[Peetwo]

GlenB embuggerance update: 11/08/22

Via the AP email chains:

11/08/22

Ombudsman Reference 2019-713834.

Dear Catherine

Thankyou for your time on the phone yesterday (10/08/22).

I think the approach of breaking the matter down into the three topics will assist in handling what is obviously a technically challenging matter.

1. The direction that my continuing employment was untenable.
   
2. The closure of MFT, my flying school of more than a decade.
   
3. The closure of APTA,
   

Today we covered topics one and two only and will talk again regarding topic three.

On topic one, I believe I have communicated the following.

The Head of Operations position requires a formal application to CASA, a CASA assessment and interview, and a CASA approval. Without that CASA approval, an individual is not able to operate in the role of Head of Operations. The position is dependent on that continuing CASA approval. If CASA deem the holder not to be a fit and proper person, CASA has procedures in their Enforcement Manual accessed via this link: https://www.dropbox.com/s/e4g6j45mpviqon...l.pdf?dl=0

The manual in its entirety is a pertinent read, but I draw your attention to pages 6-33 in particular. It outlines the position of the Chief Pilot. That was the terminology prior to the legislative changes. That role is now the Head of Operations (HOO), being one of the three legislated positions in the legislation. Further details of that role can be accessed here Civil Aviation Safety

Regulations 1998 (legislation.gov.au) at CASR 142.185 and CASR 142.190.

Appendix Four of that same document addresses the “fit and proper person”

The ICC response to this matter is attached for your reference: https://www.dropbox.com/s/h1dwih4f30jb8h...e.pdf?dl=0

As you are aware I believe there was a breach of obligations under administrative law, CASA own procedures, natural justice and procedural fairness.

On 27th August 2019, the CASA Regional Manager sent an email stating that my continuing employment as the “HOO is no longer tenable with the comments that Mr Buckley is making publicly.”

I acknowledge that we had a discussion as to whether that direction equates to CASA declaring me not to be a fit and proper person and therefore not able to maintain the role of HOO.

As you are aware I am of the opinion that is a very clear direction from CASA to the Employer that my continuing employment in that role was no longer tenable. I cannot possibly imagine a clearer direction.

The mere fact that CASA Regional Manager, Mr Mc Heyzer chose to completely bypass CASA stipulated procedures in that determination, should not mean that the decision no longer becomes an accountable decision. I should still be entitled to procedural fairness, as though correct procedures had been followed.

I have attached the link to the “Jason McHeyzer” file for your reference. The entire document makes an interesting read. It is in chronological order, and emails regarding my employment can be found in the latter part of the document: https://www.dropbox.com/s/qkzhwgp5esojnbz/JASON%20MC%20HEYZER%20%20%20%20%20%20%2010%20of%2018.pdf?dl=0

I also raised my strong desire for CASA to identify the comments that I was making publicly. I believe that if CASA send a direction to my employer that my continuing employment is no longer tenable based on comments that I am making publicly,
then it is fair and reasonable that CASA identify to me those comments that their determination was based on.

I point out that the Employer interpreted it the same way that I did as I was terminated on the spot. I advised you that in my opinion the subsequent communications after I was terminated were “back pedalling”

I did clarify the situation with regard to the Employer offering me alternative employment. I have clarified the nature of that “employment”. I was required to set up my own business with an ABN. The Employer offered me approximately 10 hours per week teaching theory classes on a casual contracting basis. Due to the low volume of students that employment continued for approximately 6 weeks, at which stage I left the industry.

Having had CASA remove me from the role of HOO, my options were non-existent.
 
On Topic Two

I explained to you the inexplicable nature of CASAs determination that my business MFT was now operating unlawfully. I refer you to the initial notification from CASA that can be accessed here: https://www.dropbox.com/s/k3qn3qdgoa2uavx/App%20A%20initial%20notification.pdf?dl=0

I believe that I made it very clear that there were absolutely no changes to the way that MFT operated. The only change was a change of name of the parent company from MFT to APTA. The trading name MFT remain unchanged.

It is unlikely that anyone within my Organisation would have been aware of any change at all. I had no reason to discuss a name change only, of the parent company, with the pilots. It is likely that the office/admin staff would have been aware.

If CASA have closed my flying school of more than a decade down because there was some change, then it is fair and reasonable that CASA clearly identify exactly what changes there were, that made my school of more than a decade suddenly become an unauthorised operation.

I was suddenly in contravention of s29 of the Civil Aviation Act. Absurdly the correspondence states that the situation does not alter even if

1. I am the Owner and director
   
2. Using my own procedures.
   
3. I am paying myself a fee and
   
4. Using my own personnel.
   

Truly, this is absurd, and must be unlawful. Whilst I disagree with CASA on the wider issue of the “sister schools”, I absolutely have no understanding at all as to how my school of more than a decade suddenly became unlawful, and I think it is incumbent on CASA to provide me with an explanation.

This matter  has resulted in a number of significant consequences. I currently have issues with the tax department, an upcoming case in the Supreme Court as a Defendant, and staff and suppliers rightfully chasing me for entitlements.
In order to explain my position to the Tax Office, Judges etc, I must have a clear explanation from CASA. In a recent appearance before VCAT, my inability to explain the rationale behind the CASA decision making was interpreted as deceit.

That was a very sad moment for me personally and had quite an impact. I cannot put myself in that situation again. 
An explanation from CASA is essential.

Thank you for your time on the phone, and I hope you don’t mind the follow up correspondence. I appreciate that you are dealing with a number of matters in addition to mine. I hope this correspondence and the links can assist you.

I look forward to the opportunity to discuss the third topic when we next chat.

Thankyou sincerely for your time and your ear.

Cheers. Glen.

Plus (via the UP) Lead Balloon's response:

Lead Balloon

As a matter of interest, why was your employer at the time of the McHeyzer correspondence so spineless? If I’d received the email as your employer, I would have - in slightly more diplomatic language - told McHeyzer to go and get f*cked.


On the section 29 issue, I’ll preface what I’m about to say with a statement I’ve made many times over decades of unravelling corporate pea and thimble tricks: Those who wish to enjoy the benefits of the corporate veil have to cop the pitfalls.

In relation to MFT, you keep saying “my” flying school. Given your reference to a ‘parent company’, I assume the AOC under which the MFT flying school was operating was issued to a corporate entity and not you personally. Is that assumption correct? If yes, the MFT flying school was, under the aviation law (at least) the corporate entity’s, not yours personally.

Let’s call that corporate entity ‘Person A’.

You then refer to a ‘change of name of the parent company’ of Person A. If it was in fact the parent company of Person A, the parent was a different entity to Person A.

Let’s call the parent corporate entity ‘Person B’. (I assume that’s APTA?)

We’ll call you ‘Person C’.

Note that there are 3 separate legal persons here, notwithstanding that they are ‘related’. Only one of them has been issued an AOC for the MFT flying school: Person A.

To put this another way, despite Person B and Person C having some control over Person A as a consequence of shareholding and officership, respectively, neither Person B nor Person C holds the MFT flying training AOC. And Person A cannot transfer its AOC to Person B or Person C. That would be like me saying I’ve ‘transferred’ my driver’s licence to my Mum or Dad.

Mere changes of trading names have no effect on any of this. It doesn’t matter whether ‘Person A’ or ‘Person B’ have the trading name Arthur, Martha or McGuirkinsquirter (just as it doesn’t matter whether you change your name to Arthur, Martha or McGuirkinsquirter). The legal person remains the same and has all of the same legal obligations and rights, despite what its name might be from time to time. Despite any and all mere changes of name by any of them, only Person A has authority under the aviation law for MFT flying training.

So here’s the fundamental problem as I see it, based on my understanding of the facts (which I may have wrong - please correct me).

You (Person C) made arrangements such that the business previously being done by the MFT entity (Person A) started being done by APTA (Person B). Fundamental problem: APTA didn’t have an AOC authorising MFT flying training.

I know that, as a matter of practicality, it was all the same humans doing the same things under the same procedures. But they were doing it for the APTA entity, not the MFT entity.

This all may seem extraordinarily silly and artificial but, them’s the pitfalls of the corporate entity benefits.

It’s like an individual who incorporates and is the sole director and shareholder of a company which buys an aircraft and hires it back to the individual at an ‘arm’s length’ rate. Great for limiting the liability of the individual and there may be tax benefits. But…

The company is the legal owner of the aircraft, not the individual. If it’s insured by the company (tax deductible premium), the insurance responds to the liability of the company, not the individual, and the proceeds of insurance are the company’s, not the individual’s (unless the individual is named as an insured along with the company). And there may be implications under the aviation law. For example, under proposed Part 43 as drafted, the aircraft is used ‘for hire’ and, therefore, 100 hourly inspections (along with annuals) would be required. The individual might claim that the aircraft is ‘really’ the individual’s and there’s no hire ‘really’ going on because the individual is in control of everything but - alas - that ain’t how the law sees it.

I hope that makes some sense and, for your sake, that my reading of the facts between the lines is mistaken.

MTF...P2