no particular reason not to accept Mr Cross’ evidence to the effect that he simply blanked out Dr Jewell’s complaints.
In Cummins, Bromberg J had observed at [113] that part of the inquiry the trial judge ought to have made was what was the “motivational effect” of complaints made a long time before dismissal. Here, one factor to be considered in analysing the totality of the evidence is why I might be satisfied that complaints close in time to dismissal had a motivational effect on Mr Cross to dismiss Dr Jewell when so many earlier complaints had not had that motivational effect. Mr Cross had not taken retributive adverse action against Mr Cross for his first complaint, second complaint, third complaint or twenty-seventh complaint. There was no particular reason for Mr Cross to dismiss Dr Jewell because of his twenty-ninth complaint or his thirtieth complaint — or his 131^st complaint — when Mr Cross had not dismissed him because of any earlier complaint. There was nothing about the scope of the content of the Twenty-Ninth Complaint or the Thirtieth Complaint which particularly differentiated them from any earlier complaint.
Although there is a body of research sounding a cautionary note about the ability of judges to make accurate credibility findings based on demeanour (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, [31]; Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369, [147]) I put some subsidiary weight on the fact that Mr Cross’ witness box demeanour was that he seemed genuinely impervious to Dr Jewell’s pattern of complaints. His appearance and demeanour matched his words; he appeared to have blanked the complaints out.
Should I accept Mr Cross’ evidence as to the positive reasons he advanced as to why he dismissed Dr Jewell?
I find that Mr Cross dismissed Dr Jewell because of the “positive” reasons he advanced for Dr Jewell’s dismissal.
Dr Jewell points to various evidence which he says tends to show that Mr Cross’ opinions “were formed wrongly or unfairly” (Wong, above). He says that it was wrong and unfair for Mr Cross to criticise him for not done enough to assess explosion risk when that issue was outside Dr Jewell’s scope of responsibility by reference to communications in November 2022. He says that it was it was wrong for Mr Cross to criticise him for prioritising safety to ensure that Magnium complied with OHS regulations by registering the design of the pressure vessel with WorkSafe. He says that the fact that the “basis of design” document was incomplete was not, in fact, an impediment to progressing the project and there was no requirement for Dr Jewell formally to sign off on such a document before the reactor could be turned on.
I repeat that the issue is not whether Mr Cross’ criticisms of Dr Jewell were substantively or procedurally fair (Khiani, above) but whether those opinions, in fact, actuated the dismissal.
Suffice to say, Magnium has proved that Mr Cross (and it is Mr Cross’ state of mind that is attributed to Magnium under s. 793) genuinely held these opinions and that they were the reasons for which Mr Cross dismissed Dr Jewell.
For a COO to expect a CTO to have been closely involved in the assessment of “explosion risk” 12 months into his engagement in circumstances in which it was (one of) the most significant risks of the proposed chemical process was credible. Equally, it is credible that Mr Cross expected that Dr Jewell would have consulted with him before seeking advice which changed the position as to registration of the pressure vessel with its impact on what Magnium was trying to achieve. It is credible that 18 months into the process that Mr Cross was dissatisfied with not having received a basis of design document (he said he was assured he would receive) on 27 March 2023. It is credible that Mr Cross would be concerned that in a small technology team of five employees at least three employees – Mr Dera, Mr Belgrade and Mr Vlachos – had communicated to him real difficulties in working with Dr Jewell which provided a credible foundation for an opinion that Dr Jewell engaged in divisive workplace behaviours. As a start-up company it was credible that Mr Cross (and Magnium) would have real commercial concerns 18 months after Dr Jewell started employment that no magnesium had been produced but it was continuing to pay Dr Jewell’s substantial salary.
Mr Cross’ opinions were not of a type that lead me to conclude that they were “not, in fact, formed or did not relevantly actuate the respondent’s conduct” (Wong, [83]).
Has Magnium proved that the complaints were not a substantial or operative reason for dismissal?
As to its “negative” case, although it admitted Dr Jewell made Thirty Workplace Complaints it denied that those complaints - either individually or cumulatively - were a substantial or operative reason for his dismissal or one of multiple reasons for dismissal. In the main, I have concluded that Magnium proved that it did not dismiss Dr Jewell because of the Thirty Workplace Complaints because it proved it dismissed him because of the “positive” reasons I have set out above.
Without wishing artificially to partition off the First Complaint (made on 25 July 2022) to the Twenty-Sixth complaint (made on 15 March 2023) from the complaints made proximate to the dismissal, those earlier complaints were superseded by later events. Magnium has proved that those complaints were not a substantial or operative reason for dismissal.
A more difficult issue for me was whether Mr Cross’ evidence that he had decided to dismiss Dr Jewell from employment when he did not meet his assurance to provide the basis of design document on 27 March 2023 could be reconciled with Ms Save’s statements to Dr Jewell on 17 April 2023 that Dr Jewell had a role for to perform at Magnium albeit probably working from home and that Mr Cross was not planning to end his employment and wished to meet him for lunch on 28 April 2023. In a nutshell, if Mr Cross had already “pretty well made” the decision to dismiss Dr Jewell on 27 March 2023 why was Ms Save negotiating with him about working from home about three weeks later on 17 and 18 April 2023. One aspect of Dr Jewell’s case theory was that it was the complaints made after 18 April 2023 — namely the Twenty-Ninth Complaint and the Thirtieth Complaint — that were the immediate and operative reasons for Mr Cross’ ultimate decision to dismiss Dr Jewell from employment. They changed the landscapes after 18 April 2023. Chronologically, if Mr Cross had decided to dismiss Dr Jewell from employment on 27 March 2023 he would have done so then, not nearly four weeks later on 21 April 2023
Mr Cross said that from November 2022 that Ms Save had “standing instructions” (T248: L32) to negotiate for Dr Jewell to work from home. The better view of the evidence is that Mr Cross had decided - in his own mind - to dismiss Dr Jewell from employment by on or about 27 March 2023. He had not, however, expressly revoked Ms Save’s standing instructions to negotiate with him about working from home. His evidence which explained the delay between 27 March 2023 and 21 April 2023 was his belief that he could not act while Dr Jewell was on personal leave.

In her conversation with Dr Jewell on 17 April 2023 and her email to Dr Jewell on 18 April 2023 Ms Save was acting in accordance with the standing instructions she had had since November 2022 and not on the basis of any new instruction Mr Cross had given to her since 27 March 2023 which was inconsistent Mr Cross having “pretty well made” the decision to dismiss.
If Dr Jewell had provided a basis of design document that Mr Cross regarded as satisfactory on 19 April 2023, Mr Cross might have stepped back from the decision he had already “pretty well made” — the rebuttable presumption might have been rebutted — but that did not occur.
What is my conclusion as to the reasons for the dismissal?
I am satisfied that Magnium has proved that Dr Jewell’s workplace complaints within the meaning of s. 341(1)(c)(ii) were not a substantial and operative reason for his dismissal.
The substantial and operative reasons for Mr Cross’ decision was that, by the time of the Twenty-Ninth and Thirtieth Complaints, Mr Cross had formed an un-shiftable view of Dr Jewell as a divisive presence at Magnium, as someone who was not accountable for outcomes and was not going to assist Magnium to move ahead with its business goals. Magnium has proved that it was the “positive” reasons that actuated Mr Cross to dismiss Dr Jewell from employment. The fact that the decision was taken on about 27 March 2023 and not acted upon until 21 April 2023 was a product of Dr Jewell’s absence on personal leave and Mr Cross’ genuine belief that he could not move to dismiss Dr Jewell while he was on personal leave.
Dr Jewell provided the “basis of design” document on 19 April 2023. It did not change the decision Mr Cross had already made. Because Dr Jewell had returned from personal leave, Dr Jewell’s personal leave was no longer an impediment to Mr Cross acting to dismiss Dr Jewell. There was then a lapse of 24 hours in which Mr Cross took no action. As a matter of strict chronology, after Dr Jewell provided the “basis of design” document he made the Twenty-Ninth Complaint and the Thirtieth Complaint. Dr Jewell submitted I might draw an inference from the fact that as a matter of strict chronology Mr Cross dismissed Dr Jewell “abruptly” after the Twenty-Ninth Complaint and the Thirtieth Complaint and not in an available 24 hour period between Dr Jewell’s provision of the “basis of design” document he regarded as unsatisfactory and Dr Jewell’s making of the Twenty-Ninth and Thirtieth Complaints. Dr Jewell had only just returned from sick leave. The events occurred sufficiently close together that I do not draw any inference that Mr Cross acted because of the final two complaints because in the chronology of events they occurred later than the provision of the basis of design document.
Although I am concerned with Mr Cross’ state of mind and not that of Ms Save, Ms Save was particularly impressive witness, closely involved with both Dr Jewell and Mr Cross in the final week of Dr Jewell’s employment, 17 April – 21 April 2023. Ms Save’s evidence gave no support to a contention that it was either the Twenty-Ninth Complaint or the Thirtieth Complaint that actuated Mr Cross to dismiss Dr Jewell from employment.
On 21 April 2023, after he received the redundancy letter, Dr Jewell recorded a telephone conversation he had with Ms Save. In its relevant part, the recording was as follows:
Daniel Jewell:
So, I mean, I don't understand how it's reached the point where: we had a discussion yesterday and you asked me for dot points, which I gave you, and we were supposed to then be having a meeting next Friday, and I've received a letter of redundancy today, which is also immediately after I made a formal complaint… against Clayton.
Jane Save:
Yes… well, that's.. got.. absolutely.. nothing.. to.. do.. with it as they're two separate things. I think Clayton's been working on this, you know for, for a while even if you would go back Daniel to last November when you were thinking of leaving, we were still discussing, you know, can we change the role to suit? How do we make this.. work for the business. What should you be doing? Is consultancy a better way to move? So look, I think it's been ongoing for a long time and yeah, he just made the decision this morning…
There was no evidence that Mr Cross said anything at the time of his dismissal decision to Ms Save that would support a finding that the Thirty Workplace Complaints (or any one of them) was a substantial and operative reason for the dismissal.
ISSUE 2: DID MAGNIUM DISMISS DR JEWELL BECAUSE HE WAS TEMPORARILY ABSENT FROM WORK BECAUSE OF ILLNESS OR INJURY IN CONTRAVENTION OF S. 352?
Dr Jewell was temporarily absent from work because of illness between 1 February and 3 February 2023. Dr Jewell was also temporarily absent from work because of illness between 27 March 2023 and 14 April 2023.
As to each of these absences, Magnium admitted that Dr Jewell was temporarily absent within the meaning of s. 352 of the FW Act.
Dr Jewell’s first absence from 1 – 3 February 2023 was overtaken by subsequent events. There was no causal nexus between his first absence and the dismissal.
Dr Jewell’s temporary absence between 27 March 2023 and 14 April 2023 was temporally proximate to his dismissal.
The analysis of the s. 352 claim is very closely related to the analysis of whether Magnium has proved that it did not dismiss Dr Jewell because he made the Thirty Workplace Complaints. As set out above, I have found that Magnium dismissed Dr Jewell for the positive reasons Mr Cross advanced as to his belief that Dr Jewell engaged in divisive behaviours, was not accountable for progressing Magnium’s business goals and his ongoing salary was not a good investment for Magnium. I have accepted that Magnium acted for these reasons.
Mr Cross was sensitive to an employee’s right to be temporarily absent because of illness or injury. He was not prepared to dismiss Dr Jewell while he was temporarily absent between 27 March 2023 and 14 April 2023. Indeed, he perceived that he could not take any action as to Dr Jewell’s employment while he was absent on personal leave because of illness. The impact of Dr Jewell’s temporary absence was to delay Mr Cross’ implementation of a decision he had taken on about 26 March 2023 to dismiss Dr Jewell from employment when Dr Jewell did not provide the basis of design document in accordance with an assurance Mr Cross believed he had provided.
In point of fact, Dr Jewell’s temporary absence shielded him from adverse action at least to the extent that it delayed his dismissal until after his return from his temporary absence rather than the temporary absence being a substantial and operative reason for his dismissal.
I find that Magnium did not dismiss Dr Jewell from employment because he was temporarily absent in contravention of s. 352.
ISSUE 3: DID MAGNIUM BREACH S. 323(1) BY FAILING TO PAY DR JEWELL HIS SALARY FOR 17 – 21 APRIL 2023 WITHIN THE RELEVANT PERIOD?
Section 323 of the Act is as follows:
323 Method and frequency of payment
(1) [Manner of payment] An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full (except as provided by section 324); and
(b) in money by one, or a combination, of the methods referred to in subsection (2); and
(c) at least monthly
Section 323 operates so that an employer must pay salary and other amounts in full in relation to the performance of work “if they become payable during a relevant period” (see, Note 2, s. 323).
Dr Jewell claimed that Magnium did not pay him his salary “payable in relation to the performance of work” for the period 17 April 2023 to 21 April 2023 “at least monthly”: and thereby contravened s. 323(1)(c).
The only claim — in the “relevant period” — Dr Jewell pressed as to s. 323 was the claim as to Dr Jewell’s salary in the last week of his employment (T313:L43). He did not press a claim as to a breach of s. 323 as to entitlements due to him on the termination of his employment as to notice, redundancy pay or accrued and unused annual leave.
Magnium had not paid Dr Jewell his salary for the week 17–21 April 2023 when his employment ended on 21 April 2023. After the date of dismissal Magnium made a series of payments to Dr Jewell consequential on the end of his employment.
It was common ground that by the end of its series of payments after dismissal the last of which was made on or about 3 August 2023 Magnium had paid Dr Jewell his salary owing for his final week of employment 17–21 April 2023 and his termination entitlements. The issue between the parties was whether the payment was late — outside the “monthly” window in s. 323 — such that Magnium was exposed to the imposition of a civil penalty.
Magnium denied liability on the basis of a pay slip dated 2 May 2023 (Ex. R10). It submitted that the payslip recorded that it had made the salary payment for Dr Jewell’s final week of employment — 17–21 April 2023 — by 2 May 2023 within the monthly window and the “relevant period” and thereby did not contravene s. 323.
The other relevant evidence was an email of Scorpion Bookkeeping (Magnium’s external bookkeeper) to Dr Jewell dated 9 May 2023 which appeared to summarise post-termination payments and which appeared to attach the payslip dated 2 May 2023 (Ex. R10). In part that email read as follows:
Please find attached the Annual Leave payout (which is taxed) and the 2 weeks in lieu which falls entirely within the tax free threshold for a redundancy payment. Also attached is the payslip for the final working week in April.
The genuine redundancy payment has a tax-free base limit plus an amount for each year of service. For the 2022/23 income year the base limit is $11,591 plus $5,797 for one "complete" year of service {in this case it's $17,388); this has been accounted for on the attached payslip by a manual adjustment to the PAYG.
…
The Net payment for annual leave payout and two weeks in lieu of notice is: $35,633.95.
Since it appears you were not paid for the 38 hours from 17-21 April this will need to be added to the amount owing; the Net payment for the 38 hours in the final working week ending 21 April 2023 is: $4,637.46.
Total of Net Payments: $40,271.41.
Amount pay on the 3^rd of May is $32,292.44.
Amount Owing to Daniel Jewell: $7,978.97.
I’ll forward that over to Clayton to pay you.
By reference to that email, most of the employment entitlements — salary or end of employment entitlements — owing referable to Dr Jewell had been remedied by 9 May 2023. Nonetheless, there remained an amount owing of $7,978.97.
Magnium fixed the shortfall as to the outstanding amount of $7,978.97 on or about 3 August 2023.
The s. 323 dispute between the parties therefore devolved to whether the last week’s salary of $6,663.46 gross ($4,637.46 net) was paid on 2 May 2023 in line with the payslip or whether it was not paid until the remaining shortfall was fixed on 3 August 2023, a date later than s. 323(1) permitted.
Dr Jewell carries the onus. Section 323 is a civil penalty provision. On the face of the 2 May 2023 payslip for the pay period 17–30 April 2023, Magnium paid Dr Jewell his ordinary hours “38.0000” hours for the pay period 17–30 April 2023 on or about 2 May 2023 within the one month window s. 323 permits. I place greater weight on the payslip than any contrary inference to be drawn from the bookkeeper’s commentary as to payments made or still outstanding in his email dated 9 May 2023. Dr Jewell submitted that I ought to infer that the $4,637.36 was not paid until 3 August 2023 because the bookkeeper wrote:
Since it appears you were not paid for the 38 hours from 17-21 April this will need to be added to the amount owing; the Net payment for the 38 hours in the final working week ending 21 April 2023 is: $4,637.46.
I do not draw that inference. The bookkeeper went no further than to recognise that payments were due to Dr Jewell for salary, notice, redundancy pay and annual leave following the end of his employment and to tally the total amount owing. The email recognises that $32,292.44 had been paid and $7,978.97 was outstanding. The bookkeeper did not differentiate which of the outstanding entitlements had been paid (and which had not) such that I could conclude on the balance of probabilities that the 17–21 April 2023 salary was part of the $7,978.97 not fixed until 3 August 2023.
The payslip for the pay period 17–30 April 2023 with a payment date of 2 May 2023 records that there was a net payment of $4,637.46 on 2 May 2023 which was the net pay for Dr Jewell’s ordinary 38 hours for the week 17–21 April 2023. There was no evidence that Dr Jewell did not receive that amount on 2 May 2023.
The better view of the evidence is that Magnium had paid the outstanding salary during the relevant period as required by s.323(1). As of 9 May 2023, the $7,978.97 outstanding to make good all of Dr Jewell’s entitlements consequential on the end of his employment was a fraction of his notice, redundancy pay and accrued and unused annual leave.
Dr Jewell has not proved any contravention of s. 323(1).
ISSUE 4 – IS MR CROSS LIABLE AS AN ACCESSORY?
Part 3.1 - The General Protections Claims
The claims against Mr Cross were made on the basis that he was involved in Magnium’s contraventions within the meaning of s. 550 of the FW Act.
Because accessorial liability is ordinarily pendent liability dependent on proving the claim against the primary contravener, it follows that because I have dismissed the general protections claims against Magnium, I will dismiss the claims against Mr Cross that he was involved in Magnium’s contraventions of the general protections. Because there was no relevant contravention by Magnium, it follows that there was no contravention for Mr Cross to be involved in.
The Section 323(1) claim
By the same reasoning, because Dr Jewell has not proved his s. 323 claim against Magnium, Mr Cross cannot be an accessory to a contravention not proved against the principal contravener.
The Entitlements Claims
Magnium has admitted contraventions as to the late payment in lieu of notice (s. 117), late payment of redundancy pay (s. 119) and the late payment of accrued and unused annual leave [s. 90(2)].
In Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 White J said at [176]:
Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful.
In this case, Mr Cross’ evidence was at [152]:
It has always been my intention that Magnium pays its staff what they are entitled to under the law. I recall that in early May 2023 Jane [Save] raised with me whether Magnium employed 15 or more employees. I assessed that it did not and informed Jane of this. I am aware that Daniel [Jewell] subsequently disputed the number of employees retained by Magnium such that the small business exemption to redundancy did not apply. To the best of my knowledge I instructed Mr Konovalov to make an additional payment Daniel representing 4 weeks' severance pay, being $26,653.84. I did so in order to avoid any dispute as to whether or not the small business exemption applied.
Mr Cross was not challenged as to this part of his evidence. An essential element of the contravention as to non-payment of redundancy pay was knowledge that Magnium had 15 or more employees. Mr Cross denied that he had this knowledge and was not challenged on his evidence. The claim as to intentional participation in the late payment of redundancy pay which contravened s. 119 of the Act cannot be made out.
As to late payment of notice and accrued and unused annual leave Mr Cross’ evidence was at [153]:
153. I recall that in late July 2023, following the conciliation conference in the Fair Work Commission of the dispute between Daniel and Magnium, Mr Konovalov informed me that Magnium had not paid Daniel for his full termination pay. I said to Mr Konovalov "What do you mean we haven't paid Daniel? I thought you sorted this out in May?" Mr Konovalov said "There was an addition $7,700 or so that needed to be paid". I said, "Whatever it is, fix it up straight away". As a result of this conversation an additional payroll payment was made to Daniel of $7,978.97 on 8 August 2023.
Mr Cross was also not challenged as to this aspect of his evidence. Although Mr Cross was the sole decision-maker as to Dr Jewell’s dismissal, I do not infer that he would have had actual knowledge as to payroll issues. It is apparent that Magnium had external payroll support (Scorpion Bookkeeping) and external HR support (Ms Save). I note that Mr Cross was not a named recipient of the email of Scorpion Bookkeeping dated 9 May 2023.
Mr Cross’ evidence was that he did not know that Dr Jewell had not been paid his full termination entitlement until sometime after a Fair Work Commission conciliation conference in late July 2023. An essential matter going to the contravention of the non-payment of the payment in lieu of notice, the redundancy pay and the accrued and annual leave is that Mr Cross knew that Magnium had not paid Dr Jewell those amounts on termination. Dr Jewell has not proved that Mr Cross had knowledge of those “essential matters” that Dr Jewell had not in fact been paid.
Dr Jewell has not proved the accessorial liability claim against Mr Cross that he was involved in Magnium’s admitted contraventions as to Dr Jewell’s entitlements.
MAGNIUM’S ADMISSIONS – NOTICE, REDUNDANCY PAY, ACCRUED AND UNUSED ANNUAL LEAVE
Although the case principally concerned Dr Jewell’s claims under Part 3.1 of the Act, as I have noted, Magnium made certain admissions as to other claims of Dr Jewell as to contraventions of s. 44 of the Act. Magnium admitted that it contravened provisions of the National Employment Standards as to non-payment to Dr Jewell of notice (s. 117), redundancy pay (s. 119) and unpaid accrued and unused annual leave (s. 90).
Magnium had to make payments as to notice, redundancy pay and accrued and unused annual leave as at the date of the dismissal of Dr Jewell. It did not do so. It late paid these entitlements.
Because I heard the trial only as to liability, I will make three declarations as to contraventions of s. 44 of the FW Act or to Magnium’s failure to comply with the National Employment Standards as to s. 117 (notice), s. 119 (redundancy pay) and s. 90(2) (annual leave) (orders 1–3). Because these entitlements have now been paid – albeit late – there is no claim for compensation as to the contraventions.
CLAIMS NOT PRESSED
Dr Jewell did not ultimately press a claim that Magnium dismissed him in contravention of s. 351. It is not necessary further to address this claim.
Dr Jewell did not press claims of contraventions of the Professional Employees Award 2020. I say no more about them.
NEXT STEPS
Except for the declarations set out above, I will otherwise dismiss the application.
Any costs application ought to be made within 28 days.
I will make directions ahead of a hearing as to penalties and as to any consequential matters including directions should either party make a costs application.

I certify that the preceding two hundred and eleven (211) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.
Associate:
Dated: 20 February 2025

File number:	MLG 1325 of 2023
Judgment of:	JUDGE CHAMPION
Date of judgment:	20 February 2025
Catchwords:	FAIR WORK – General Protections – Whether the employer dismissed the employee from employment because he had made workplace complaints – Whether the employer dismissed the employee from employment because he was temporarily absent from work because of illness – Where the employer dismissed the employee because of concerns about the employee’s performance and not because of workplace complaints or because he was temporarily absent – General protections claim dismissed FAIR WORK – Section 323(1) – Requirement for an employer to pay an employee amounts payable to the employee in relation to the performance of work in full at least monthly – Whether employer did not pay the employee’s salary for the final week of his employment during the relevant period – Application as to contravention of s. 323(1) dismissed FAIR WORK – National employment standards - Where the employer made admissions that it had not made a payment in lieu of notice, paid redundancy pay or paid accrued and unused annual leave to the employee as at the date of dismissal – Where the employer paid those entitlements at a later date –Declarations as to contraventions made FAIR WORK – Accessorial liability – Where the Second Respondent was not an intentional participant in the primary contravener’s contraventions - Claim against the Second Respondent for accessorial liability dismissed
Legislation:	Fair Work Act 2009 (Cth) ss. 44, 90, 117, 119, 323, 341, 351, 352, 361, 550, 793
Cases cited:	Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306; [2017] FCAFC 222 CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41 Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46; [2019] FCAFC 16 Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369 Pilbrow v University of Melbourne [2024] FCA 1140 Tattsbett Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62 Transport Workers Union of Australia v Qantas Airways Ltd (2021) 308 IR 244; [2021] FCA 873 Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184; 246 IR 441 Wong v National Australia Bank Limited [2021] FCA 671
Division:	Division 2 General Federal Law
Number of paragraphs:	211
Date of last submissions:	20 December 2024
Date of hearing:	16–20 December 2024
Place:	Melbourne
Counsel for the Applicant:	Mr White
Solicitor for the Applicant:	Jewell Hancock Employment Lawyers
Counsel for the Respondent:	Mr Pym
Solicitor for the Respondent:	Barry Nilsson

MLG 1325 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	DANIEL JEWELL Applicant
AND:	MAGNIUM AUSTRALIA PTY LTD First Respondent CLAYTON CROSS Second Respondent

ORDER MADE BY:	JUDGE CHAMPION
DATE OF ORDER:	20 FEBRUARY 2025