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

1. Mr Devamitta said as to the logbooks in April 2023 (T180:L8-10):

"we really wanted to come out of this problem because somebody else will come from outside, finding out and grounding the fleet, I mean, will be a disaster".

[Emphasis added]

1. Direct testimony from the decision-maker as to why the adverse action was taken can discharge the burden imposed by s. 361 (Barclay, [45]; [71]). I accept Mr Woodland's direct testimony. It is supported by contemporaneous documents, notably his email dated 12 April 2023. It is rational and logical that the owner and director of an aircraft maintenance business would be seriously concerned about logbooks not being up-to-date. Other senior employees, namely Mr Maharaj and Mr Devamitta, supported Mr Woodland's testimony about the seriousness of the issues involved. It is a substantial finding for me to reject the evidence of each of Mr Woodland, Mr Maharaj and Mr Devamitta and to find that none of those genuinely held the concerns they professed to hold. I do not so do. I accept Mr Woodland as the decision-maker in fact held the negative opinions he professed to have about Mr Clerke's performance and in fact he acted to dismiss Mr Clerke for those reasons (see: Wong, above).

1. The Respondents also disavowed that any of the First, Second, Third, Fifth or Sixth Complaints formed a substantial or operative reason for dismissing Mr Clerke.
2. Previously in these reasons I concluded that Mr Clerke has not proved that the First, Third and Fifth "Complaints" were complaints within the meaning of s. 341(1)(c) and the reverse onus in s. 361 is not engaged. Even if I am wrong about that and in fact any of the First, Third and Fifth "Complaints" were complaints within the meaning of s. 341(1)(c), Vortex has proved that it did not dismiss Mr Clerke because of those complaints or any one of them.

1. Mr Clerke made the First Complaint in July 2021 and the Second Complaint in August 2021. Proximate to the dates of the making of those complaints, Vortex did not take adverse action against Mr Clerke at that time. In fact, Vortex took action favourable to Mr Clerke and gave him a backdated salary increase.
2. As to why Vortex dismissed Mr Clerke from employment on 1 June 2023, as Bromberg J observed in Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 at [114] any complaint proximate in time to the dismissal "at least prima facie may be regarded as likely to have been the most potent" in actuating a dismissal. There was nothing in the evidence that would lead me to discount the explanation Mr Woodland gave as to his actual reasons for dismissal and having rejected those stated reasons find, contrary to the reasons Mr Woodland gave, Mr Clerke's First Complaint and Second Complaint made nearly two years earlier -in July and August 2021 - were "substantial or operative" factors in the dismissal. The substantial gap of time between the complaints and the dismissal weighs significantly against such a conclusion. In Cummins, Bromberg J at [113] noted that "the time of the complaint relative to the act of dismissal needed to be considered". Although ultimately in Cummins the appeal court's order was to remit certain matters for reconsideration, Bromberg J asked in his reasons whether "any motivational effect that the complaint may initially have... had...[had] dissipated by the effluxion of time...[or] been overtaken by other circumstances". In this case, there was no causal nexus between complaints made in July and August 2021 and the dismissal in 2023. There was every reason to think that if the First Complaint and the Second Complaint had a motivational effect in mid-2021 - itself doubtful given that Vortex's action at the time was not adverse to the Applicant but favourable to him by way of the grant of a salary increase - by early 2023 any motivational effect had dissipated by the effluxion of time.

1. The Applicant submitted that "importantly the email that was Complaint 3 was quoted verbatim in the third warning letter" (Ex A5, [60]). The Applicant further submitted that:

65. Mr Woodland conceded that he relied on this email in the disciplinary process and interpreted it as a refusal to communicate rather than a legitimate workplace concern (T.284). He further conceded that the written warnings that he emailed the Applicant on 20 April 2023, which included him taking umbrage in the third warning with the abusive behavior by Mr Tucker, reflected his reasons for dismissing the Applicant.

66. It follows that the Court should find that the Respondents have failed to rebut the s.361 presumption that Complaint 3 was a substantive and operational reason for the dismissal.

1. The submission was put on the basis that because Mr Woodland quoted verbatim from the Third "Complaint" in the third warning letter - and he himself said that the warning letters set out his reasons for dismissing Mr Clerke - it must necessarily follow that the Third "Complaint" was a substantial or operative factor for the dismissal.
2. Proceeding on the basis that I am wrong and that the Third "Complaint" was a complaint within the meaning of s. 341(1)(c), the s. 361 onus does not mean that it is necessary for an employer to prove that the reasons for the dismissal were "entirely dissociated" from the exercise of the workplace rights (CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41, [14]; Barclay, [62]). I can and do draw a distinction between a reference to a complaint - the Applicant's statement that I will walk away if voices are raised said to constitute his Third Complaint and quoted in the third warning letter - and the identification of a "substantial or operative" reason for adverse action.
3. I accept the Respondents' submission as to the Third "Complaint" that Mr Woodland's concern was not the fact of the complaint but was about issues of communication between senior employees in a small business, namely Mr Clerke as Chief Engineer and Mr Tucker as the CEO. Mr Clerke's email that he was going to walk away if voices were raised "happened to be the mode by which issues perceived to reflect poorly on [his] performance happened to come to Mr Woodland's attention" (see Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 786, [783]). Mr Clerke's concern was not the email it was about communication between Mr Clerke and upper management. A distinction can be drawn between the complaint which provided the relevant context only and the reason for the dismissal.
4. I accept Mr Woodland's evidence that a reason for dismissal (among others) was that he was dissatisfied with Mr Clerke's communication with upper-managers (namely him and Mr Tucker), as distinct from the fact that he had made a complaint about Mr Tucker raising his voice to him.

1. Again, proceeding on the basis that I am wrong, and that the Fifth "Complaint" was a complaint within the meaning of s. 341(1)(c), Vortex has proved Mr Clerke's complaint that he was working long hours on 13 April 2023 was not a substantial or operative reason for the dismissal.
2. I have already noted a striking aspect of the evidence was that by 13 April 2023 Mr Woodland regarded Mr Clerke as a "dead man walking" because the log books were "wildly non-compliant". Mr Woodland's focus was on the business risk of non-compliant aircraft maintenance logbooks. In closing submissions (Ex A5, [81]), the Applicant pointed to some cross examination of Mr Woodland as to the Fifth Complaint in which there was the following exchange (T289:L16-26):

COUNSEL: So, what you're saying there is when you're making your decision to terminate his employment - correct? So that's right at the end? You considered what he said in his email of 13 April 2023?

MR WOODLAND: I considered all of his aspects of underperformance when I was making my decisions about

COUNSEL: Yes. Yes. But the question I asked you was you took into account that particular email, the one of 13 April 2023?

MR WOODLAND: Okay. Yes. That's what it says.

COUNSEL: Yes. And particularly you took into account what you considered were his excuses in that email of 13 April 2023?

MR WOODLAND: Yes. That's what it says.

1. The fact that Mr Woodland "took into account" the email dated 13 April 2023 - which comprised the Fifth "Complaint" - does not mean that Vortex has failed to discharge its onus. As I have already said, Vortex need not prove that the dismissal was "dissociated" from any complaint (BHP Coal). Vortex has proved that it did not dismiss Mr Clerke because of any complaint in that 13 April 2023 email about long hours. The substantial and operative reason for the dismissal was Vortex's concern about Mr Clerke's performance, a concern genuinely held, even though there was a difference between the parties as to whether Vortex's concerns were soundly based. Mr Clerke complained about long hours. Mr Woodland dismissed him because he did not keep the logbooks up-to-date.
2. To some extent, the Applicant's submissions that the reasons for the dismissal were "not rooted in objective performance deficiencies" (Ex A5, [83]) and that there was "no structured or meaningful performance management process" (Ex A5, [84]) invites me to consider this matter as an unfair dismissal rather than a general protections application (Cf Khiani, above). Provided Mr Woodland genuinely held the concern about Mr Clerke's performance and acted because of that reason, and did not act because of the complaint(s), it is not necessary to decide whether Mr Woodland's concerns about Mr Clerke's performance were sound, defensible or well-founded.

1. In his final submissions Mr Clerke submitted that "the evidence establishes that the dismissal occurred ... on or about 20 April 2023" (Ex A5, [17]). The first thing to be said about the Sixth Complaint (the lawyer's letter) is that a complaint made on 24 April 2023 could not be a reason for dismissal which occurred earlier in time on 20 April 2023 which was the Applicant's case.
2. If it is accepted that Mr Clerke was dismissed on 20 April 2023, as a matter of elemental chronology, Mr Woodland cannot have been actuated to dismiss Mr Clerke because of a lawyer's letter sent four days later on 24 April 2023.
3. Even though a claim that Mr Clerke was dismissed on 20 April 2023 because of a complaint he made on 24 April 2023 cannot be maintained, in circumstances in which I have found that the dismissal in fact occurred on 1 June 2023, the Respondents have in any event proved that Vortex did not dismiss Mr Clerke because of the Sixth Complaint.
4. Returning then to the language that Mr Woodland deployed of a "dead man walking", the die had been cast before 24 April 2023, or as the Respondents put it, Mr Woodland had earlier formed a strong view on or about 12 April 2023. Mr Woodland said in cross examination that he intended to "sit down and talk about" the issues on 20 April 2023 (T:297:23). When that did not occur, he put matters down on paper by way of the three written warnings and abided Mr Clerke's request not to be contacted as he "asked for". Then, as Mr Woodland put it "[Mr Clerke] lawyered up, and the rest is history" (Mr Woodman, T297: 26-27). It was Mr Woodland's performance concerns that had largely crystallised by 12 April 2023 and not any complaint set out in the letter dated 24 April 2023 that constituted the substantial or operative reasons for the dismissal. By the time Mr Clerke "lawyered up" the decision had in practical terms been made but not yet carried into effect.
5. Vortex has proved that the Sixth Complaint set out in the lawyer's letter was not a substantial or operative reason for the dismissal.

Conclusion: Vortex has proved that it did not take adverse action against Mr Clerke in contravention of Part 3.1 of the FW Act

1. In conclusion, I accept Mr Woodland's testimony that Vortex dismissed Mr Clerke because of performance concerns. I find that Mr Woodland was the sole decision-maker. Mr Woodland dismissed Mr Clerke because of his performance concerns about Mr Clerke's accountability for timelines on aircraft maintenance, because of concerns about unsatisfactory communication with management and because aircraft maintenance logbooks had not been kept up to date, all matters for which Mr Clerke was ultimately responsible as the Chief Engineer. I conclude that Vortex discharged its onus under s. 361 to prove that the Second Complaint and the Sixth Complaint were not substantial or operative reasons for the dismissal. The Second Complaint was made in August 2021. Any motivational effect it may have had in August 2021 for adverse action had dissipated by the effluxion of time by April 2023. As to the Sixth Complaint, it is apparent that by the date it was made on 24 April 2023, Mr Woodland already held strong views that Mr Clerke's performance was unsatisfactory. The question is not whether those views were sound defensible or well-founded, but Vortex has proved that Mr Woodland genuinely held those views, and it was because of those views that Vortex dismissed Mr Clerke. Finally, if I am wrong, and the first, third and fifth communications were in fact "complaints" within the meaning of s. 341(1)(c), Vortex has proved its positive case that it acted because of performance concerns and proved its negative case that those First, Third and/or Fifth "complaints" (individually or collectively) were not substantial or operative reasons for the dismissal.
2. The result is that the order I will make is to dismiss Mr Clerke's general protections claim against Vortex.

1. Mr Clerke brought an accessorial liability claim against Mr Woodland on the basis that he was involved (within the meaning of s. 550 of the Act) in Vortex's contravention.
2. Because accessorial liability is ordinarily pendent liability: that is, ordinarily dependent on proving the claim against the primary contravener, it follows in this case that because I have dismissed the general protections claims against Vortex, I will also dismiss the claim against Mr Woodland that he was involved in any contravention of Vortex.

1. In the very different context of Roberts-Smith v Fairfax Media Publications Pty Ltd (No. 41) [2023] FCA 555, Besanko J noted that he for some time during the running of that case assumed that he would assess damages on the hypothetical basis that he was wrong because it is generally desirable for a trial judge to resolve as many issues as possible. Besanko J concluded that "largely because of the significant number of possible alternative outcomes if I am wrong ... [the assessment of damages] would not be an appropriate or useful exercise" (Roberts-Smith, [2618]). I have considered whether I ought appropriately or usefully assess compensation under s. 545(2)(b) in case I am wrong.
2. In this case - after 20 April 2023 - Mr Clerke issued 3 invoices dated 28 May 2023, 5 June 2023 and 22 June 2023 for work as a contractor for which he was paid $5,698 (Ex R9). On 1 July 2023 Mr Clerke commenced employment with Pen Jett Pty Ltd on an annual salary of $120,000 (SOAF, [22]); $35,000 less annually than the salary he earned at Vortex at the end of his employment. Between 20 April 2023 and 1 June 2023 Vortex paid Mr Clerke his salary, by way of weekly annual leave payments.
3. For the same reasons that Besanko J gave in Roberts-Smith, I have concluded that for me to determine compensation on a counterfactual basis under s. 545(2)(b) "because of the significant number of possible alternative outcomes if I am wrong would not be an appropriate or useful exercise." Different scenarios may arise if in fact the correct finding was that Vortex dismissed Mr Clerke because of the First Complaint, Second Complaint, Third Complaint, Fifth Complaint or Sixth Complaint (or a presently unknown combination of them). As a result, I have decided not to assess compensation on a 'what if I am wrong' basis.

The First Respondent's admitted contravention of section 44

1. Vortex admitted that it did not provide notice or payment in lieu of notice to Mr Clerke under s. 117(2)(b) because it did not provide "notice of the termination before it took effect or pay in lieu of notice until 17 April 2025" (Amended Defence, 21(b)). The requirement to provide "notice of termination" as a National Employment Standard is a minimum standard which cannot be "displaced" under s. 61(1) and s. 61(2)(j) of the FW Act. Vortex made the notice payment - very late, on 17 April 2025 - some 22 months after the date Vortex itself identified as the date of dismissal (and I have found in fact to be the date of dismissal), 1 June 2023.
2. I note that there is no FWC certificate jurisdictional prerequisite to the commencement of a court application as to a contravention of s. 44 of the FW Act.
3. There is potentially one residual issue as to compensation as to the notice payment concerning superannuation. At trial it was unknown whether superannuation had been paid on the notice payment: given that the 17 April 2025 notice payment was made only shortly before trial, the issue may only have been one of timing with superannuation paid subsequently as part of recurrent employer quarterly superannuation contributions. Vortex's position was to acknowledge that "super is payable on payment in lieu of notice" (T372:L41). I will hold over any issue of compensation on the superannuation element of the notice payment as part of the penalty hearing.
4. I will make a declaration as to the contravention of s. 44. I will list a further hearing as to superannuation on the notice payment, the appropriate penalty (if any) under s. 546(1) as to the admitted contravention of s. 44 of the FW Act and any consequential issues.

The Applicant did not make a claim of accessorial liability against the Second Respondent as to a contravention of s. 44

1. As to the notice contravention claim, Mr Clerke did not plead an accessorial liability claim against Mr Woodland, the Second Respondent. In his Prayer for Relief Mr Clerke did seek a remedy by way of a declaration and a penalty against Mr Woodland as to the s. 44 claim (ASOC, Prayer for Relief, paras G and H). Mr Clerke reproduced that claim against Mr Woodland in a document he tendered during trial titled "Further Amended Orders Sought By The Applicant" (Ex A4). The remedy Mr Clerke seeks against Mr Woodland in the Prayer for Relief is not supported by a pleaded claim in the body of the Amended Statement of Claim as to the notice issue. The notice claim is pleaded only against Vortex, as the First Respondent (ASOC, [19]-[21]). Because Mr Clerke seeks civil penalties, the Second Respondent was "entitled to be told clearly and precisely in the ... ASOC what case it was [he] had to meet". Mr Woodland has not been told "clearly and precisely" that there was a claim against him as an accessory as to the s. 44 claim (Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83, [49]-[50]).
2. If I am wrong about that and in fact the case was sufficiently pleaded because of the references to it in the Prayer for Relief, for an accessory to be an intentional participant in a contravention "the person must intentionally participate in the contravention with the requisite intention". It is not necessary that the accessory should appreciate that the conduct in question is unlawful (Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, [176]). As Mr Clerke ultimately argued the case, he submitted that the date of dismissal was 20 April 2023. An essential element of the accessorial liability case, as argued, is that Mr Woodland knew the dismissal date was 20 April 2023. In fact, the Respondents have proved that the date of dismissal was 1 June 2023. I accept an alternative case might have been run - perhaps readily run - against Mr Woodland on the basis that he was an accessory to a contravention on 1 June 2023, but it is not appropriate for me to envision, and then find proved, an alternative case not pleaded or explored in the evidence in reasons for judgment.
3. I will make a declaration as to contravention of s. 44 only against the First Respondent and not against the Second Respondent.

1. I will list the matter for a hearing as to compensation (if any) or other order on the superannuation element of the notice payment, penalty (if any) as to the admitted s. 44 contravention and any consequential matters. I will make orders for the filing and service of submissions and material before the hearing.

1. I will reserve the parties' positions as to costs. Noting as. 570 of the FW Act, unless both parties agree to another approach, I will consider costs issues (if any) at a third stage after my reasons for judgment as to penalty and other issues.

I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.