Federal Court of Australia

Crossing v Anglicare NSW South, NSW West & ACT [2021] FCA 1112

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    Mr Crossing (the applicant) was employed by Anglicare (the first respondent) as a Financial Counsellor from 7 January 2013 until 15 May 2013. At that time his employment was terminated on the basis of his “unsuitability for continuing employment” as he did not hold the qualifications necessary to be a Financial Counsellor with Anglicare.

2    The applicant’s claim is that Anglicare and Mr Brad Addison (the second respondent), then a General Manager at Anglicare, contravened Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act), in that they took adverse action against him in breach of his workplace rights. The applicant does not contend or make any allegation that his termination was a form of adverse action taken in breach of the FW Act. Rather, in summary, the allegation is first, that the respondents took adverse action against the applicant in breach of s 340 of the FW Act for having or exercising workplace rights (including the right not to take up membership with the Financial Counselling Association of New South Wales (FCAN) and the right to make a complaint or enquiry about his employment); second, the respondents took adverse action against the applicant due to his mental disability in breach of s 351 of the FW Act and the Disability Discrimination Act 1992 (Cth) (DD Act); and third, the respondents’ actions breached cl 37 and 39 of the Community Sector Multiple Enterprise Agreement 2009 (Australian Capital Territory) (Enterprise Agreement) and contravened s 50 of the FW Act.

3    The applicant was unrepresented in these proceedings.

4    In summary, Mr Crossing’s case is premised on the proposition that the job advertisement for his position as a Financial Counsellor for which he was employed stated that the person could be working towards accreditation with FCAN, that he was employed as a student member of FCAN and was working towards accreditation, and therefore, provided he had his student membership with FCAN, he was qualified for the position. The base premise of Mr Crossing’s assertions is that he was obviously qualified for the position, and therefore the adverse actions (including in particular, raising the qualifications necessary for the position) must have been done by Anglicare for one of the unlawful reasons he alleges. Mr Crossing’s case included that Mr Addison raised the qualifications necessary for the position of Financial Counsellor as a ruse to have the applicant terminated from his position, because of his mental health issues, exercise of workplace rights and/or one of the other bases alleged by him.

5    The evidence establishes that when the applicant applied for the Financial Counsellor position, he held himself out as being due to complete his financial counselling course with FCAN in November 2012. Unbeknown to Anglicare until after he commenced employment, the applicant had failed a required assessment, had not completed the FCAN course (as he said he would), and as a result, did not hold the qualifications necessary for the Financial Counsellor position with Anglicare. The evidence establishes that the respondents acted on that basis. In that context, the applicant has not established any of the alleged adverse actions. Even if I had been satisfied that any of the adverse actions alleged occurred, the respondents have established that it was not for any of the alleged unlawful reasons. The evidence establishes that the matters now relied on by the applicant were not motives for the events that occurred during his employment or had any part to play (noting that it is not alleged that his termination was an adverse action). Moreover, on becoming aware of the fact that the applicant was not qualified, the respondents acted in a bona fide manner in approaching the dilemma with which they were faced.

6    For the reasons given below, the application is dismissed.

Relevant legal principles

7    Chapter 3 of the FW Act sets out rights and responsibilities of national system employers and employees. Part 3-1 of Chapter 3, in which ss 334 to 378 fall, provides general workplace protections of workplace rights, freedom of association and involvement in lawful industrial activities and other protections: FW Act s 6(2).

8    It is not in dispute that Mr Crossing, as an employee of Anglicare, was covered by an applicable workplace instrument, namely, the Enterprise Agreement: FW Act s 12. Therefore, the protections in Pt 3-1 of the FW Act apply to him.

9    Section 340(1) of the FW Act relevantly provides:

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

Note:    This subsection is a civil remedy provision (see Part 4-1).

10    Relevantly, that involves: first, the applicant exercised, proposed to exercise, or was prevented from exercising a “workplace right” within the scope of s 341 of the FW Act (except for the alleged discrimination in breach of s 351 of the FW Act); second, the conduct the applicant alleges was taken (or not taken) by the respondents in fact occurred and constitutes “adverse action” within the definition in s 342 of the FW Act; and third, the adverse action is taken “because” the other person has a workplace right, or has or has not exercised a workplace right, or proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right, that is, the alleged proscribed reason for the respondents’ conduct falls within the categories of prohibited reasons in s 340 or s 351 of the FW Act.

11    For the purposes of s 340, “workplace right” is defined in s 341(1):

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

  (c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

12    Section 342(1) sets out in tabular form circumstances where a person is taken to have engaged in adverse action against another. Item 1 includes within the definition of adverse action the circumstance where an employer dismisses the employee or injures the employee in his or her employment, alters the position of the employee to their prejudice or discriminates between employees. It also includes, by operation of s 342(2), threatening to do one of those things. The reference to “injuring” means causing an injury of a compensable kind, and the reference to altering the position of the employee to their prejudice includes any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 at [4].

13    Section 346 of the FW Act provides:

A person must not take adverse action against another person because the other person:

(a)    is or is not, or was or was not, an officer or member of an industrial association; or

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c)    does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

Note:    This section is a civil remedy provision (see Part 4-1).

14    For the purposes of s 346, s 347(a) relevantly defines the circumstances in which a person “engages in industrial activity”:

A person engages in industrial activity if the person:

(a)    becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or…

15    Section 361(1) reverses the normal onus in civil proceedings, and is as follows:

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

16    Determining whether adverse action has been taken “because” a person, relevantly, has or has not exercised a workplace right, or was an officer or member of an industrial association, is a question of fact as to the reason(s) the adverse action was taken. Section 360 provides that “a person takes action for a particular reason if the reasons for the action include that reason”. Therefore, if the Court is satisfied that the adverse action was taken for a prohibited reason, or reasons that included a prohibited reason, this will be sufficient to establish a breach.

17    In Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046, Wigney J summarised the principles at [297]-[303] as follows:

[297]    First, the question is one of fact: Barclay at [41], [45], [101]; BHP at [7].

[298]     Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a “substantial and operative” reason for taking the adverse action: Barclay at [56]-[59], [104], [127]; or an operative or immediate reason: Barclay at [140].

[299]    Third, the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker: Barclay at [121]; BHP Coal at [9].

[300]    Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]-[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22].

[301]    Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7].

[302]    Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127].

[303]    Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62].

18    As is apparent, the enquiry is one directed towards the reasons of the decision-maker for the adverse action, rather than the question of whether those reasons can be objectively justified: see for example Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (No 2) [2015] FCA 265 where the employee’s belief was genuine, although objectively wrong (upheld on appeal): see Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273 at [37] per Jessup J and [133]–[135] per Rangiah J.

19    It is necessary to consider the pleaded workplace rights at the outset of the enquiry. By operation of s 361, it is those rights which are presumed to be the reason, or a reason, for the adverse action, unless the respondent employer proves otherwise.

Claims

20    The applicant in his amended statement of claim (ASOC) alleges the following adverse actions: first, that to adversely affect his employment, he was required to hold qualifications he was not employed with: ASOC at [76]-[90]; second, that the second respondent misled others in connection with the applicant’s qualifications and employment at Anglicare: ASOC at [91]-[125]; third, that the second respondent did not abide by the applicant’s safety concerns, particularly in relation to his mental disability: ASOC at [126]-[135]; fourth, that the second respondent, to reduce the security of the applicant’s employment, gave him a “show cause” letter insisting he demonstrate that he held qualifications he was not employed to hold, under threat: ASOC at [136]-[155]; fifth, that a formal meeting was held, to reduce the security of the applicant’s employment, where he was required to show that he was fully accredited for a position, and that if he did not, his employment was under threat: ASOC at [156]-[169]; and sixth, that he was harassed by the second respondent in the course of his employment with Anglicare: ASOC at [170]-[176]. In respect to two of the identified adverse actions, being the “show cause” letter and the formal meeting, the ASOC includes allegations covering broader assertions. There is also some disconnect between the ASOC and the closing submissions, regarding the topics identified and addressed under the heading adverse actions, being, raising the requirements of his position, harassment, the “show cause” letter, and the meeting of 18 April 2013 (which is referred to under both the fifth and sixth allegations in the ASOC).

21    It is alleged those adverse actions were taken because Mr Crossing had exercised four workplace rights.

22    First, the applicant alleged that he had a workplace right that Anglicare was not to take adverse action against him because he had a mental disability, relying on s 351 of the FW Act: ASOC at [57]-[61]. He alleged that taking such adverse action was unlawful under the DD Act. He alleged that Mr Addison was aware of his past mental disability, and that due in part to his mental disability, Mr Addison took the adverse action identified above. He claimed that Mr Addison acted directly due to his mental disability, being a substantive and operative reason for the changes to his position and further adverse actions taken against him until 18 April 2013.

23    Second, the applicant alleged that he had a workplace right to take or not take up membership with FCAN, referring to ss 346-347 of the FW Act: ASOC at [62]. He alleged that Mr Addison made his decision that he “was unqualified for [the applicant’s] position stating [the applicant] holding accreditation was an issue because students were not accredited”. He alleged that Mr Addison saw FCAN membership as a part of the reason he was not accredited. He also alleged that Mr Luke Vardanega also stated consistently an issue was whether the applicant held membership with FCAN, having received this advice from Mr Addison. He alleges that the job advertisement required that the person either hold full accredited membership with FCAN or be currently working to gain this accreditation and that a real reason for starting and/or continuing adverse actions included his FCAN membership status.

24    Third, the applicant alleged he had a workplace right to participate in the consultation process under the applicable Enterprise Agreement: ASOC at [63]-[70]. He alleged that Anglicare had a duty and responsibility to hold discussions regarding situations of dispute (cl 34), performance and conduct (cl 35) and major change and redundancy (cl 37 and cl 39) in a manner agreed to under the Enterprise Agreement. He alleged that a real part of the reason Mr Addison took the action “to make all students unqualified immediately” was to avoid discussion, consultation or arbitration under the Enterprise Agreement. He alleged that Mr Addison was aware that his actions of implementing “the disagreed change, major change and redundancy situation immediately or following the Enterprise Agreement in relation to dealing with stated performance and conduct issues he had with the applicant made it impossible for the applicant to participate in a reasonable consultation/discussion process as contemplated under [the applicant’s] Enterprise Agreement”. If discussions were held in the manner agreed to under the Enterprise Agreement, Mr Addison's actions would come under scrutiny. The applicant alleges that he had clear views expressed prior to and after his decision that his actions were wrong.

25    Fourth, the applicant alleged that he had the right to make a complaint or inquiry in relation to employment under s 341(1)(c)(ii) of the FW Act: ASOC at [71]-[75]. He alleged that due to exercising a workplace right to make complaints and inquiries as an employee in his employment, Mr Addison took adverse action against him. He alleged that the fact of his complaints was a significant and real part of the motivation to take the adverse actions as described above at [20]. He identified five complaints. The complaints and inquiries alleged are:

(1)    within days prior to 22 March 2013, the applicant complained that Mr Addison’s position that he lacked accreditation was incorrect;

(2)    around and prior to 27 March 2013, the applicant made an email request to Mr Addison to seek information from FCAN where he noted and provided information that he met the requirements for membership at FCAN as a student in training member;

(3)    an email on 11 April 2013 in which the applicant formally responded to a written request that he provide confirmation of his accreditation;

(4)    in a meeting on 16 April 2013 with Mr Addison where “the issue” was once again stated and complained about; and

(5)    in a meeting with a support worker on 18 April 2013 where “the issue” was raised and complained about in a letter on 13 April 2013.

26    It is claimed that Mr Addison had taken no adverse action prior to 22 March 2013.

Factual background

27    Anglicare is a not for profit organisation that provides a range of services for individuals, families and communities across regional New South Wales and the Australian Capital Territory, including financial counselling for individuals who are in financial difficulty. Anglicare employs a number of financial counsellors for its financial counselling services.

28    Although a person who carries on a financial services business must hold an Australian financial services licence covering the provision of the financial services: s 911A(1) of the Corporations Act 2001 (Cth), Anglicare is presently exempt from that requirement: s 5(2) of the ASIC Corporations (Financial Counselling Agencies) Instrument 2017/792 (ASIC Instrument). At the time of Mr Crossing’s employment with Anglicare, Anglicare was exempt from the requirement to hold an Australian financial services license by virtue of the “Australian Securities and Investment Commission Corporations Act 2001 – Paragraph 991A(2)(l) – Exemption” (ASIC Class Order [03/1063]). Relevantly, paragraph (f) of the ASIC Class Order [03/1063] requires, inter alia, that the financial counselling agency takes all reasonable steps to ensure each person who provides the financial services on its behalf:

(i)    is a member of, or is eligible to be a member of, a financial counselling association; and

(ii)    has undertaken appropriate training to ensure that they have adequate skills and knowledge to satisfactorily provide the financial services…

29    Anglicare's financial counselling services are funded by NSW Fair Trading through the Financial Counselling Services Program (FCSP). This program is administered by NSW Fair Trading operating within the Department of Finance and Services. At the relevant time, Anglicare's financial counselling services were funded under an agreement between the Commissioner for Fair Trading and Anglicare Regional Alliance for the period from 1 December 2012 to 30 June 2015 (Funding Agreement). Clause 5.2 of the Funding Agreement sets out certain matters that Anglicare must ensure which includes, inter alia, that financial counsellors are sufficiently competent and appropriately trained. Appropriately trained in that clause means “that the financial counsellor has successfully completed training in financial counselling provided by a person recognised by: Financial Counsellors’ Association of NSW Inc; or such other person approved by the Office”.

30    FCAN is the peak membership body that represents and supports financial counsellors in New South Wales.

31    The Fair Trading Financial Counselling Services Program Guidelines 2012 (FCSP Guidelines) describes the role of FCAN, noting that “its key role is training of financial counsellors. FCAN trains and accredits all financial counsellors who wish to work as a financial counsellor in New South Wales. All financial counsellors, including volunteers, providing financial counselling must be trained and eligible for accreditation by the Financial Counsellors Association of NSW”.

Evidence relied on

32    The applicant relied on a number of affidavits sworn by him, each of which exhibited a significant number of documents: the affidavits of Richard Crossing sworn 13 September 2019, 25 October 2019 and 24 June 2020.

33    Those affidavits were read and the exhibits admitted subject to my rulings on objections. In particular, aspects of those affidavits, and corresponding exhibits (for example, in relation to Ms Carol Stackpoole) were objected to, inter alia, on the basis that they contained hearsay. That material was plainly hearsay and not admitted to prove the truth of its contents. In so far as the affidavits contain arguments or submissions (including as to what the evidence establishes) they were treated as such.

34    Mr Crossing gave evidence and was cross-examined.

35    The respondents relied on the affidavits of Brad Simon Addison sworn 11 October 2019 and Luke Vardanega sworn 11 October 2019, and the documents exhibited to those affidavits. Each gave evidence and were cross-examined by the applicant.

36    In addition, each party filed written opening submissions, supplemented by detailed written closing submissions. By agreement between the parties the closing submissions were to only be in writing. I note that Mr Crossing’s written submissions were extensive, the closing submissions in chief and reply covering some 159 pages. This was in addition to his lengthy opening submissions.

The witnesses

37    Before discussing the evidence of events it is appropriate to record my findings in relation to each of the three witnesses who gave evidence.

38    In light of the applicant’s submission, I note also as a general proposition, that not every inconsistency in a witness’ evidence, even if established, affects the witness’ credibility or reliability. Whether an inconsistency is established, and if so, what effect it might have on the witness’ evidence, involves an assessment of the evidence, considered as a whole. I am mindful that these events occurred many years ago, approximately seven years before the hearing of this matter. This is also in a context where Mr Addison and Mr Vardanega no longer work for Anglicare.

39    For the reasons described below, I find that where there is a conflict in the evidence between the applicant and Mr Addison or Mr Vardanega, it is the evidence of Mr Addison and Mr Vardanega which is to be preferred. Their evidence is also supported by contemporaneous documents (including emails which, inter alia, record communications between relevant persons during the course of these events, and reflect on the basis of the actions undertaken). Those documents do not support the applicant’s version of the events.

Mr Crossing

40    I find that the applicant is a very poor historian of events.

41    During the hearing, the applicant repeatedly mischaracterised both oral evidence (including that which had just been given) and the contents of documentary evidence. In respect to the latter, the applicant repeatedly mischaracterised the content of documents or parts thereof, despite the fact that the document was before him (or had been provided to him shortly before) and in a context where he had had the documents for many months. His conduct of the proceedings reflected that he was intimately familiar with them. He continued to mischaracterise some evidence even after he had been corrected as to his description of the content of a document. He repeatedly misinterpreted documents, contending they supported a proposition inconsistent with their plain reading. During his cross-examination of Mr Addison and Mr Vardanega, when he put their answers to previous questions to them, he frequently incorrectly summarised the import of their evidence.

42    The mischaracterisations always favoured his case. The frequency of these instances reflect, at the very least, that the applicant was hearing what he wanted to hear and reading what he wanted to into the documents, regardless of the answers given or the content of the document.

43    I do not accept the applicant’s submission in this respect, that his evidence is “consistent with a person who has trouble with short term memory, but consistent with a person who has suffered trauma and [has a] good memory of events around the time of the trauma and has been under medication at the time of the hearings”. Leaving aside there was no evidence in support of this, what is described above, and what occurred during the hearing, is not consistent with that submission.

44    The repeated mischaracterisation of the contents of documents with which he was familiar is not explained by that submission. The applicant’s written submission also contains a number of examples where a document or evidence are plainly mischaracterised, in support of his case: see for example [174] below. On occasions, Mr Crossing refers to transcript to support a proposition which it does not. Some of the references are selective: see for example [156]-[163].

45    When giving evidence Mr Crossing often did not answer the question asked, but rather gave an answer containing information which it appeared he considered assisted him: see for example [193]-[198]. Some of his evidence was, at times, evasive. He failed to make obvious concessions, where he perceived to do so would reflect adversely on his case: see for example [150]-[152]. He appeared to be assessing where the questions were headed so as to provide an answer that would assist him: see for example [193]-[198].This includes answers which were not responsive to the questions.

46    In my view, the applicant’s evidence is at the least unreliable. This includes as to the events in question. Whether that is because he takes what he wants to from conversations, simply gives answers which he considers would assist his narrative or for some other reason, is not really to the point. That said, his version of events is not supported by the contemporaneous documents created during the course of these events.

47    I note that the applicant in his written submissions relies on previous statements he had made for the purpose of his workers compensation claim to support his evidence as a prior consistent statement to support his credibility. Those statements were made by him for the purpose of court proceedings in support of a claim he had bought, and were made sometime after the events in question. Such statements in the circumstances, are of little, if any, assistance. If the applicant has an account of the events which is not accurate, that account does not gain strength because he recited it, or has held the belief in it for some time. To take as an example, the applicant in his closing submission repeatedly recites a paragraph of his written statement which was before the Workers Compensation Commission (the Commission) which relates to a meeting he had with Mr Addison on 16 April 2013, in which the following passage appeared, “Again I explained to Brad Addison that I was appropriately qualified and accredited for my position”. As explained below, although he might have said that to Mr Addison, on the material before Anglicare, he was not appropriately qualified. Prior consistent statements also do not overcome the deficiencies in his evidence, including, the contents of the contemporaneous documents. The applicant also made a submission that he would not have asked the respondents to make enquires as to his qualifications (for example, in relation to his time at the Wesley Mission) unless he had held those qualifications. That is a bootstrap argument.

48    It is plain that the applicant has sought to interpret any evidence so as to accord with his narrative of events, irrespective of its obvious content. For example, as explained below, Mr Crossing’s approach reflects that he has erroneously approached the issue of qualification as a simplistic one of membership, when on the evidence it was not. The whole premise of his case then, and now, is based on that erroneous proposition. By doing so he frames the issues so as to ignore issues and evidence which do not assist: see for example [174]. His evidence is given accordingly.

Mr Addison

49    The second respondent, Mr Addison, was General Manager for Anglicare from March 2004 to October 2018 and was responsible for program management, financial oversight of the programs in the area, support and supervision of staff and general liaison with members of the community.

50    The respondents submitted that Mr Addison presented as credible, honest and reliable. I accept that is an accurate description of his evidence. Mr Addison was cross-examined at length over three days and, in my view, he attempted to assist the Court throughout. His evidence is supported by the contemporaneous emails. Indeed, the applicant accepted that Mr Addison did present in that way, but submitted that I “should not be swayed by the mere fact that he presented as credible, honest and reliable”.

51    Mr Crossing made submissions as to what he contended are a number of inconsistencies in the evidence of Mr Addison. He claimed he was not a witness of truth. Indeed, he accused him of committing perjury. I do not accept that submission.

52    Many of the matters said by the applicant to be purported inconsistencies, are not established by the references relied on: see for example [67] and [156]-[162] below. Some of the matters relate to topics which are of no significance to the issues properly before this Court. Mr Crossing’s submissions on these topics often ignore the factual context in which the events occurred, including the contemporaneous emails recording the events.

53    As previously noted, the context in which the witnesses gave evidence is that these events occurred many years ago and Mr Addison and Mr Vardanega no longer work for Anglicare. There are contemporaneous documents in relation to the series of events. Contrary to the applicant’s contention, a proper reading of the evidence does not reflect any relevant inconsistency, such as to render his evidence generally unreliable, that he was untruthful or committed perjury.

54    It is neither necessary nor appropriate to refer to all the matters which Mr Crossing alleges to be inconsistencies. The applicant’s submissions focused primarily on two aspects; first, purported inconsistencies between Mr Addison’s statement before the Commission and his evidence in this Court, which is addressed below at [61]-[70]; and second, purported inconsistencies in Mr Addison’s evidence as to his knowledge of the applicant’s mental health issues, which is addressed below at [232]-[244]. Suffice to say at this stage, I do not accept the import of the applicant’s submission on either topic. That is, considering the evidence as a whole, the matters relied on by the applicant do not affect the reliability of Mr Addison’s evidence on the relevant topics.

55    Other examples of the applicant’s submissions are addressed below.

Mr Vardanega

56    I accept Mr Vardanega as a witness of credit. He presented as honest and reliable. His evidence was also supported by relevant documentation, and the legislation which addresses the requirements for the position of Financial Counsellor with Anglicare.

57    I do not accept Mr Crossing’s submission to the contrary.

58    Mr Crossing’s purported examples of inconsistencies tend to mischaracterise the issues.

59    The only example amongst those relied on by the applicant where there is an inconsistency with the other evidence relates to whether Mr Crossing had enrolled in the Queensland course. Although in the email from Mr Vardanega to Ms Mason-Waugh dated 19 May 2014, Mr Vardanega states Mr Crossing said he could enrol in a course in Queensland, there was evidence that he had enrolled, but no more than that. Mr Vardanega gave evidence he thought Mr Crossing had not yet enrolled, but that he knew about the course. This is no more than a misunderstanding by Mr Vardanega, which in my view does not reflect on his credibility. This email relied on by the applicant was written a year after Mr Crossing’s employment was terminated and these events occurred. It was not a document created contemporaneously with these events. All the more so given, on Mr Vardanega’s evidence, enrolment and regaining student membership did not have the significance that Mr Crossing contends. It did not solve the issue of his lack of qualifications. None of the other purported examples provide any proper basis to reject Mr Vardanega’s evidence. Mr Crossing’s purported examples of inconsistencies tend to take evidence out of context, and elevate and mischaracterise the significance of evidence. Moreover, I do not accept the applicant’s submission made in reply that Mr Vardanega’s email to Ms Mason-Waugh shows a different version of the reasons for his termination. Contrary to the applicant’s submission, this email, properly read, is consistent with the contemporaneous evidence which reflects that he was terminated on the grounds he was not qualified to practice as a Financial Counsellor.

60    Rather, as noted above, Mr Crossing’s approach in this Court reflects that he has erroneously approached the issue as a simplistic one of membership, when on the evidence it is not.

Workers compensation proceedings

61    It is appropriate at this stage to refer to the workers compensation proceedings. Mr Crossing brought proceedings in the Commission against Anglicare alleging he had suffered injury as a result of its conduct, basing his claim on the assertion his job position had changed.

62    As noted above, a focus of the purported inconsistencies relied on by Mr Crossing in relation to Mr Addison were said to be with his statement and some work notes which were before the Commission and his evidence in this Court. Similar submissions were also made in relation to Mr Vardanega.

63    Leaving aside the issue of what is said to be inconsistencies, whether they exist, and if so, the effect thereof, a number of general observations can be made about the workers compensation proceedings. The witnesses’ statements, which appear to have been prepared some time ago, and at least two years after the events, were very brief. There is no evidence of how the statements were taken. However, the statements had a start and finish time as if the witness sat down with a transcriber. They do not address the events in the detail they did in this proceeding. The statements do not make any reference to the relevant documentation, and appear to be taken from the witness without the witness having reference or access to the relevant documentation.

64    The witnesses did not give oral evidence. The transcript of the proceeding is some 50 pages, whereas these proceedings heard evidence over eight days. It is apparent from the transcript of the hearing and the reasons of the Commission that the issues were different to those before this Court. The evidence before the Commission was also different from that before this Court. The extent of the emails between the parties that were put before the Commission is unclear on the evidence before me. It appears on the material provided that the Commission did not have all contemporaneous emails of the events. The respondents submitted that the Commission did not have Mr Crossing’s job application nor his resume. Certainly they are not referred to in the Commission’s decision, when it would have been expected to have been. Although Mr Crossing’s affidavit exhibits some items which he says were some of the material before the Commission, in his written reply he said there is no clear list of the material. It appears from the Commission’s decision that there was no focus on what was said in the interview, or the fact that the applicant held himself out to be completing the FCAN course in November 2012 (neither are referred to in the Commission’s decision).

65    Moreover, the Commission’s decision does not address the relevant legal requirements for qualification as a Financial Counsellor with Anglicare. I note for example, that although the Commission in its reasons does refer to a position description document, with respect, the Commission does not accurately summarise that document. The Commission only refers to participation in ongoing developments and eligibility for full accreditation with FCAN, and fails to refer to the fact that the person must have relevant tertiary or equivalent financial counselling qualifications. The issue, which is plainly relevant, does not appear to be addressed in any of the material before the Commission.

66    The material which was said to be before the Commission, apart from the statements and notes said to be inconsistent with the evidence of Mr Addison and Mr Vardanega, is irrelevant to these proceedings. No basis of relevance has been established. Mr Crossing’s general reliance on the outcome of the Commission proceedings is misplaced. Mr Crossing is elevating the significance of the Commission hearing and those statements to a position they do not have in these proceedings.

67    That said, the applicant’s submissions that there are inconsistencies between Mr Addison’s notes and his statement before the Commission (and the effect thereof) is not borne out by a proper reading of those documents. I note that the work notes are brief and are notes only. They do not purport to be a complete record. The same applies to the submission the applicant makes in respect to Mr Vardanega. The witnesses did not accept the proposition that there were inconsistencies. It was apparent during their cross-examination that matters were put to the witnesses by Mr Crossing which were said to be based on the material before the Commission, but which were not supported by a proper reading of that material. Certainly, there is more information in the affidavits of Mr Addison and Mr Vardanega read in this Court than in the brief statements before the Commission, but that of itself does not render there to be any relevant inconsistency.

68    As with other documents, Mr Crossing misinterprets aspects of them. He erroneously treats the notes as if they are a complete description of what happened on a particular occasion, which a reading of them plainly reflects they are not. I note also that this approach was not suggested to be the case in the Commission, despite the applicant being represented by counsel in those proceedings. The significance of both documents, given their limited content by reference to the issues before this Court, is overstated. Mr Crossing focusses on these documents, and not those which contemporaneously record the events which were occurring. As will also be apparent from the discussion below, Mr Crossing focusses on matters which do not have the significance contended for.

69    The issues in this Court are different to those in the Commission. Some of the underlying factual findings do not accord with the evidence in this Court. Its conclusions are of no assistance to the resolution of the issues before me. In any event, the inadequacy of the material, and the difference between the evidence and issues in this Court, make any conclusions, with respect, irrelevant. Contrary to the applicant’s submission, the findings of the Commission do not affect my consideration of the evidence before this Court.

70    The respondents in this Court responded to the assertions alleged in the applicant’s pleading and evidence. Their evidence is supported by the contemporaneous documentary evidence.

Chronology of events

71    Turning to the chronology of events.

72    On 11 November 2012, Anglicare advertised a Financial Counsellor position. The advertisement stated:

Financial Counsellor

Full-time

Wagga NSW

We are seeking to employ a Financial Counsellor to assist the people of the Lower South Western Region to better manage their debt by providing confidential counselling, proactive education and mentoring. Successful applicants will be suitably qualified with financial counselling or other relevant tertiary qualifications.

In addition they will have full accreditation membership with FCAN, or have commenced training with intent to seek accreditation along with the knowledge of the relevant Acts, legislation, code and standards governing charity organisations and financial services.

73    The advertisement made clear that accreditation with FCAN was not the only criteria, but rather that was in addition to “be[ing] suitably qualified with financial counselling or other relevant tertiary qualifications” and that an applicant must have “knowledge of the relevant Acts, legislation, code and standards governing charity organisations and financial services”.

74    On 20 November 2012, Mr Crossing applied for the position. Mr Crossing's application included a cover letter, resume, application form, and statutory declaration.

75    Relevantly for present purposes, the cover letter contained the following:

I am currently completing the FCAN Financial Counselling Course which is due for completion at the end of November, 2012. In addition to this I worked as a financial counsellor at Wesley Central Mission for approximately two years, in both a voluntary and paid work capacity. This role has given me strong insight and practical experience into what a Financial Counsellor does.

76    In the resume, relevantly was the following:

FURTHER EDUCATION

2012 -         FCAN Financial Counselling Course – Due for completion     November 2012

2011-12     TAFE Certificate Level IV in Mental Health Current

2002-03    TAFE Certificate Level II & Level III Information Technology

1998-1993     Bachelor of Information Technology (Information Systems)     Charles Sturt University – Riverina, Wagga Wagga NSW

77    As will become apparent in these reasons, during the events of his employment in 2013, Mr Crossing sought to rely on his involvement with Wesley Mission as qualifying him for the Financial Counsellor position at Anglicare. The information on that topic in his application and resume was this:

Ability and experience working with clients to assist them achieve financial independence.

As previously mentioned, I have worked voluntarily as a Financial Counsellor at Wesley Central Mission where I assisted clients of various backgrounds in restructuring their finances. This involved encouraging open communication and relationships with clients and determining what their financial needs and goals were, as well as finding the best way to achieve them. I was regularly involved in negotiating with external organisations, sourcing financial information and researching available services. It also involved offering a support base to clients and encourages them to work towards financial security. The focus was always on the client and gaining their trust through my professional attitude, genuine interest and maintaining their privacy.

78    And in his resume:

VOLUNTARY WORK

1982 1984     Financial Counselling Wesley Central Mission, Sydney

Financial counselling on a voluntary and paid basis, Involved in training courses, case work, writing reports, negotiating with creditors and follow up work with clients

79    In the applicant’s application form, he answered “no” to the question “[d]o you have any physical and/or mental condition(s) that may inhibit performance of your duties or affect your ability to work safely?” In his statutory declaration which accompanied his job application, he also answered “no” to the question “[d]o you suffer from any physical or mental conditions that may affect your ability to perform the normal duties of your position?”

80    Pausing there, the applicant accepted in his written submission that his evidence was that he held no official qualifications in financial counselling.

81    Mr Crossing was interviewed for the position in November 2012. Although it is unclear as to the date of that interview, it must have been sometime after 20 November 2012. Again, although the exact date is unclear, in November 2012 Mr Crossing became aware that he had failed an assessment for his FCAN course. Successfully completing this assessment was necessary to pass the course. Leaving aside for the moment the applicant’s explanation that he had three attempts to do the assessment, to which I will return to later, I am satisfied on the evidence that in November 2012 the applicant was in a dispute with FCAN about the course. He was in that dispute as a result of the failure of the assessment. Attached to an email of 13 February 2013 which Mr Crossing wrote to Mr Addison, is a document in which he states his complaint with FCAN started in November 2012. This included, inter alia, that he claimed his assignment had been incorrectly marked.

82    The applicant’s issues with FCAN and his failure of the assessment were unknown by Anglicare at this time in 2012.

83    Mr Crossing was offered the position in 2012, although there is no evidence as to the date when this occurred.

84    The applicant signed his contract of employment with Anglicare on 18 December 2012, to start employment on 7 January 2013. Mr Crossing ultimately accepted that he knew by the time he signed the contract that, contrary to what he had said in his application for the position, he had not completed the FCAN course in November 2012. The applicant also accepted that he did not inform Anglicare before or at the time he signed his employment contract that he had failed an assessment and had not completed the course. He provided reasons why he said he did not need to inform Anglicare, which are addressed below at [184]. Nonetheless, Anglicare were not informed of the position at that stage. Suffice to say at this stage, I find that the applicant did not inform Anglicare because he did not want to jeopardise his offer of employment.

85    Mr Crossing was also provided with a position description document, which relevantly states as an essential criteria, inter alia, that the applicant is “[e]ligible for full accreditation membership with FCAN”. As explained below at [140], although Mr Crossing gave evidence he was not provided with such a document, I accept Mr Addison’s evidence on this topic. In any event, even if the position description document was not provided to Mr Crossing as he asserts, I take him to have been aware at the relevant time of the criteria for the Financial Counsellor role with Anglicare given that the criteria were clearly stated on the job advertisement recited above at [72].

86    Mr Crossing commenced employment with Anglicare on 7 January 2013.

87    In January 2013, Mr Crossing submitted a complaint to the Australian Skills Quality Authority (ASQA), the national regulator for Australia's vocational education and training sector, in relation to FCAN’s assessment of his performance during the course.

88    On 8 February 2013, Mr Crossing advised Mr Addison by email in the following terms:

Brad,

Possible issue has arisen that you need to be informed about. All will be revealed. If you can slot in 2 hours next week it would be appreciated.

Just email a time and I will work around you.

Richard Crossing

Financial Counsellor

89    On or about 11 February 2013, Mr Addison met with Mr Crossing, at which time the applicant informed him that he had not passed an assessment that was required for him to complete the FCAN Financial Counselling Course. This was the first time the applicant had notified Anglicare of this. Mr Crossing informed Mr Addison that he had not accepted FCAN's offer to remark the assessment task because FCAN had said that the remark would be final and he would not be allowed to complete the course if he did not pass that reassessment task. Mr Crossing said he had decided to appeal the result of his assessment to ASQA. Mr Crossing said he was confident the situation would be resolved and he would receive his accreditation as a financial counsellor. Mr Addison asked Mr Crossing to keep him updated.

90    On 11 February 2013, Ross Butler, Chief Executive Officer of FCAN, wrote to Mr Crossing advising that FCAN would not be issuing him a statement of attainment for the FCAN Financial Counselling Course and that his “Student in Training” membership of FCAN had been withdrawn:

Dear Mr Crossing,

RE: Student in Training Membership of FCAN

As part of FCAN’s Internal Processes, it is necessary to regularly review FCAN membership to confirm members continue to be eligible for their class of membership.

In the By-Laws of FCAN’s Constitution, one of the “Eligibility” criteria to be a Student in Training Member of FCAN is stated as follows:

“Students currently undertaking an approved and accredited Financial Counsellors’ Training Course and other compulsory components of the training requirements.”

In recent emails, it was indicated that FCAN would not be issuing you a Statement of Attainment for the FCAN Financial Counselling Courses which you attended from August to November, 2012. Therefore, in recognition with FCAN’s Constitution By-Laws, you are no longer eligible for Student in Training membership of FCAN. Accordingly, it has been decided to withdraw your Student in Training Membership of FCAN.

Should you re-commence your financial counselling studies with an accredited training organisation you will be eligible again to apply for membership.

Yours Sincerely

Ross Butler Chief Executive Officer Financial Counsellors’ Association of NSW

91    Pausing there, it is plain from that correspondence that there had been earlier email communication between Mr Crossing and FCAN in which he was notified that FCAN would not be issuing him a certificate in relation to the course. It can be inferred that Mr Crossing had been aware of the precarious nature of his position with FCAN for some time.

92    Following Mr Crossing’s meeting with Mr Addison, he sent Mr Addison an email in the following terms:

Brad,

…

I am happy to do what it takes to qualify. This is said without qualification.

I would like if possible details of how to do this from FCAN.

I just do not know how to do this with a trainer that appears biased although I am willing to eat humble pie.

Because of the issues before ASQA and the distance involved is an accommodation possible? We do have qualified people in the area that could assess the subjects that involve face to face contact and skilled and qualified financial and personal counsellors can be found.

Brad I trust you skills in this area and greatly appreciate your guidance and assistance and am happy for you to compose an email from the Anglicare perspective as this may greatly assist.

Richard Crossing Financial Counsellor

93    On 13 February 2013, Mr Addison received an email from Mr Crossing about his issues with FCAN, which attached a draft letter which the applicant proposed Mr Addison send to FCAN. The email is set out below:

Hi Brad,

I am torn between a desperate need to tell FCAN to take what they want and a self-preservation mode that has experienced an attack and is very cautious. If I was in your position my main concern would be how we arrived at this position and I have no answer other than I feel under attack and have no idea why?

I have no wish to involve you in this issue and am doing so for two reasons.

1)    To achieve the position and responsibility you have at your age you must have wisdom and I certainly can do with some and an objective view point.

2)    There is an Anglicare vested interest in this and in this area the buck stops with you.

3)    The third of the two reasons is I think you are a fair person, and

4)    The next of the two reasons is you could not do a worse job than me.

I am not asking you to take over the case or take sides just give me some of that wisdom.

God bless

Richard Crossing Financial Counsellor

94    The draft letter was as follows:

Hello Ross and Adrian,

I have received your last letter and feel that there is a misunderstanding. What l conveyed was that I had not asked for a remark by Betty Yule as you had indicated. As a student I was following the complaint path for lodging a complaint as indicated in the student handbook. While I did not object to you using whatever recourse to assess my work in the first instance the next clear step along the complaints procedure (according to the student handbook) was to have a committee look at the work. I had put the option to have a committee remark the work as the next step in the process and was intending to apply for this following a response from ASQA. From reading the FCAN guidelines it indicates I had two years to complete all elements of training. You indicated I had said I wished for a remark and you were complying with my request which I felt was incorrect. I do not know where I made any such request.

I also disagreed with another issue. Originally you asked to put forward all assessment items that were an issue to be remarked and when I agreed to this you changed that to -> we will only assess a few items. This is not what I had agreed to.

I would be happy for a person at either the Orange TAFE or the Lifeline Community Care in Queensland or Anglicare Tasmania doing an objective look at the assessments that you outlined. All these organisations offer qualified trainers and assessors in Financial Counselling. They would hopefully offer feedback and in the case of most assessment an opportunity to address the issues. I would be happy to contact one of these organisations and suggest a specific person if required.

Your letter indicated I had not agreed to the original idea. This was due to the fact when you changed the terms of the agreement substantially and stated I agreed to terms that I had not agreed to I became frustrated. The idea that I am not willingly and actively looking at how to progress to a completion of the training is false.

You indicated for the assessable items not remarked to be redone by me in Sydney as if I had failed these assessments. The trainer there is the same trainer I allege was unfairly marking me and is the subject of the complaint. For these items I am asking for an accommodation due to the circumstances. The circumstances being the harassment complaint and 1100klm's distance issues.

•    One assessment was a 30 minute practical session with a client.

•    One assessment I was told I needed a practical monitored session with a Creditor. The original assessment was with three creditors although I was informed one sit in was enough.

As these were both role-play scenarios I would be happy to do these and would commit to do these in front of an Anglicare qualified Financial Counsellor with 15 years experience to observe and report the outcome to FCAN.

While I believe I should not have failed these items I am willing to do the extra work to redo the assessments in order to hasten the process.

If what you are after is me agreeing to a remark as stated in your previous email I am happy as long as it is done independently to FCAN which would be appropriate. Betty Yule while a remarkable lady was a team member on the training course and has been a founding member of FCAN so would appear not to be the best choice.

We are still waiting to work on the recognition of Counselling skills and I believe you are looking at options.

While I agree that this is a step forward I still believe that the original complaint needs to be dealt with and ASQA should offer an independent view of the issues complained about. It would be good to progress while this is happening.

As already discussed this puts me in the position to have to redo work when I may be the victim and we may need to work through this area.

As you have indicated (through the advice you have given) the complaints procedure had and appears to be in a state of change. I really would appreciate an updated procedure to follow as far as FCAN is concerned which should make for a less confused exchange of information.

I have still not received the original path to complete the course or any items from FCAN since this complaint started in November and my last email reflected this frustration and the items of concern. It would be reasonable to request the documents I have asked for to achieve success in finishing the course. I believe regardless of circumstances I am entitled to all of the requested documents

I do not wish to create problems although I firmly believe receiving feedback that answers a complaint is important and feedback on errors made on assessed items essential to progress through the course.

Through my complaint process I have raised a number of specific requests that I believe are a student's normal right. I am not trying to assert special rights or ways of avoiding responsibility but a way to have a reasonable chance of assessment and progression established.

I would appreciate and welcome your response.

95    It is unclear on the evidence if this letter was sent.

96    On 15 February 2013, Mr Crossing sent an email to Mr Addison in which he stated that he “may have a way forward”, and there “may be a possible solution” and would like to meet.

97    On 7 March 2013, Mr Crossing enrolled in a Diploma of Community Services (Financial Counselling) with Uniting Care Queensland due for completion on 7 March 2015. Although the applicant repeatedly referred to this as a transfer, there was no evidence of that. As at the time that he left the employment of Anglicare, he had not made any inquiries as to whether he could obtain any credit for the course work undertaken with FCAN.

98    On or about 22 March 2013, Mr Crossing met with Mr Addison, at which time he asked, inter alia, if Mr Addison could seek clarification from FCAN in relation to the status of his membership. Mr Addison gave evidence that he reminded Mr Crossing that Anglicare is obliged to engage financial counsellors who are trained and eligible for accreditation with FCAN. This is the occasion on which the applicant alleges that Mr Addison got angry with him and was speaking in aggressive terms. The applicant refers at times to the conversation occurring on 18 March 2013. Regardless of the date the conversation occurred, it is apparent that Mr Addison and Mr Crossing are talking about the same occasion. The applicant states “on or about the 18th March 2013 [Mr Addison] and I had a further conversation regarding my mental health. He stated words to the effect he thought my mental health issues were behind me and he was angry that they appeared not. I stated that I had issues with FCAN, but they were dealt with by the transfer to study interstate and my mental health was OK. I observed he was angry at the time”. It is from this time that the applicant alleges that Mr Addison’s attitude towards him changed. This conversation and conduct is denied by Mr Addison. Suffice to say at this stage, I do not accept the applicant’s evidence as to what he says occurred during that conversation, or that Mr Addison’s behaviour towards him changed thereafter. Moreover, it is not supported by the evidence of the conduct of each after this occasion. It is inconsistent with the applicant’s conduct: see for example [107] (and explained in [109]). Moreover, the applicant continued to ask Mr Addison for his assistance, including after he had left Anglicare’s employ. This is also in a context where the evidence reflects that the applicant was prepared to take action in circumstances in which he felt aggrieved. I prefer the evidence of Mr Addison on this topic. It is consistent with his conduct of the matter generally, and is reflected in the contemporaneous documentation (which reflects that the issue was one of qualification). I note also that Mr Vardanega gave evidence, which I accept, that Mr Addison was “personally supportive” of the applicant, and that Mr Addison did not have a “fixed idea” as to what a remedy to the situation might look like which is why he had gone to Mr Vardanega for advice: see [103]-[106] below.

99    On 25 March 2013, Mr Addison sent an email to Mr Butler asking to have a discussion about Mr Crossing:

G’day Ross,

I was wondering if we could have a fairly frank discussion about an employee of mine, Richard Crossing. Richard is employed with us as a financial counsellor, however he has made me aware of his situation with the Financial Counsellors Association of NSW. I’m keen to get FCAN’s perspective before I make any decisions about Richards future employment with us.

Thanks,

Brad Addison General Manager

100    On or about 27 March 2013, Mr Addison had a telephone conversation with Mr Butler about Mr Crossing. Mr Butler advised Mr Addison that FCAN had withdrawn Mr Crossing's status as a student member on 11 February 2013. Mr Butler sent Mr Addison a copy of the letter that FCAN sent to Mr Crossing on 11 February 2013 withdrawing his student membership.

101    On the same day, Mr Crossing sent an email to Mr Addison providing an update on his issue with FCAN (emphasis in original):

Brad,

Carol and Richard are both awaiting membership notification of approval from FCAN. We as an Agency need the:

•    Supervision Policies of FCAN

•    Professional Development Requirements of FCAN

These can be obtained with confirmation of membership or from an agency request.

To maintain membership these details need to be completed through the year and need to be produced at the end of the year. These need to be organised now so these requirements can be met.

Richard's email sent on 7th March 2013 (Attached) with proof of enrolment in the Diploma Course. FCAN response is no reply. This may be normal as there may not be any fee requirements for me.

Carols Email sent for the third time on 13th March 2013.(Attached). Carol did receive details of where to pay membership but nothing else. Evelyn has sent payment.

To avoid any problems confirmation and those policies are required.

Included in this email:

•    Draft proposal by the FCA (Financial Counsellor of Australia) Peak AustralianBody. Giving the guidelines required to check regarding qualifications by an agency.

•    FCAN - Membership Requirements.

•    Copy of receipt of payment for Diploma for Richard.

From the Peak Australian Body the FCA giving proposed agency guidelines ( to be used Australia wide and awaiting final approval)

These proposed guidelines indicate that it is only required that agencies check if a Financial Counsellor "is a member of FCA body or is eligible to be a member" and has the knowledge to do the work. FCA being the NSW State body. Hence I have included the eligibility for FCAN membership.

102    On 28 March 2013, Mr Butler sent an email to Mr Addison as follows:

Dear Brad,

Further to our conversation yesterday in relation to Mr. R. Crossing, I confirm the following:

•    Mr. R. Crossing attended FCAN Financial Counselling training course during the second half of 2012. Mr. Crossing did not successfully complete the requirements of that course and therefore was not issued with a Certificate of Attainment for the course;

•    Furthermore, which I did not mention in our conversation, Mr. Crossing has not completed the Basic Counselling course which is an essential requirement for membership of FCAN. Under normal circumstances, FCAN conducts a Basic Counselling course (5 days) before the Financial Counselling course (20 days), both being the entry qualifications for membership of FCAN. Mr. Crossing indicated that he had previously attended other training equivalent to our Basic Counselling course and therefore it was his intention to satisfy the requirements of the Basic Counselling course through the process of recognised prior learning (RPL). Mr. Crossing did not submit to FCAN any evidence or commence the RPL process to enable him to obtain recognition for the training which he had previously attended;

•    On 11th February, 2013, we wrote to Mr. Crossing, advising him that we had withdrawn his student in training membership with FCAN, which had been granted to him at the time that he commenced his studies with FCAN. This withdrawal of membership was due to the fact that Mr. Crossing no longer fulfilled one of the “Eligibility” criteria for student in training membership of FCAN: “Students currently undertaking an approved and accredited Financial Counsellors’ Training Course and other compulsory components of the training requirements’;

•    On 9th March, 2013, Mr. Crossing emailed FCAN to advise that he had enrolled in the Diploma of Community Services (Financial Counselling) being delivered by Uniting Care Community Registered Training Organisation. Mr. Crossing requested that he be considered for student in training membership of FCAN.

•    While Mr. Crossing will be eligible to again become a student in training member of FCAN, it is not possible for him to practise as a financial counsellor as a student in training member. It is required that students in training are in a situation where they are able to observe suitably qualified other financial counsellors who are members of FCAN, and to have access to an accredited FCAN supervisor with whom to have regular supervision. Apart from FCAN’s requirements relating to qualifications for financial counsellors, there is the important matter of the ASIC “exemption”, which provides relief from licensing for financial counsellors provided the financial counsellors are appropriately trained and members of the local financial counselling association;

•    As mentioned, Mr. Crossing submitted a complaint to the Australian Skills Quality Authority (ASQA) in January 2012 in relation to our assessment of his performance during the Financial Counselling training course he attended. ASQA is the regulatory body responsible for registered training organisations such as FCAN. ASQA has recently advised FCAN that the Authority has not substantiated Mr. Crossing’s complaint.

103    On or about 2 April 2013, Mr Addison informed Mr Vardanega, Manager of Reportable Conduct and Policy at Anglicare, that the applicant had not completed his FCAN Financial Counselling Course. Mr Addison asked for advice in relation to what action he should take. Mr Vardanega suggested to Mr Addison that he meet with Mr Crossing formally and also put in writing a request for an explanation as to the circumstances of his failure of the FCAN Financial Counselling Course and how he intended to meet the requirement to be trained and eligible for membership with FCAN. On 4 April 2013, Mr Addison forwarded to Mr Vardanega the email he had received from Mr Butler on 28 March 2013. He asked Mr Vardanega to draft the letter he suggested be sent to Mr Crossing:

Hi Luke,

Regarding our Financial Councillor who started in late December (from memory). This is the email that resulted from a discussion I had with Ross from FCAN.

If you are happy to draft up something for me to use, that would be great.

Thanks,

Brad Addison

General Manager

104    Mr Vardanega did so, sending an email to Mr Addison that day, in which he set out some draft wording for the letter to Mr Crossing.

Dear Richard,

As you are aware, your employment with Anglicare was contingent upon you satisfactorily completing and being recognised as meeting the training and other eligibility criteria for membership of the Financial Counsellors’ Association of NSW. I understand that there is now a question mark over whether you currently meet these requirements or will be in a position to do so within a reasonable period of time. Within the next fourteen days, I require an explanation from you as to your current eligibility to continue in employment with Anglicare including what is occurring or proposed to occur in relation to the above. This is obviously a serious issue as it relates to your continuing employment with Anglicare. Please let me know if you require any assistance from Anglicare in terms of progressing a resolution.

Regards,

Brad Addison

105    On or about 10 April 2013, Mr Addison met with Mr Crossing. At the meeting, Mr Crossing, inter alia, challenged Anglicare’s interpretation of the Funding Agreement and FCSP Guidelines and said that the word “accredited” was open to interpretation. Mr Addison handed Mr Crossing a letter in the terms drafted by Mr Vardanega.

106    Later that day, Mr Addison reported to Mr Vardanega what had occurred at the meeting:

Luke,

As per our discussion, I’ve had a talk to Richard and have given him the attached letter.

He was understanding, but tried to talk around a whole lot of other issues. He thinks FCAN are targeting him personally and he think that he can find a clause in our funding contract that will enable us to maintain his employment. I’ve explained clearly that he has 14 days to provide evidence of his eligibility to become accredited with FCAN or further action will be taken regarding his employment with Anglicare.

I’ll talk to both you and Simon more about this next week, but need you to both keep in mind that I will be on leave from the end of the week for three weeks, so we will likely have to give him notification of termination while I’m on leave. I’ll quietly make arrangements with Evelyn and have an ad ready to run while I’m away and set up an interview date for just after I return.

Thanks,

Brad Addison

General Manager

107    On 11 April 2013, Mr Crossing sent Mr Addison the following letter:

Dear Brad,

Firstly I would like to say that I appreciate the support of Anglicare as an organisation and you personally as the General Manager, Evelyn as my Manager and Carol who has been acting as a Supervisor to me during this period, not as a work Supervisory but as a skills supervisor that every Financial Counsellor has.

Yesterday the 10/4/2013 you handed me a formal letter asking me to explain whether I meet the requirements for FCAN membership and whether I would complete the course in a satisfactory time.

In answer to this question, I believe that I do meet the FCAN requirements for membership. I am now actively studying to complete the Diploma of Financial Counselling which is a nationally recognised training qualification that provides a clear path to gaining FCAN accredited membership. This in no way varies on the understanding or conditions under which I was employed. I have already provided you with proof of my enrolment.

I am actively seeking to gain accreditation with FCAN as a Student in Training member. I brought to your attention issues and problems that I have been encountering in completing the FCAN course at the first opportunity. I have since commenced the Diploma course as a backup should I not succeed in appealing the FCAN’s decision. This appeal is currently before ASQA. This appeals process is long and complication, hence the need for a backup plan. While changing the way to gain FCAN accreditation the amount of time to get the accreditation should not change, nor has my eligibility to gain membership status changed with FCAN since my employment. As a person doing a recognised training program whether that program is through FCAN or another RTO you are still recognised to be eligible for the same Student in Training membership. http://www.fcan.com.au/?p=3

To be accredited an FCAN Student member is required to complete one year of supervision with either an accredited Financial Counsellor or experienced supervisor. During this time it is appropriate to accept clients under appropriate supervision. The student can stay at this level of Student in Training for up to 2 years while being supervised by an accredited Financial Counsellor. The FCAN Supervision Policy states that a great level of supervision is required for students as their level of expertise increases so the level of supervision can be reduced.

When I was employed by Anglicare it was clearly stated in the job advertisement and during the interview that you either had accreditation or had commenced training and are seeking the qualification. At the interview I indicated my qualifications truthfully and at what stage of progression towards accreditation I had achieved. The actual stage I was at was just completing the attendance at the FCAN course.. To gain accredited membership with FCAN would take any student one year even after the student had passed every element of the FCAN course this is because of the year’s supervision requirement. As I am currently receiving this supervision now it still allows me a year to achieve the study required and the accreditation would be achieved at the same time as if there was no FCAN problem.

As explained to you the FCAN situation was an unexpected attack. I felt and believe I have evidence that their assessment of my work was seriously [flawed]. While I was a few questions away from completing the course they terminated the course for me. As expressed to you the situation was serious enough to indicate that my intention was to take legal action against them. I did lodge a formal complaint which led to FCAN saying that I “had no way to complete the course”. This was despite FCAN indicating to me prior to this that there was clear way to complete the course. This to me was victimisation for instigating a complaint. My current appeal is still with ASQA and this is going slowly through an appeals process – I also have recourse to the Ombudsman and Department of Fair Trading, although it is a painfully slow process.

Under the FCAN membership categories FCAN states that previous accredited members have a clear path to gain accreditation by establishing their currency of knowledge, if this could be done fairly it may be a very quick way to gain accreditation. The emphasis is on whether this option could be fairly done given the FCAN history. The reason I would be eligible would be because I previously trained and practised as a Financial Counsellor with Wesley Central Mission’s Credit Line.

I have written to FCAN who have not responded to my request to clarify my membership situation, although I have expressed my desire to pay the membership fee if necessary. Their delayed response is beyond my control although their membership requirements are clearly available on the internet and I do meet these requirements. I spoke to you and assume you are still following this issue up to verify my membership. The only doubt is if I am paid up and I have asked them to clarify this point because at the FCAN course we were told that student membership was free and without cost for membership. Another area you were chasing up with FCAN was [their] current supervision policy and professional development requirements. As members both Carol and I have received no information regarding our membership.

While the appeal process with ASQA was underway FCAN notified me that a Statement of Attainment was not possible despite the fact that an appeal was in progress with ASQA and FCAN knew about this appeal. This is incorrect or denies a student’s right to complain about an issue with some prospect of a complaint being upheld. They also indicated that due to this my Student in Training right was taken away? This seems incorrect. I have provided evidence to FCAN that I am continuing study with another training body which despite problems with FCAN make me eligible for membership.

I would love to say that these issues had no effect on me and that there were no issues involved, sadly this would not be correct. Under my employment contract I am instructed to be honest and upfront and seek assistance and I believe in this issue I am asking for assistance.

When I started my employment with Anglicare I was hoping to avoid giving too much information regarding my medical history involving Mental Health issues due to privacy and stigma concerns. I was determine[d] to secure my position on my own merit. When I was applying for this position and during the recently completed probationary period I had been advised by my employment case worked to have their agency act as a support person for me in the work place and work with the employer should issues arise as I do have a past history of Mental Health disability?

At no stage did I indicate any untruth at the interview at which time I explained that I had a breakdown many years ago and felt there was no current impediment to me working and I have been working very hard over the last years to get back in the workforce. I believe my belief in my ability to perform the position despite my past was shown in the appraisal you gave me yesterday that the only issue you have with my performance was the FCAN issue. Carol, with multiple years of experience as an accredited Financial Counsellor and deeply involved in every case I have dealt with and with whom I have worked with on a daily basis indicates that she is completely happy with my work and considered me a professional Financial Counsellor.

My Mental Health issues seem in the past to be triggered by uncontrollable stressful situations arising and not dealing with them appropriately. The FCAN situation and the wider implications of FCAN’s actions are creating a great deal of tangible stress and anxiety and I wish to deal with it appropriately hence why I am asking for support. To me there is no question – my health must come before the job. Without good health being an effective team member would also be impossible.

My request here is that you do consider my past disability and allow a support person from Sureway Services to be involved with my work situation in an effort to avoid problems. As you indicated this area may be a problem it would be good to start here. I believe that they may offer financial and other assistance in ensuring this work situation succeeds.

I have in the past suffered for not asking for help. Currently I am dealing with Paul the Manager of Sureway Employment who is handling my case and would welcome meeting together at your convenience to discuss how to proceed. Paul assures me he knows you and will be endeavouring to make contact.

If there are specific issues that affect my employment left unresolved I am happy to provide clarification as there are 14 days to clear up confusion and personal meeting(s) may achieve great success and I will be available for such meeting(s) at your convenience. This may include how we meet our funding obligations to the Department of Fair Trading and possible impacts to the service of this issue.

Even if this letter clears up the FCAN confusion I believe the involvement of a support specialist may reap rewards and I welcome it. They may be able to offer resources to help the accreditation process occur faster and my ability to provide a better service. My intention is to work in a professional open manner and my desire is to offer all I have in an effort to achieve the desired objectives of Anglicare and I will work with all parties to this end.

Thank you again for your support.

Kind regards,

Richard Crossing

108    While on the letter of 11 April 2013, it is appropriate to make a number of other observations.

109    First, the letter commences by Mr Crossing recording how much he appreciates the support of Anglicare and Mr Addison personally. This does not sit with his allegations of the conduct of Mr Addison, in respect to the conversation of 22 March 2013, referred to above at [98]. I do not accept the applicant’s evidence that in the first sentence of this letter he was trying to smooth over what occurred on that previous occasion to work forward. Nor do I accept the explanation for the statement advanced in his written submission (of which there is no evidence) that “it is possible [he] was brought up to be respectful towards persons in authority”. The evidence reflects that the applicant had no hesitation in advancing his position if he perceives he has been treated unfairly. Second, he stated that he is “now actively studying to complete the Diploma of Financial Counselling”, being the Queensland course. The evidence was that he had enrolled, but by the time his employment was terminated, there was no evidence he had commenced any study. Third, he stated that this approach in “no way varies on the understanding and condition on which [he] was employed”. Plainly, as explained below at [138], this ignores that he was employed on the basis that he would imminently complete his FCAN course. Enrolling in another course which he had not yet commenced, in the context of not having completed the FCAN course (because he had not passed an assessment) is self-evidently a different position from that on which he was employed. Fourth, Mr Crossing wrote that he brought to Mr Addison’s attention “issues and problems that [he had] been encountering with completing the FCAN course at the first opportunity”. As explained below at [180]-[187], I do not accept that description of the events. Fifth, Mr Crossing stated that while enrolling in the new course changes the way he would gain accreditation, the amount of time it would take to gain accreditation should not change. For the reason just given, that cannot be correct. That the applicant appears in this context to refer to a supervision requirement, does not diminish the fact that he was required to complete a course of training. He had not commenced the new course, and the information provided to the applicant (and Anglicare) was that the expected completion date of the course (at a part time study timeframe) was 7 March 2015. That is vastly different from already having completed a course, which was Anglicare’s understanding. Sixth, Mr Crossing states in respect to his mental health that when he started his employment he was hoping to avoid giving too much information about his medical history for privacy and stigma concerns. The inference is that whatever was said, even on his own account, was limited. Finally, he states that the FCAN situation and FCAN’s actions were causing him stress. The evidence is he had been in dispute with FCAN since November 2012 and had made complaints before he had commenced employment with Anglicare. This letter of 11 April 2013 details his complaints with FCAN and the actions he had taken, in relation to the course he had not completed.

110    On 14 April 2013, Mr Addison sent an email in response, as follows:

Hi Richard,

Thanks for the response. I want to offer you whatever support I can through this time, but have to stress again that this is not about performance or lack of. It is simply a case that we must employ someone who has been trained as a financial counsellor and accredited as a full member (not as a student – FCAN state categorically that a student member may not practice as a counsellor) of FCAN. When interviewed, we were under the impression that you were finishing off the last subject and would then be a fully fledged and accredited financial councillor.

I’m happy to meet with you in the next couple of days to discuss this further.

Brad Addison

General Manager

111    On or about 16 April 2013, Mr Addison met with Mr Crossing where he again challenged Anglicare’s interpretation of the Funding Agreement and FCSP Guidelines, and said, inter alia, he was in the process of having his student membership with FCAN reinstated. Following the meeting, Mr Crossing sent Mr Addison an email in which he set out a number of options for him to resolve his issue with FCAN:

Brad,

Brad you said to put down some options:

1). http://www.fcan.com.au/?p=3

Affiliate Members

Eligibility:

Non practicing Financial Counsellor.

Financial Counsellor between positions who want to remain eligible to attend meetings and update training.

Long serving members who want to remain affiliated and may assist with expertise or time, and wish to continue to be involved.

Organisations or other States and Territories who want to be affiliated with FCAN.

Members living overseas for an extended period

Members unable to fulfil requirements for other categories e.g. due to illness.

Payment of a subscription as set by the FCAN Executive Committee.

Note: Non-practicing members who want to return to Accredited status, need to complete a proficiency test and/or complete extensive updates of training to bring skills and knowledge to the required level.

2). Complaint still with ASQA if found in favour they could lose ability to be accredited if they fail to do something.

3). Complaint with Ombudsman will be lodged tonight same as above different appeal..

4). I can take FCAN to court immediately to Fair Trading for FCAN breaching their contract with me as a student – a resolution would be as soon as Administrative Appeals Tribunal can hear the matter

5). Clarification of eligibility under Fair Trading Option – I understand Anglicares position although I do disagree with this position.

Directly to Fair Trading and funding bodies as an individual. And seek independent advice

6). Allow Paul (Sureway to have input and ideas – Have you arranged a meeting time?

7). Short training session as offered in Northern Area of NSW to get enough qualifications to practice at least talk to these people.

8). Direct representation to Fair Trading to indicate problems with FCAN

All of these options could lead to a quick solution if allowed time and with your holidays this does not leave us a reasonable time to consider how we can work together.

Or as mentioned a period of absence to be discussed as a last resort.

God bless,

Richard Crossing

Financial Counsellor

112    On or about 18 April 2013, Mr Addison met with Mr Crossing and Mr Paul Snudden, a representative from SureWay Employment and Training. The meeting was held at Mr Crossing’s request, and Mr Snudden was present at his request. Mr Addison gave evidence that the applicant asked Mr Snudden if he had any solutions to his issue with FCAN, to which Mr Snudden said that he had looked into possible solutions but had not found any given the applicant did not hold the qualifications required to be a Financial Counsellor. Mr Addison’s evidence was that Mr Snudden suggested to the applicant that if he accepted that he was not qualified, Anglicare might support him in the future once he was able to achieve accreditation. The applicant handed Mr Addison a medical certificate stating he was unfit to attend work for the next three weeks. Mr Addison informed Mr Crossing that he was going on annual leave and that Mr Vardanega should be his point of contact with Anglicare while he was away.

113    There appears to be a document which the applicant handed to Mr Addison at the meeting of 18 April 2013, which was in the following terms:

Proposed possible solution:

Relied on Facts

It would be unethical for Richard to practise leaving Anglicare and Richard himself liable if this was the case.

Richard is not just making up his stated condition and has a medical report requiring three weeks off work as of today and a past history of compensation cases related to this issue which Anglicare is aware of and were disclosed on employment. Anglicare are not unaware that I have a past condition that may make me vulnerable in the position we are in.

The unspoken concern of Richard -

With a mental health condition which has led to long term unemployment there is stigma and some organisations in the past have acted in a discriminatory manner to other employees while indicating that they are just obeying the rules. HR departments can see people with this condition as a legal nightmare. I have this concern and I pray it is incorrect.

Anglicare position to me is I need to show I am an "accredited member" of FCAN or we are really sorry.

My position is that there are other options and I propose one option again of many I have already proposed. Anglicare's position of not accepting any options is not logical. The answer keeps coming back to prove that I am an "accredited member" when you are asked to prove the impossible the only tool I have in my armoury is honesty and the pressure to perform the impossible.

Proposal

The quickest solution proposed in my mind which fits the circumstances is to determine in the interest of fairness if a student member of FCAN can be employed as a suitable employee.

The National Body of Financial Counsellors is giving Agencies like Anglicare clear guidelines to meet their responsibility.

FCAN members and staff are making sure this document provides good advice to the NSW Agencies. Agencies are in funding agreements and so a major concern was to make sure there was no conflict between these guidelines and Agency funding agreements. The biggest NSW funding agreement is with Fair Trading.

While this is a currently a draft document it is now in final submissions stage and all concerns if any were needed to be submitted before Feb 2013. So what should be available is a final draft document that is as current as possible on this issue and indicates clear guidelines.

This is a specific guide to make Agencies aware of their possible contractual obligations which may be open to Interpretation. Fair Trading is the biggest funding body with a vital concern in this issue as is FCAN. Most NSW Financial Counsellors operate under a Fair Trading contract and this is definitely advice to them and Anglicare on who would be eligible to work.

This proposed agency guideline was written and compiled by people with great knowledge of the specific Fair Trading contract that employs most people in NSW. FCAN employees and members look out for the NSW side of a national body and have been very active in the production of this document.

Under this guide to agencies that is current and involves all the parties it clearly indicates that FCAN Members and Students [c]ompleting the course or any course are eligible to practise.

The National Proposed Guidelines clearly indicates without confusion that being an FCAN student is not a bar to practising as Brad Addison indicates has been FCAN's absolute emphatic position

As this advice differs substantially from Anglicare's perception of what is required - in the Interest of fairness - is it not worth seeking clarification?

•    If Ross Butler's stated position with Anglicare is totally opposite to the clear directions given by FCAN (of which Ross Butler is CEO) to their stated position on the same question to all agencies. Should not this position be clarified? These documents and positions are clearly available on the internet and I have shown them to Brad.

•    These guidelines would indicate that Anglicare is basing its decisions on incorrect or incomplete understanding. Not just for me but all Agency's and workers need this issue clarified.

It is suggested that Anglicare:

o    Write to FCAN and ask specifically if they agree with The Agency Direction Guidelines available on the internet as guidelines and how the advice we are receiving is apparently different. Specifically in relation to who is eligible to practise as a Financial Counsellor?

o    Find out if Fair Trading agrees with this Guide to Agencies as a good guide to Agency's to meet their responsibilities. As an agency this will give us a clear outline to follow and meet Fair Trading requirements. As far as the guide to agencies is concerned any type of membership meets the FCAN requirements.

o    Write to the national body - a further final draft was due to be put forward before all the stakeholders in Feb and was to be available before now. Find out the final draft wording. It is probably the one on the Internet now.

o    As per our outline of the problem we are addressing in this meeting today-There would not be an issue if a student in my position could practise. If this is not the case we need to look for further solutions. Under medical advice I am not in a position to follow this up myself immediately.

As I appear to be the victim here someone is misleading in this situation, either the guidelines, FCAN or Anglicare and I believe fairness indicates there is enough doubt to make written enquiries.

114    I note in this document Mr Crossing expresses that he has an “unspoken concern” about discrimination because of his mental health issues that he has experienced in the past, and states he has “this concern and I pray it is incorrect”. That position is inconsistent with his evidence of the conversation with Mr Addison of 22 March 2013, as referred to above at [98]. On his account, Mr Crossing’s mental health issues were expressly complained about by Mr Addison on that occasion. If what Mr Crossing says had occurred in the meeting with Mr Addison on 22 March 2013, given Mr Crossing’s conduct generally, it would be expected that he would have said so in this document. The omission of the conversation of 22 March 2013, if it occurred as the applicant suggests, is notable. The applicant’s written submission (again of which there is no evidence) is not sufficient to explain the absence of the reference to the conversation.

115    That day, Mr Addison reported to Mr Vardanega the following:

G’day Luke,

Discussion with Richard today didn’t go as well as I may have hoped for.

He is still of the opinion that it is not black and white, that we can find other ways around our funding contract that states we must employ a Financial Counsellor accredited by FCAN. He handed me the attached medical certificate and asked that Anglicare not contact him while he is on sick leave for the next three weeks.

I’ve said fine, I’m back one day after the end of this certificate, so suggested that we get together then and come to a resolution. This will be Monday the 13th, unless you want to take any action in the meantime.

I’ve spoken with Delene briefly in regard to this, as she was in Wagga on another matter today.

Brad Addison General Manager

116    On 19 April 2013, Mr Addison sent an email to Mr Butler requesting FCAN's position in relation to engaging student members of FCAN as financial counsellors, in the following terms:

Good Afternoon Ross,

Thanks for the information you have provided to date regarding the status of Richard Crossing with FCAN.

Richard is still contesting our position on his current status. Anglicare is of the opinion that under the funding guidelines provided by the Office of Fair Trading, we are obliged to engage a Financial Counsellor who is full trained and accredited by FCAN. Richard disagrees with this position and states that there are a number of organisation with similar funding who engage student members of FCAN as financial counsellors.

Richard has asked that I seek FCAN’s position on this matter, I would appreciate it if you could advise me?

With thanks,

Brad Addison General Manager

117    As is plain from the face of that email, contrary to the applicant’s contentions, Mr Addison is following up his request to contact FCAN.

118    Mr Butler replied on 22 April 2013 as follows:

Dear Brad,

In response to your enquiry, I would advise the following:

•    My understanding is that the funding agreement which you have with the Office of Fair Trading requires that financial counsellors who provide financial counselling services are suitably qualified and accredited or eligible for accreditation with FCAN;

•    The licensing relief for financial counsellors provided by ASIC required that “a financial counsellor is appropriately trained” and “a financial counsellor is a member of, or is eligible for membership of, a relevant financial counselling association”.

The long-standing and ongoing interpretation of the above statements (in the context of NSW) is that membership or accreditation referred to is Associate Membership of FCAN. Also, there is another (higher) level of membership in FCAN which is referred to as ‘Accredited Membership”.

In FCAN’s “Membership Policy & Procedure” under “4 Students in Training” it is stated: “Before commencing practice students in training must meet the requirements for Associate Membership.

Further, also in FCAN’s “Membership Policy & Procedure” under “5 Associate Member” the criteria for membership are specified as: “Successful completion of an FCAN approved financial counselling training course, and an FCAN approved personal counselling course, and successful completion of observations sessions (sit ins) with a financial counsellor who has been accredited for three years”.

I believe the above information clearly specifies the qualifications and experience required for a financial counsellor to be described as “suitably qualified” or “appropriately trained” as required by the Office of Fair Trading or ASIC regulations. Also, the criteria for Associate Membership of FCAN are similarly quite clear.

FCAN is not aware of other agencies who are engaging student members of FCAN as financial counsellors, and if so, such agencies would be in breach of their funding contracts and the ASIC licensing relief provisions.

I hope the above information is helpful.

Regards,

Ross Butler Chief Executive Officer Financial Counsellors’ Association of NSW

119    Mr Addison forwarded that email from Mr Butler to Mr Vardanega the following day, on 23 April 2013.

120    On 15 May 2013, Mr Addison again met with Mr Crossing. Mr Addison’s evidence is that the applicant had still not resolved his issue with FCAN and did not offer any new solutions. Mr Addison reported the meeting back to Mr Vardanega as follows:

Ok, just spoke to Richard. He obviously has no new information to add and is still no closer to becoming an accredited financial counsellor.

He suggested that he takes 12 months leave without pay while he seeks his accreditation and we employ someone on contract. If I saw in Richard the potential for a great employee, I’d suggest considering this option. Because I don’t, I’m not.

I don’t think he’ll go quietly, I think he will suggest that we have an employment contract with him we are obliged to fulfil. Put simply, we advertised with ‘Accreditation by FCAN, or progressing to such’ as an essential criteria. Richard indicated in his application and interview that he was weeks away from becoming accredited. What he didn’t tell us was that he was already at that stage engaged in a dispute with FCAN regarding an assessment and the possibility that he would not accredited.

Luke – I’ve let Richard know that I would talking to you again today and that you would likely be taking the next step. As I said, he’s basically shuffling papers in his office, so the sooner we can take same action the better for everyone involved.

Let me know if there’s anything further you need to do at this end.

Thanks,

Brad Addison General Manager

121    There was a telephone discussion between Mr Vardanega and Mr Crossing during which Mr Crossing reiterated the points made in his letter and only added that he believed that he could sue FCAN or that Anglicare could grant him an extended period of leave without pay. Mr Vardanega highlighted that the applicant had informed the selection panel during the recruitment process that he was due to complete the FCAN Financial Counselling Course in November 2012 and that the selection panel had relied upon that in making the decision to employ him. Mr Crossing admitted that all of the actions that he had proposed taking to resolve his issue with FCAN would be lengthy and unlikely to result in him achieving accreditation as a financial counsellor any time soon.

122    Later that day, Mr Vardanega made the decision to terminate Mr Crossing's employment with Anglicare. Mr Vardanega communicated that to Mr Crossing, confirming it by letter:

Dear Mr Crossing

Further to our discussion and with regret, I advise that your employment with Anglicare will be terminated as of close of business today on the grounds of unsuitability for continuing employment.

The enterprise agreement provides in these circumstances for one week’s notice of termination or payment in lieu of that notice. In recognition of your service, Anglicare will provide two week’s salary in lieu of notice.

In the event that you in future succeed in gaining the appropriate accreditation, Anglicare will happily consider an application for employment from you.

I thank you for your service with Anglicare and wish you all the best for the future.

Yours sincerely,

Luke Vardanega Director, People & Culture

15 May 2013

123    On the same day, Mr Vardanega sent an email to Mr Addison and Ms Mason-Waugh summarising aspects of his conversation with Mr Crossing earlier that day:

Hi guys

In my final conversation with Richard he said he'd had mental health problems as a result of the issues around his failure to achieve accreditation and said that he would pursue an "outcome involving Anglicare through mediation via the appropriate channels". I just said "okay" and then he told me that he thought the mediation would take a couple of weeks to arrange and that period would enable him to try and resolve some issues directly with the Office of Fair Trading. I just said "okay" again. Playing dumb was easy because I had no idea what he was talking about. He may be referring to a workers' compensation claim in relation to the mental health problems so thought it best to let you both know.

Cheerio, Luke

124    For completeness, I note that the applicant communicated thereafter with Mr Addison, which was not information before Anglicare at the time of the alleged adverse actions. For example, the applicant, inter alia, sent Mr Addison an email on 21 May 2013, forwarding a response he had received from NSW Fair Trading to an inquiry he had made about the level of accreditation required to work as a financial counsellor. I note as an aside that the response included that the financial counsellor be “suitably qualified and accredited”. There was an exchange of communication with Mr Addison which related mainly to the issue of supervision. Mr Crossing also requested to be reinstated. Mr Addison responded, inter alia, that although this information in the email from NSW Fair Trading appeared “somewhat different” from what had already been provided to him, it did not change the position.

125    On 31 May 2013, Mr Crossing sent the following email to Mr Addison:

Brad,

I note Anglicare's position and restate that this position appears to be not on the facts stated but on a reluctance to employ me with my medical history.

I still have the work computer and I am still waiting to get together with Carol and pass on information re clients I had. As the only handover I have done was the two minute conversation to you it seems to be important that Carol should be informed of possible issues. Carol can take the computer with her afterwards.

At the time I commenced the Financial Counselling course in Queensland I spoke to Evelyn and she agreed to pay the initial costs and I enclose a invoice for this cost. If you can pass it on to Evelyn for attention it would be appreciated.

God bless,

Richard

126    On 19 July 2013, Mr Addison responded accordingly:

Evening Richard,

Apologies for not responding sooner, I've been quite busy and keep forgetting to ask Ev about this. I was in Orange yesterday for the opening of our new office and caught up with her. She recalls having conversations regarding you enrolling in the Queensland course, however she doesn't recall stating that we would pay the costs. This type of personal study is not something the agency would normally fund. Do you have any email correspondence with Evelyn to confirm this commitment?

Can I clarify if you are still holding any resources or information belonging to Anglicare?

In regards to your earlier statement suggesting our reluctance to employ you in terms of your medical history, I can state with good conscience that this is not the case. And I believe that you know this from our discussions very early on in your employment. The single reason we were not able to offer you ongoing employment was because to do so would have been in breach of our funding agreement. That was regrettable, as I did, and still do, hold you in high regard.

Brad Addison

General Manager

Observations

127    Pausing there. As is apparent from the chronology of events, there are some documents between the relevant persons which were created contemporaneously with the events leading up to and including the applicant’s termination of his employment.

128    Given that these proceedings are being conducted some years after the events, the contemporaneous records are, in my view, the most reliable documents recording the events, including the motives behind the termination. The documents do not support the applicant’s claims.

129    Mr Crossing did not challenge the respondents’ assertion that the contemporaneous records do not support his claim. As the respondents submitted, the applicant was given an opportunity in evidence to indicate any documents that did. He did not do so. When pressed in cross-examination, he said his view had changed when he was presented with documents in relation to his workers compensation claim. No documents were then indicated. Rather, Mr Crossing said that generally he had not seen the internal emails from Anglicare and the emails sent to Anglicare by Mr Butler until his workers compensation claim. However, he did not indicate any contemporaneous document which supported his account of the events, or his claims. He does not refer in his written submission to any such documents. At its highest he submitted that there was evidence in this Court in the emails from Mr Addison to Mr Vardanega that they held conduct and performance concerns about him that somehow support his case. No such emails were identified, and the emails properly read, do not reflect such a concern. As addressed elsewhere in these reasons, see [271]-[282] below, Mr Crossing misunderstands the reference to certain matters which he characterises as being a conduct concern. It will be recalled that this is in a context where the applicant’s case is that the qualifications for his position were raised as a ruse to have the applicant terminated from his position, because of his mental health issues and exercise of workplace rights.

130    Those contemporaneous documents all reflect that the basis of the applicant’s termination, and the events leading up to the event, was Mr Crossing’s lack of qualifications for the position. He had been employed on the basis that he would have completed the FCAN counselling course in November 2012, and he did not.

131    Before leaving the contemporaneous documentation it is appropriate to address the applicant’s submission as to Mr Butler. As will be apparent from the chronology, Mr Addison made inquiries with Mr Butler at FCAN as to the applicant’s position vis-à-vis the FCAN requirements. Mr Butler sent email responses, which were in evidence. Mr Crossing submitted that caution should be applied to the emails from Mr Butler because he is not impartial as he was in a major dispute with him. Anglicare were entitled to act on what Mr Butler informed them as to Mr Crossing’s status with them. They were also entitled to act on what they were informed was the position in respect to accreditation. This complaint is in the context where the applicant requested, on more than one occasion, that Mr Addison contact FCAN, no doubt to advance his side of the dispute he was having with them. That Mr Butler provided information which did not assist the applicant is not a basis to allege that he is biased or for Anglicare not to rely on it. The FCAN advice formed part of the material before Anglicare at the time of these events (irrespective of the correctness of any views expressed therein). It was the fact of being provided this information which is relevant. This material reflects on, inter alia, the state of mind or reasons for the actions taken by Mr Addison, Mr Vardanega and Anglicare, which the applicant impugns. There is no basis in the evidence to suggest that the respondents’ reliance on the information provided by FCAN was other than bona fide.

Evidence

132    Against that background it is appropriate to address the evidence on particular topics.

133    Given the nature of the applicant’s complaints, the topics and consideration is, in particular, centred on the basis on which Mr Crossing was employed.

134    The basis on which the applicant was employed is the first topic addressed, as that is at the heart of his complaints. Also addressed are topics that flow from or are associated with that which were the subject of submissions, inter alia, as to whether Mr Crossing’s evidence was reliable and credible. These topics are whether the applicant informed Anglicare at the first opportunity of his issues with FCAN, the applicant’s description of transferring his course, the applicant’s failure to make appropriate concessions in his evidence and the other qualifications which, during the course of these events, the applicant relied on. These are some of the topics relied on by the respondents in support of their submission that Mr Crossing’s evidence ought not to be accepted. During the discussion of these topics are illustrations of what is described above at [40]-[47], in my assessment of the applicant’s evidence. This consideration will also include a discussion of some of the applicant’s submissions about the evidence of Mr Addison.

135    Finally, before moving to the applicant’s claims, it is appropriate to address the evidence in respect to Mr Crossing’s mental health, as this not only forms part of a claim but is a basis on which he submits the evidence of Mr Addison is not reliable.

Basis on which Mr Crossing was engaged

136    At the heart of the applicant’s allegations is his submission that he was employed as a student member of FCAN working towards accreditation, and therefore if he held student membership he was qualified for the position. That submission is flawed. There is no evidence, or adequate evidence, which establishes that the applicant was employed on the basis that student membership simpliciter was the sufficient qualification.

137    First, as explained above, the advertisement recited at [72] made clear that accreditation with FCAN (in whatever form) was not the only criterion. To the contrary, the advertisement expressly refers to the need for the person to be “suitably qualified with financial counselling or other relevant tertiary qualifications”. The accreditation was “in addition” to that qualification. An applicant also needed “knowledge of the relevant Acts, legislation, code and standards governing charity organisations and financial services”. The applicant’s submission entirely ignores the plain words of the advertisement. It reflects a mischaracterisation of the requirements as specified.

138    Second, Anglicare employed Mr Crossing on the basis that he would be imminently qualified as a Financial Counsellor, as his application repeatedly stated he was undertaking; “the FCAN Financial Counselling Course which is due for completion at the end of November 2012”. I accept Mr Addison’s evidence that that was the basis on which the applicant was employed. As Mr Addison’s email to the applicant on 14 April 2013 states, inter alia, “[w]hen interviewed, we were under the impression that you were finishing off the last subject…”. Mr Addison’s evidence, consistently given, is supported by the contemporaneous notes of the job interview. Mr Vardanega’s evidence, which was based on the records of Anglicare and confirmed by his inquires with the job selection panel, was also that the applicant was employed on that basis.

139    Third, the position that being a student member of FCAN simpliciter is sufficient for the position is inconsistent with the legal requirements for the employment of a Financial Counsellor with Anglicare, described above at [28]-[31]. As stated above, the person must, inter alia, have undertaken appropriate training to ensure they have adequate skills and knowledge to provide financial services, which means they have successfully completed training in financial counselling provided by a person recognised by FCAN or such other approved persons. The person must be sufficiently competent and appropriately trained. That is the plain reading of the relevant ASIC Class Order and provisions of the Funding Agreement. Importantly, that was Anglicare’s understanding of the requirements, as explained by Mr Vardanega. I note also that Anglicare had before it the email from Mr Butler from FCAN, particularly of 22 April 2013, recited above at [118], which expresses the same view of the requirements.

140    Fourth, the same is also obvious from and reflected in the position description for a Financial Counsellor with Anglicare. Although not necessary for my conclusion, as noted above at [85], I am satisfied that the applicant was provided with a copy of the position description, of the type that was in evidence. I understand the applicant’s submission that he was not provided with a copy of the position description and that the document in evidence related to part time hours and he was working full time. However, the evidence, which I accept, was that the practice was to provide such a document. Mr Addison also gave evidence that a position description was provided to the applicant. Regardless, the document is for a Financial Counsellor position at the time and reflects that an essential criterion was that the person be “eligible for full accreditation membership with FCAN” and also hold “Relevant Tertiary/or equivalent Financial Counselling Qualifications”.

141    This document description and the legislative requirements are also inconsistent with the premise of the applicant’s case that the qualifications for the position were raised as a ruse to terminate his employment.

142    It can be accepted that there may have been confusion at the time of these events and in the evidence as to the use of the terms “student member”, ”associate member” and “full member of FCAN”. Mr Vardanega described the accreditation in cross-examination as follows:

Now, under FCANs rules, a person who has completed the course might be a student member, might be an associate member, might be an affiliate member. We throw into the mix also at times, you know, we’ve also used the word accredited, but so while the language might be loose and shifting, what we mean is the same thing: someone who is able to undertake direct client work. So in your particular case, you represented to the selection panel that you had completed the training. It did not then matter whether you [the applicant] would be characterised as a student member or as an associate member which was also an appropriate categorisation for someone at that time. The point was the selection panel were led to believe that you were eligible to provide direct client work. And, as I say, when it turned out that you were – that you did not meet that requirement, that you had not completed your training, you know, that fundamentally altered your position relative to the decision made by the selection panel that you were an appropriate person to be employed as a financial counsellor.

143    Mr Vardanega’s evidence was that he was not satisfied that Mr Crossing had undertaken the appropriate training or had adequate skills and knowledge to satisfactorily provide the financial services as required by the ASIC exemption. Mr Vardanega was not satisfied of the matters required by the Funding Agreement and FCSP Guidelines because Mr Crossing had not successfully completed training in financial counselling. Mr Vardanega also gave evidence that he informed Mr Addison of those views. As will be apparent from the reasons below, I accept that was Mr Vardanega’s view at the time, and that he informed Mr Addison of those views. Mr Vardanega terminated Mr Crossing’s employment on the basis of the applicant’s unsuitability for continuing employment; that unsuitability being his lack of appropriate qualifications. That termination is not contended to be an adverse action.

144    Mr Vardanega’s evidence was that although he did not agree with Mr Butler that a student member could not work, that was not the issue in this case. Rather, the issue was whether Mr Crossing met the requirements of the ASIC Class Order [CO 03/1063], Funding Agreement and FCSP Guidelines in terms of his ability to practice, that is, Anglicare’s ability to place a client in front of Mr Crossing to receive the financial counselling service. Mr Vardanega’s opinion was that he did not meet the requirements of the Funding Agreement, which are described above at [29]. It was not a situation where students in general could not practice, but directed to the individual, Mr Crossing, as he was not qualified.

145    Mr Vardanega highlighted that Mr Crossing had insisted to Anglicare that the question was whether he had a student training membership and the circumstances of the revocation were not relevant. Mr Crossing focussed on the fact he had regained eligibility. However, Mr Vardanega explained that the fact that he had regained eligibility for FCAN membership was not materially relevant to what occurred subsequently. Mr Vardanega said that in this case Anglicare had to look at the circumstances behind the revocation to determine whether the revocation impacted the organisation’s ability to put Mr Crossing in front of a client to perform the service they offered. The reason why Mr Crossing’s membership had been revoked was, in effect, because he had not completed the course of training because he had failed his assignment. Eligibility to practice as a Financial Counsellor is more than just a simple membership issue. Eligibility for student in training membership does not, in itself, entitle a person to undertake direct client work according to the ASIC Class Order [CO 03/1063], Funding Agreement and FCSP Guidelines.

146    As Mr Vardanega stated:

… the ASIC class order requires you to have completed training. FCAN had advised us that you had not completed training, that you had failed training. And in that regard, as you mentioned, that you had not completed certain training that they regarded as being mandatory. So that in this letter, responding to the question around training, was to advice that you had enrolled in a new course. As I say, that doesn’t meet the requirements for the ASIC class order that requires the training to be completed.

147    As Mr Vardanega explained in evidence, the applicant’s employment started with the representations made by him to the selection panel that he would be eligible for employment (being that he was expected to complete the FCAN course in November 2012), but when he commenced employment he lacked the essential qualifications or the basic eligibility criteria for employment as a Financial Counsellor. The applicant was employed on the basis that he would have completed his training by the time he started employment and therefore meet the terms of the ASIC Class Order [CO 03/1063], Funding Agreement and FCSP Guidelines for Anglicare to be able to put him in front of a client.

148    The applicant’s focus during these events and during this hearing on the issue of accreditation, tended to divert from the fundamental underlying issues.

149    To be blunt, that Mr Crossing was employed on the basis that he was imminently to complete the FCAN course, in November 2012, is the obvious and compelling inference from the circumstances. The applicant’s evidence and submission to the contrary is implausible, and I do not accept it. As explained below at [166], I also do not accept his evidence that he did not know that was the basis on which he was employed.

150    The applicant held himself out in his job application and resume as completing the FCAN course in November 2012. The applicant did not dispute this in his written submissions. The job required the applicant to be suitably qualified in financial counselling. Not surprisingly in that context, he promoted the fact that he was completing the course very shortly. He also informed the selection panel of that fact, relying on it during the interview, although he initially denied that in cross-examination. The applicant was asked in cross-examination:

Q:    All right. And you said in your evidence – in your materials [his affidavit], quote, that you were – and I can take this to you, if you need to look at it, Mr Crossing, but it was following words, quote:

Completing the FCAN course and expected to complete it in November 2012.

Q:    And that’s your evidence as to what you said at the interview, is that correct?

A:    No. That’s not correct.

151    Mr Crossing said thereafter he had no memory of what was said at the interview. Mr Crossing only accepted that proposition when it was put to him that he had stated as much in his affidavit evidence. The passage from the affidavit was read, with the question, “do you remember saying those words?” In response to this question, the applicant replied:

I don’t remember saying those words in that effect. What I’m saying is that the substance of what that is saying is that I remember the fact that, to my knowledge, and then I stated words to the effect, “I was completing the FCAN course, and expecting to complete it in November” – words to the effect – it’s just the truth, as far as my memory is concerned, is the course was still being run when I went for the interview, and was due to end in November 2012. When I say the course, what I’m referring to is the course of study, not the completion of my accreditation process.

152    That the applicant initially denied that obvious proposition, and the ease and willingness with which he did so, in its context, reflects adversely on him as a witness. I acknowledge that thereafter he said he had no memory of what was said in the interview, but that was not his answer to the question, it was a denial. The cross-examination was directed to establishing that was the position he held out to the selection panel. Acknowledging that is what he told the selection panel was not seen by him to advance his case.

153    I turn now to the applicant’s submissions.

154    I do not accept the applicant’s submission that Mr Addison gave inconsistent evidence that Mr Crossing held himself out as being imminently qualified and that he acted on that, or his submission that Mr Addison knew the applicant had not completed the course before he started employment. As to that last aspect, I note that the submissions directed to Mr Addison’s knowledge prior to the applicant starting employment could encompass anytime up until his commencement. The contention is rather vague, and answers given in cross-examination suffer as a result of the imprecision.

155    In any event, the crux of the applicant’s submission is that in cross-examination Mr Addison agreed that the applicant had been employed as a student member of FCAN and therefore, Mr Addison knew that at the time the applicant commenced his employment he had not completed his course. The evidence does not bear that out.

156    For example, in Mr Crossing’s written reply, in response to the respondents’ submission that the applicant had not brought his issue with FCAN to Mr Addison’s attention in a timely manner, he submitted, inter alia:

In his verbal evidence the Second Respondent [Mr Addison] indicated that prior to my employment he was aware I was a student member and still had not completed the course (Transcript Day 3 (30.09.2020) – page 159 line 45 to page 160 line 4). A possible explanation put forward in my closing submission for this was that truthfully, I had forgotten informing him of the conflict prior to my employment and therefore truthfully could not swear to it. This is not showing evidence of untruthfulness but on the contrary evidence that is not included by me that could assist my case has not been included in an effort for me to be truthful to the Court.

157    The passage relied on in support of his proposition does not do so. Rather, the very next answer which Mr Crossing does not refer to in his written submission, is inconsistent with the submission he was advancing.

158    The passage referred to is in the cross-examination of Mr Addison, and is this:

Q:    Well, sometime – yes – a couple of years or a year, but certainly after I had left Anglicare, your position, to the best of your knowledge at that stage, was that you had employed me as a student; is that not correct?

A:    I employed you with the understanding that you were a student at that time; yes, that’s correct.

159    That does not support the submission that Mr Addison was aware that the applicant had not completed the course. Significantly, the next answer was this:

Q:    Yes. Okay. And that you understood that I was working towards my accreditation; is that not correct as well?

A:    Correct with the understanding that you would be completing your qualifications in November of 2012.

160    Similarly, in respect to purported inconsistencies on the topic, Mr Crossing made the following submission, citing a passage of the re-examination of Mr Addison:

(ii)    The Second Respondent’s conflicting verbal evidence is that prior to my starting he was aware I was a student and had not completed the course (Transcript Day 8 (02.12.2020) – page 325 line 46 – page 326 line 2).

161    That passage (being the first question and answer below) in context does not say what Mr Crossing contends it does. Moreover again it is selective, omitting the answer immediately following which makes clear Mr Addison’s position (which is the opposite of that contended for):

Q:    Prior to, and at the date of Mr Crossing’s termination, and once he started, were you - did you understand him to have successfully completed training in financial counselling provided, either, by FCAN or some other person approved by the Office of Fair Trading?

A:    No.

162    However, not cited was the next question:

Q:    Mr Addison, had Mr Crossing come to you shortly before he started his employment and told you that he, “Had failed a subject of [his] FCAN course, and could not complete [his] course, at that time.” How would you have reacted?

A:    I would have consulted with our HR department because I would have been of the belief, then, that he was not qualified for the position.

163    The applicant’s selective references to transcript, and evidence, to support propositions that they do not when read in context, is reflective of Mr Crossing’s approach to his written submission and the conduct of his case. Other references relied on are to a similar effect. It is apparent that the reference to student membership does not have the connotations that the applicant contends (see below at [176]).

164    I note also the suggestion by Mr Crossing in that written submission recited above at [156], that he had forgotten informing Mr Addison of the conflict (which I assume to be the conflict with FCAN) prior to his employment, but in effect, he did tell him. That submission cannot be accepted. There is no evidence that he told Mr Addison prior to his employment that he had not completed the course or about his conflict with FCAN. Mr Addison certainly does not give such evidence. There is also no evidence of any conversation between Mr Crossing and Mr Addison at any time after signing the contract of employment in December 2012, until 11 February 2013. Nor is there a suggestion in the evidence of any conversation between Mr Crossing and Mr Addison to the effect that he was only being employed as a student or being a student simpliciter sufficiently qualified him for the position. Indeed, the submission now advanced is inconsistent with Mr Crossing’s evidence. His evidence was that he did not inform Mr Addison or Anglicare he had not completed the course (let alone because he had failed an assessment), and he gave extensive evidence justifying why he had not done so prior to commencing his employment, claiming that he did so at the first opportunity on 11 February 2013 (see the discussion below at [180]-[187]). The contemporaneous documents recited at [88] above, also reflect that when Mr Crossing did contact Mr Addison by email he would be revealing something to Mr Addison which he understood, was not otherwise known by him. On Mr Crossing’s evidence, Anglicare could not have known anything different to that the completion of his course was imminent at the time of his interview. The submission in the passage recited above at [156], is in part trying to explain an obvious factual problem with the applicant’s submission that Anglicare knew he had not completed the course. That is, there is no basis for how that could be so. I return to the evidence in respect to when the appellant first informed Anglicare of his issues with FCAN below.

165    In the same vein, the applicant’s submission that he had no way of knowing that the respondents had not checked his qualifications, also cannot be accepted. It is fanciful to suggest that Mr Crossing believed that Mr Addison had checked with FCAN before employing him (which would have resulted in him becoming aware that he had not completed the FCAN course because he failed an assessment) and that Mr Addison then did and said nothing about that to the applicant. It is also fanciful to suggest that Mr Addison, knowing that information, simply allowed the applicant’s employment to go ahead regardless.

166    Further, the applicant’s submission that Anglicare just needed to know what was happening to achieve accreditation and that he had no way of knowing that he was employed on the basis of being imminently qualified, is disingenuous. The significance of the qualification given the job advertised is self-evident. It is why Mr Crossing put the information in his covering letter, in his resume, and repeated the information in the interview. There was no other basis that he could be “suitably qualified in financial counselling or [have] other relevant tertiary qualifications”. As the applicant conceded in his written submission, his evidence was that he held “no official qualifications in financial counselling”, and there were no other “official financial counselling qualifications” in his job application. As noted above, there is no suggestion in the evidence of any conversation had between Mr Crossing and Mr Addison that he was only being employed as a student and being a student simpliciter was sufficient. The applicant’s submission that there was no time frame given for finishing the course is also disingenuous. Discussion of the time frame was unnecessary as he had held himself out as completing the course in November 2012.

167    I am satisfied that the applicant was aware of the significance of failing to complete the course, and its relationship to his employment. He stated in an email to FCAN on 12 December 2012, before he signed his contract, “[a]s the position begins in less than three weeks naturally I am keen to resolve any issues with FCAN”. Failing his assessment, and his dispute with them about that, was one of those issues.

168    I will return to the topic of the timing of the applicant informing Mr Addison of his predicament below.

169    Suffice to say, as previously noted, Mr Addison’s evidence is as follows:

Q:    Mr Addison, had Mr Crossing come to you shortly before he started his employment and told you that he, “Had failed a subject of [his] FCAN course, and could not complete [his] course, at that time.” How would you have reacted?

A:    I would have consulted with our HR department because I would have been of the belief, then, that he was not qualified for the position.

170    I accept that evidence. That acceptance cuts across any submission by the applicant that Mr Addison was aware the applicant had not completed his FCAN course (because he had failed an assessment). Significantly, Mr Vardanega who was with the HR department, similarly gave evidence that had Anglicare known that the applicant had not completed the course (and had failed) he would not have been employed as he was not qualified for the position.

171    The applicant’s failure to complete the course, because he had failed an assessment, materially altered the facts from those which were before the selection panel, given the legal requirements under the ASIC Class Order [CO 03/1063], Funding Agreement and FCSP Guidelines in respect to employment with Anglicare as a Financial Counsellor.

172    Whatever confusion may have existed as to the descriptions of accreditation, what is clearly established by the evidence is that the person had to be suitably qualified to fulfil the position. So much is obvious from the job advertisement. Even the email from Mr Addison of 14 April 2013 described “[i]t is simply a case that we must employ someone who has been trained as a financial counsellor and accredited as a full member” (emphasis added). It is apparent from that email, read as a whole, that Mr Addison’s reference to having been trained as a financial counsellor, in this context, is to the applicant having completing the FCAN course. It is the first aspect, that the applicant be suitably qualified, that was in issue (although that necessarily impacted on the second aspect). That involved more than simply being a person working towards accreditation with FCAN. So much can be easily illustrated by the fact that anyone (without any prior training) could just enrol in a financial counselling course and from then could say they would be working towards accreditation and provide services to the public on matters in which they had not yet had any training. That proposition only has to be stated to reflect the fallacy of the submission. It is obvious that it does not follow from the mere fact someone is a student member of FCAN that they would have the suitable qualifications for the position. That person has to have the relevant expertise and “be suitably qualified with financial counselling or other relevant tertiary qualification”. Nonetheless, that is the position that underpins the applicant’s submission. Regardless of accreditation, and whatever label is put on that, it would have been obvious to the applicant that to be a Financial Counsellor, it was necessary that the person was suitably trained, and that that was the issue of concern held by Anglicare in respect to the applicant.

173    Applicants for the position of Financial Counsellor had to be suitably qualified with financial counselling qualifications or other relevant tertiary qualification; completion of relevant financial training was a necessary criterion to enable the applicant to be qualified, even if he was working towards accreditation. The qualification Mr Crossing held out to Anglicare was the completion of the FCAN course for financial counsellors. The applicant’s submission that Anglicare had changed the qualifications for the position so that he was no longer qualified must be considered in that context. So to must Mr Crossing’s submission that the qualifications were raised as a ruse to have the applicant terminated because of his ill-health, exercise of workplace rights or some other unlawful reason. That the applicant has chosen to focus on one aspect of the qualifications only, namely accreditation, in isolation from the other necessary qualifications, does not make it the only qualification for the position of Financial Counsellor. The job advertisement and the position description make it clear that accreditation was not the sole requirement. That position accords with the legislative requirements that apply to Anglicare.

174    The applicant does not address that aspect of the essential requirement of the position in his evidence or submissions. Whenever he was asked about that aspect of the qualification requirements in cross-examination, he was evasive and directed attention back to his contention that he was employed as working towards accreditation, a different concept: see for example [323]-[324]. When Mr Addison and Mr Vardanega were asked questions during cross-examination in which they answered by reference to the qualifications required (as opposed to accreditation) they were brought back to the issue of accreditation: see for example [323]. As Mr Vardanega said, he explained to the applicant that it was not simply a membership issue, but nonetheless, he continued to (and still does) focus on that issue alone. I accept Mr Vardanega’s evidence. I do not accept the applicant’s evidence that the only issue ever raised was that a student member could not be employed under the Funding Agreement. I note also in this context that the reference in the applicant’s affidavits to the job advertisement only contains the line or reference to the student accreditation, and omits any reference to being suitably qualified with financial counselling or other relevant tertiary qualifications. The written submission simply ignores the first criterion of having qualifications in financial counselling or other relevant qualifications, as if that did not exist.

175    The applicant may have used that to justify, even to himself, that he considered he was qualified for the position (and his failure to inform Anglicare promptly of the issues that had arisen), but a momentary proper consideration reflects that cannot be so.

176    Being a student member does not have the significance the applicant contends. Rather, Mr Crossing’s continued focus or fixation on that erroneous proposition that eligibility to practice as a financial counsellor is a membership issue, to the exclusion of the basis on which he was employed given the qualifications required, is to distract from the real issue. That is, regardless of the debate about the descriptions of accreditation, Mr Crossing held himself out as completing the FCAN course in November 2012. Regardless of whether the respondent should have checked with FCAN that the applicant had successfully completed his course before he commenced employment, or whether Mr Crossing should have raised that what he had held out to them had not eventuated as he had failed an assignment, nonetheless the respondent had the belief that the applicant would imminently complete the course. That is the basis on which he was employed. He did not do so. He had not completed any course. That he had later enrolled in a course in Queensland does not alter that. The applicant, on enrolling in the course in Queensland was not, contrary to his evidence, in the same position, “understanding or conditions” on which he was employed. Mr Crossing would not concede the obvious.

177    It follows that I do not accept the applicant’s submission that being eligible to be a student member, or having his student membership reinstated, put him in the same position (as known to the respondents) as when he was employed. Again, one only needs to state the proposition to see its fallacy. Student membership simpliciter was insufficient for the job as advertised.

178    Finally, contrary to Mr Crossing’s submission, that he commenced working on 7 January 2013 without having completed that FCAN course does not establish that he must have been qualified for the position. He commenced the employment in the context where Anglicare did not know that he had not completed the course with FCAN in November 2012 as he had said he would, and indeed the reason for it was that he had failed an assessment. As explained above, the applicant had not informed Anglicare of these matters. As Mr Vardanega said, the applicant worked in breach of the requirements. As soon as Mr Vardanega became aware of the situation, the applicant was removed from dealing with clients because he was not qualified to do so. He should never have commenced work. That he did work at times says nothing about him being properly qualified. Rather, a consideration of the evidence reflects that once the issue was eventually raised by Mr Crossing, Mr Addison in particular, and in turn Mr Vardanega, gave the applicant opportunity and considerable latitude to address the situation that had arisen as a result of his failure to complete the course.

179    I am satisfied that the qualifications for the position did not change after Mr Crossing was employed which resulted in him no longer being qualified for the position, but rather, the applicant was employed on the basis that he would have those qualifications by the time he commenced his employment. At the time of the interview, the applicant held out that he would imminently be qualified. The respondents acted on the applicant’s representations. The evidence establishes that if Anglicare was aware Mr Crossing had not completed the course, he would not have been employed. A predicament arose once Anglicare was informed that he had not completed the course which needed to be addressed, particularly given the ASIC exemption, Funding Agreement and FCSP Guidelines that apply to Anglicare.

Informing Anglicare at the first opportunity

180    As noted above, the applicant gave evidence that he raised his issues with FCAN with Anglicare at the first opportunity. In his dealings with Anglicare after his employment he said in a letter of 11 April 2013 to Mr Addison, inter alia, that “I brought to your attention issues and problems that I was encountering in completing the FCAN course at the first opportunity”. I do not accept that evidence or submission.

181    As explained above at [164], the applicant has given some conflicting submissions about this topic, including suggesting that in his reply submission that he must have, but had forgotten, that he told Mr Addison of the FCAN issues prior to commencing his employment.

182    Moreover, it will be recalled that Mr Crossing’s evidence was that he first raised that there was an issue with FCAN with Mr Addison on 11 February 2013 (noting that the email of 8 February 2013 did not identify the topic which he wished to discuss): see [88]-[89] above. On 11 February 2013, the applicant was informed by FCAN that his student membership would be cancelled as he did not complete the course, although as noted above, the correspondence recognises previous communications which had informed him that FCAN would not be issuing a certificate of attainment for the FCAN counselling course: see [91] above. It can be inferred that by the time the applicant contacted Mr Addison he was very aware of the precarious nature of his position with FCAN. There is no evidence to support Mr Crossing’s submission where he states in his written reply in response to a submission that he did not inform Anglicare in a timely manner, that it was hard to contact Mr Addison. He did not give that evidence. Given he contacted Mr Addison by email, it is hard to see how there could be a difficulty.

183    I note also in that context the applicant’s submission that the delay in notifying Anglicare was caused by FCAN being closed over the Christmas period. The evidence from Mr Crossing, at its highest was, that FCAN was closed until January sometime. However, that does not assist the applicant. As explained earlier, the evidence was that he was in a dispute with FCAN from November 2012 and he was aware he had failed his assessment before he signed his employment contract.

184    The applicant also gave evidence that he said he did not feel it was necessary to advise them that he had not completed the course because he was still a student working towards accreditation. However, as explained above, that position does not fit with the job as advertised. There was no basis to ignore the criteria that had been advertised. I do not accept that was the reason why he did not inform Anglicare of his failure to complete the course. Indeed, that excuse also does not sit with the fact that in the letter referred to above at [107], and in evidence, he maintains that he informed Anglicare at the first opportunity.

185    At one stage in cross-examination when asked as to why he did not inform Anglicare earlier, Mr Crossing stated, in effect, that it was Anglicare’s responsibility to check up to see if he had completed the course. He stated that “it would be reasonable to assume that anybody that is due to complete a course of study may have problems through that course of study and that would be a reasonable thing to take into consideration”. That, however, does not address the question asked.

186    The applicant’s explanations for failing to inform Anglicare earlier than he did do not withstand scrutiny.

187    I do not accept Mr Crossing’s evidence that he raised with Anglicare the issues and problems that he was encountering in completing the FCAN course at the first opportunity. That opportunity would have been before the applicant signed his contract. At the time he signed his contract, he was aware he had held out at the interview and in his job application that the FCAN financial counselling course he was undertaking was due for completion in November 2012 and that had not occurred. He was in dispute with FCAN from November 2012. He had taken an appeal about his assessments to ASQA in January 2013. Even after he commenced employment on 7 January 2013, Mr Crossing did not inform Anglicare there was an issue with his qualifications, until he had no option left other than to inform Anglicare. I find he chose not to inform Anglicare that he had not completed his course out of concern it might affect him being offered employment. He may well have taken that approach in the hope that he could resolve any issue with FCAN without Anglicare finding out so as not to jeopardise the job he so plainly wanted. As Mr Vardanega and Mr Addison gave evidence, if they had known before his contract was signed, he would have been regarded as not qualified for the position and therefore would not have been employed.

Transfer of the course

188    The applicant asserted that he did not fail the FCAN course but transferred courses with the knowledge of his employer. That latter aspect is relied on by the applicant in his submissions as if Anglicare approved and accepted that fact as if it was sufficient to qualify him for the position as Financial Counsellor.

189    Mr Crossing in cross-examination, when it was put to him that he failed the course, said:

I failed the course according to Ross Buckley [Butler]. I transferred the course and did not complete it, and therefore it was – I was no longer registered in the course. As mentioned in my letter to Mr Addison, I was given the option of sitting again or doing something and I chose to appeal through ASQA ….

190    As is apparent from the chronology above, Mr Crossing had failed a required assessment which had the result that he did not complete the FCAN course. FCAN withdrew his membership. Mr Crossing then enrolled in a course in Queensland with Uniting Care about one month later, which made him eligible to be enrolled as a student member with FCAN.

191    Mr Crossing repeatedly referred to himself as having transferred courses, which was criticised by the respondents and was said not to reflect what occurred. In response, in his closing submissions, Mr Crossing submitted that the use of the description “transferred” was reasonable, because components of the FCAN course could reasonably have been used for the Uniting Care course in Queensland. However, Mr Crossing had simply enrolled in the Queensland course on 7 March 2013 and there was no evidence that he had transferred. His evidence was as at the time he left Anglicare he had not made any inquiries with Uniting Care as to whether any of the work he had carried out with FCAN could be used as a component in the Queensland course. His explanation was that he “never got the chance to apply for the credits because this situation blew up and [he] lost [his] ability to function prior to being able to apply for credits”. Given the significance of timeliness of the completion of any course, it is unlikely that there was no opportunity for the applicant to make inquiries as to whether any of his FCAN courses would be recognised, particularly given there was some time after he enrolled before he went on leave in which such inquiries could have been made. One might have thought it was important, as it may have affected the duration of the Queensland course; a matter of interest to the applicant. In any event, the applicant submitted the difference between enrolling with a new provider and transferring courses had no practical difference. There is a difference. The applicant enrolled in the Queensland course, after having not completed the FCAN course because he failed an assessment. Although the applicant was appealing that finding, it stands unless overturned. Although I understand why the applicant might choose to characterise what occurred as a transfer, he cannot avoid grappling with the circumstances of his enrolment in another course.

192    I note in this context that the applicant chose to challenge the handling of his assessment by FCAN (as opposed to resubmitting the assessment or taking up an offer by FCAN to have the assessment remarked), as he appeared entitled to do. But it inevitably followed that would take time, and in the meantime he had not completed the course and therefore did not hold the necessary qualifications for the position. Moreover, despite his confidence he must have considered that process may not succeed, which would still leave him without any qualifications. That he chose that course does not mean that the respondents must likewise do so. In this context, it will be recalled that in some of the contemporaneous email communications, Mr Crossing was suggesting various actions could be taken by Anglicare, including legal proceedings. The basis on which the applicant contends Anglicare were required to do what he was suggesting is unclear. The respondents did not need to commence action against FCAN or any other body on the basis that the applicant requested them to do so. Interestingly, that the applicant was suggesting such a course to Anglicare appears contrary to his current allegations as to their approach to him, and the reasons he now alleges for their actions. Rather, it reflects that the respondents were treating the applicant with consideration, in these difficult circumstances in which he found himself.

Failure to make concessions

193    As referred to earlier, Mr Crossing failed to make obvious concessions, and appeared to be assessing where he thought questions were heading before answering. An example is his cross-examination in relation to the obvious difference between the positon of a person who had completed a course of study and was undertaking practical training, and a person who had not even completed a course of study.

194    For example, his cross-examination included the following:

Q:    Well, okay, Mr Crossing. Do you accept on a level of abstraction that there is a real difference between two things: on the one hand you have a student working while completing the practical component of their course, having completed and passed their theoretical component that’s on the one hand?

A:    Yes.

Q:    And on the other, a student working while completing their coursework, including because they have failed part of that coursework? Do you understand the distinction?

A:    Not – yes, I – I understand you’ve used different words, but I’m not really understanding what you’re trying to say.

Q:    Well, Mr Crossing, I will put it to you again: there’s a difference, isn’t there, between someone who passes the course and then works while doing practical – well, practically works in their job and that also fulfils part of the practical requirements of the course and someone that fails their course but continues working? Those are two very different things, aren’t they?

A:    They’re different sentences, they’re different meanings, they’re different ideas. I don’t know where you are headed with this?

195    Pausing there, that the applicant was trying to assess where the cross-examination was headed before he would commit himself to an answer is reflective of his general approach to the case. It was to ensure that the answer he gave fitted with his case. The difference between the two positions postulated is obvious, and adverse to the applicant’s case.

196    After the applicant was told not to worry about where the questions were headed, he said:

A:    The question that you’re asking me for, is there a difference between someone that fails, I believe that at an interview, all I indicated was that the course was due to finish – or I was due to finish because it was a real and truthful belief. And the idea that during the employment, what I was required to do was stipulated in the contract as to do anything that Anglicare required, be it sit in a chair and do nothing. It was stipulated in the contract that if Anglicare wants you to sit in a chair and do nothing, that you will sit in a chair and do nothing. But I was employed in the position of a financial counsellor and I had the expectation and knowledge as a student that people could work towards that accreditation while actually completing the course. So they hadn’t completed the course. They were working with me so that they were completing the course while doing the practical component.

Q:    But you’re talking now about people working while they’re completing their practical component, you say?

A:    No, no, I – while they’re completing their studies. I’m talking about people that were completing their study of the course and they were working as financial counsellors at that stage.

Q:    But those people might have different tertiary qualifications, for instance. They might have other experience in financial counselling

A:    I don’t know their qualifications or experience.

Q:    But you’re the one that used them as an example, so I’m just trying to understand – well, I’m trying to put to you, rather, that it’s apples for oranges; there’s different situations that might arise. So it’s not quite fair to say that, well, there are people who complete their coursework and work as financial counsellors

A:    Yes.

Q:    Therefore, it was right for me to do it; do you accept that?

A:    No, I agree that there are positions in terms of what is right or wrong. I believe that I approached the employer honestly with what I believed were my qualifications and experience, believing that the employer was going to check my qualifications and experience and trusting that I was telling the truth at the time.

197    Those answers still do not respond to the question. Again, a failure to concede the obvious reflects adversely on him as a witness.

198    The applicant failed to accept that there was any difference between someone who had completed the course and was a student member who would require supervision, and someone who had not completed any course. There is a vast and obvious difference between the two scenarios.

Other qualifications

199    The applicant was also cross-examined on the topic of whether an employer would consider the failure to complete the FCAN course as relevant to a person’s qualifications.

200    Mr Crossing was asked:

Q:    All right. I will ask it again. If someone fails their financial counselling course, and the employer knows about that, or finds out about that, is that not something that might tend to show that the relevant person did not have the sufficient knowledge required for that role of the matters that are discussed in that advertisement?

A:    The answer is, it is relevant that that advertisement is to employ someone, and that those are what is seen as the qualifications to be employed. What happens after employment is that a number of circumstances can happen and change as evidence by – for example, the qualifications for the position, the training, everything can change after employment, but that ad is an ad that is to employ someone, and that was the purpose of the ad, and therefore not a situation that will not change as circumstances change.

Q:    All right, Mr Crossing, I will put it a different way. If before someone is employed?

A:    Yes.

Q:    And they fail the FCAN course, is that not something that might suggest that, notwithstanding when the advertisement was posted, that the person might not have the requisite knowledge to carry out that role?

A:    Well, I don’t personally believe that when I answered the question, “What made you able to fulfil that role”, I did not rely on just that course, I believe that the evidence shows that I also relied on the fact that I had completed two other courses, and was an accredited counsellor. So the emphasis on my situation is not necessarily the emphasis you would place on a student. It would be different in my particular circumstances to say that the failure of that course certainly was a question of – to start with, I didn’t fail, I transferred with the knowledge of the employer, and that the fact that I had failed is – it’s a large question of, I already had a degree in computer science, so knowledge of the – whether I had knowledge of the relevant aspects of the case, you would imagine that after working at Credit Line and working as a financial counsellor, I would have knowledge through that process, and that was also mentioned in my application for the ad. So while it would be for another person that did not have any other training, yes, it would be very relevant. For a person who has training that may get it in another way, it would not be so relevant.

Q:    All right. So, Mr Crossing, just from what you said before, am I right to understand what you said that things might change later on in employment which might put a different, or which might mean that the advertisement is not necessarily the be all and end all of what the role required?

A:    That’s correct.

Q:    Thank you. Now, Mr Crossing, you mentioned qualifications and accreditations. Let’s be very clear here. What do you mean when you say you weren’t previously an accredited counsellor? Can you be very clear with me on that?

A:     What I meant was that at that stage, accreditation – I would have to give you a whole history of the financial counselling situation, which has not come into evidence at the present time to answer that question, so I think we’re going beyond the realms of the case here. But the Credit Line was run by a lady called Betty Weule [Yule], who actually started FCAN, she was one of the founding members. She ran a course of training for – to accredit members to practice, and my wife and myself as per my wife’s affidavit, and myself undertook courses undertaken by Betty Weule, who was still a currently working member of FCAN when we actually – in 2013, when I was employed there.

Q:     What was the qualification that you achieved? What was the qualification?

A:    Yes.

Q:    Was it a certificate, diploma, how would you describe it?

A:     I would describe it as a – not sure. It was a long time ago, there was no -

Q:    When was it, Mr Crossing?

A:      I can’t remember the exact date without reference to diaries or reports or talking to my wife or the rest of it.

Q:    Are we talking about when you worked with Wesley Mission in the 80s, that far back?

A:     I’m talking about Wesley Central Mission, that’s the time I’m talking about, yes.

201    A number of matters arise from that passage, one being that he considered himself in a different position from other persons who had not completed a course, because of what he considered to be his circumstances. I note also, despite the importance of this course with Wesley Mission to the applicant’s case, even at the time he gave evidence, there was scant information given as to this course.

202    To similar effect, after a series of questions which the applicant did not answer, he was asked:

Q:    If someone fails FCAN and doesn’t hold any qualification showing that they’re a qualified counsellor, does that tend to support – does that tend to show to an employer that they might not have well developed counselling skills?

A:    Yes it would show -it would show a possibility of that if there was no other circumstances applicable. In my case there were other circumstances.

Q:    Which was your experience from 30 years ago that you worked as a financial counsellor on a voluntary basis from time to time?

A:    Which was the sum total of the experience that I put before them and they accepted as meeting the criteria for the position.

203    Again, that does not answer the question. Moreover, to suggest that the respondents accepted that as meeting the criteria for the position is incorrect. There were no other qualifications in his resume which could satisfy the requirements for the position. I note that the applicant in his cross-examination appeared to suggest that his Bachelor of Information Technology was relevant, although it is unclear on what basis that could be so. Not surprisingly, there is no evidence to suggest that the Bachelor degree had any relevance to the Financial Counsellor position at Anglicare, as it plainly was not a financial counselling qualification of the nature required. The applicant did not suggest to the respondents that it was. As the applicant acknowledged in his written submission, his evidence was that he held no official financial counselling qualifications.

204    This may be a retrospective justification for his actions, but whatever his belief might be, the evidence does not establish that at the relevant time Mr Crossing had been previously accredited. More importantly, the issue is not whether the applicant can now establish he was accredited at the time because of his involvement with Wesley Mission. The issue is also not whether Mr Crossing believes he was accredited by that process. Rather, the issue is what material or information was before Anglicare at the relevant time. The evidence does not establish that the applicant provided any material to Anglicare to establish that he was an accredited financial counsellor (based on any course he completed with Wesley Mission, or otherwise).

205    Significantly, given the qualifications necessary for the Financial Counsellor position, Mr Crossing’s job application makes no reference to him being an accredited financial counsellor with Wesley Mission. Nothing in the application refers to any course with Wesley Mission, the nature of any course undertaken, its contents or status. Mr Crossing does not list any such course or accreditation under the heading “further education”. In relation to the applicant’s resume, which contains at least a good deal of what can be described as puffery, the absence of a reference to such a qualification or accreditation, is notable. The puffery in the resume was to create the impression he was more experienced than he was. For example, although the applicant’s evidence was that in effect from 1988 until late 2012 he was on workers compensation, in the covering letter to his job application, he stated that he had “fulfilled an unpaid counselling role for the last 20 years”. Yet, apart from providing one example during cross-examination of helping a person with a traffic matter during that time, the applicant was unable to refer to any other example, or name any persons, whom he assisted in a financial counselling capacity. While there is a brief reference in the applicant’s resume to having undertaken some voluntary work at Mission Australia, where it is stated that the applicant was “Sponsored for Financial Counselling”, the significance (if any) of this experience is not clear from the document.

206    Although the applicant’s written submission refers to his resume which states that he “had completed training and worked as an accredited financial counsellor with the Wesley Central Mission”, that submission does not accurately reflect the content of his resume. There is no reference in the resume to being accredited.

207    Of course, it is for an organisation, here FCAN, to accredit the person. There is no suggestion they had done so. Nothing in the evidence reflects that, at the time of these events, FCAN considered he was accredited. All the evidence is to the contrary. Despite there being no evidence that FCAN had ever accredited the applicant on the basis of any study he did with Wesley Mission (or on any other basis), the applicant freely and repeatedly described himself in evidence as being an accredited financial counsellor at the time of these events by virtue of this course with Wesley Mission.

208    I note in this context, as an aside, that the applicant said that the course he had undertaken with Wesley Mission which resulted in his accreditation was taught by Betty Yule, who was still with FCAN. It may be recalled, that in the draft letter which Mr Crossing provided to Anglicare, recited above at [94], in the context of a suggestion of remarking his assessments, the person who he said was not sufficiently independent to conduct any remarking is Ms Yule, on the basis that she was involved in teaching the course, and a founding member of FCAN.

209    The only evidence before Anglicare from FCAN as to any previous course is in the email from Mr Butler referred to above at [102], which states that Mr Crossing indicated to FCAN that he previously attended other training equivalent to FCAN’s basic training course but had not provided to them any evidence of an earlier course or commenced any process to enable recognition of it. This information was provided in a context where FCAN advised that the applicant needed to complete (but had not completed) a basic counselling course in addition to the Financial Counselling Course.

210    There is no suggestion in the evidence that Mr Crossing provided any evidence of this course to Anglicare. Mr Crossing informed Anglicare of this purported accreditation after they became aware of the issue with his qualifications. On the evidence, all Anglicare had was his assertion that was so. That the applicant might have believed that he had previously been “accredited” does not provide a basis for Anglicare to blindly accept his assertion, and nor does it place an obligation on them to attempt to verify it as he contends. In any event, it is unclear how, such a course completed 20 years earlier, provided him with any relevant knowledge or expertise, including of the current legislative regime. The significance or status of this course appears to have been elevated by Mr Crossing from the time he presented his job application, through the events in 2013 and during the course of the hearing. There is no evidence that the brief reference in his resume to Wesley Mission played any part in his employment. The notes of those interviewing the applicant do not reflect reliance on that. Given the limited information as described above, that is unsurprising.

211    There is no proper basis on which it could be contended that Anglicare should accept his assertion that he was nonetheless previously accredited, and act upon that.

Mental health

212    Before turning to the applicant’s claims, it is appropriate to consider the evidence in relation to the applicant’s mental health, as it is a basis for his claims, but also a topic on which he relied to argue that Mr Addison gave inconsistent evidence.

213    It may be accepted that Mr Addison was aware that Mr Crossing had mental health issues. Although Mr Addison did not accept the proposition that he had observed any mental health problems, he accepted in evidence that he was aware of the applicant’s mental health concerns prior to 22 March 2013. However, what is unclear on the evidence is the timing and extent of this knowledge.

214    In his job application, as recited above at [79], Mr Crossing put that there were no mental health conditions which may inhibit or affect the performance of his duties or his ability to work safely. It is also clear that in his letter to Mr Addison of 11 April 2013, recited above at [107], the applicant admits that when he started employment with Anglicare he avoided giving too much information concerning his history of mental health issues and explains the reasons why he did that: see also the nature of the reference in the applicant’s written notes which he provided to Mr Addison at their meeting on 18 April 2013 at [113]-[114] above. It is also apparent from the applicant’s letter of 11 April 2013, that the applicant directed his mental health concerns at “the FCAN situation and the wider implications of FCAN’s actions”, rather than at any actions of Anglicare or Mr Addison, with the letter saying how much the applicant appreciated the support of Anglicare and Mr Addison (see the discussion at [107]-[109]).

215    That necessarily colours the extent of the information known by Mr Addison.

216    Even when Mr Crossing took three weeks’ leave with a medical certificate, starting 18 April 2013, Mr Addison said he was not made aware of the specifics of the medical condition as to the basis of the leave. The medical certificate provided by Mr Crossing stated only that he was unfit for work from 18 April 2013 to 9 May 2013, but did not explain the basis for his absence.

217    The applicant said at some stage, he was not sure if it was either at the interview or possibly “shortly afterward”, that he told Mr Addison he had a breakdown in the past, but that it “was behind” him. When pressed in cross-examination, the applicant could not recall when he first raised his mental health issues. The applicant accepted that what he did say to Mr Addison did not go into any detail about his condition. Given the applicant’s statement in his letter of 11 April 2013, it can be accepted that any information given to Mr Addison prior to this date was limited.

218    As explained above at [98], I do not accept the applicant’s evidence as to the events he alleges occurred at a meeting with Mr Addison which he says was on or about 18 March 2013 (which appears to be the meeting of 22 March 2013), where his mental health issues were purportedly discussed.

219    As noted above, Mr Addison accepted in evidence that he was aware of mental health concerns prior to 22 March 2013, noting that he had originally said he knew about it in April 2013. This is relied on by the applicant to contend that Mr Addison’s evidence should not be accepted.

220    The respondents submitted that:

Mr Crossing emphasises an inconsistency in Mr Addison's evidence about when he first knew about Mr Crossing's mental health issues. This inconsistency is unsurprising given the significant passage of time since Mr Crossing's employment and the fact that Mr Crossing was less than candid about the extent of his historic mental health issues. That lack of candour is apparent from Mr Crossing show cause reply on 11 April 2013 that when he started employment he was 'hoping to avoid giving too much information regarding my medical history involving Mental Health issue due to privacy and stigma concerns.' It is also disingenuous for Mr Crossing to criticise Mr Addison on that basis given Mr Crossing's ambiguous evidence as to when he first disclosed his history of mental health issues [footnote omitted].

221    There is force in that submission. I do not consider that inconsistency as to the timing of his knowledge, in all the circumstances, adversely effects Mr Addison’s evidence. Given the effluxion of time (as even accepted by the applicant), such inconsistencies are not surprising. Rather, Mr Addison made an appropriate concession when he was provided with some evidence to the contrary. This is to be contrasted with the approach generally taken by the applicant.

222    In the applicant’s written reply, in relation to criticism directed at him as to the ambiguous nature of his evidence, he submitted, inter alia, that:

The Court should note that after the passage of some 7 years some hesitation as to exactly when events occurred particularly given contradictory evidence is expected. The Court will note that I do not have a photographic memory as demonstrated to the Court when I gave an outline of the case without notes or referring to documents.

223    The applicant appears to be accepting that the effluxion of time can result in some inconsistency without it necessarily affecting the credibility or reliability of his evidence.

224    As a general proposition, that much may be accepted, as reflected by my observations made above at [37]-[39]. Yet the applicant does not afford such recognition to the evidence of others. This is also in a context where Mr Addison no longer works for Anglicare and these matters of detail appear to have been on the applicant’s mind since they occurred. The same could not be said in relation to Mr Addison.

225    The applicant also submitted in reply that:

The issue that after seven years we both may have a difference of opinion of the exact date this occurred is a deflection from the real issue which is did he know prior to taking the adverse action – to which he answers is now yes, he did know.

226    As to the suggestion that the timing is a deflection from the real issue, I note that much of the submission on this topic arises because of the applicant’s reliance on the purported inconsistencies in Mr Addison’s evidence on this topic as a basis for finding he was untruthful.

227    That said, the evidence is that Mr Addison did know that Mr Crossing had mental health issues before 22 March 2013, although at best, the extent of the knowledge was limited.

The applicant’s claims

228    The applicant’s claims are summarised above at [20]-[25].

229    As a general observation, there is a significant amount of overlap and repetition in the applicant’s submissions on many of his claims. In some instances, the submission seemed inapt to the particular claim. This is not said as a criticism, and I note that the applicant was unrepresented, but to explain why some matters are addressed under more than one claim or under different claims.

230    It is appropriate to first address the workplace rights on which the applicant relies.

Workplace rights

231    As outlined above at [22]-[25], the applicant alleges that adverse action was taken against him because he exercised four workplace rights: first, the right that Anglicare not take adverse action against him because he had a mental disability, contrary to s 351 of the FW Act; second, the right to take or not take up membership with FCAN, referring to ss 346-347 of the FW Act; third, the right to participate in the consultation process under the Enterprise Agreement under s 341(1)(b) of the FW Act; and fourth, the right to make a complaint in relation to employment under s 341(1)(c)(ii) of the FW Act.

Mental disability

232    The applicant alleged that Mr Addison was aware of his past mental disability, and that due in part to his mental disability, Mr Addison took adverse action against him. In particular, the applicant’s mental disability was said to be the reason Mr Addison made changes to the qualifications necessary for his position by requiring qualifications he was not employed with and further adverse actions taken against him until 18 April 2013: see [22] above. He also alleges that he was discriminated against because he received less favourable treatment when compared to another Anglicare employee, Ms Carol Stackpoole: see for example ASOC at [90].

233    As explained above, although Mr Addison did know that Mr Crossing had mental health issues before 22 March 2013, at best, the extent of the knowledge was limited. The respondents’ submission appears to accept Mr Crossing has a mental disability (albeit that they had limited knowledge of it), but that no adverse action was taken as a result.

234    It is appropriate to refer to s 351 of the FW Act which relevantly states:

351 Discrimination

(1)    An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note:    This subsection is a civil remedy provision (see Part 4 1).

(2)    However, subsection (1) does not apply to action that is:

(a)    not unlawful under any anti discrimination law in force in the place where the action is taken; or

(b)    taken because of the inherent requirements of the particular position concerned; or

(c)    if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

   (i)    in good faith; and

(ii)    to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3)    Each of the following is an anti discrimination law:

[…]

(ab)    the Disability Discrimination Act 1992;

[…]

235    In Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547, O’Callaghan and Thawley JJ observed in relation to s 351 at [114]-[118]:

[114]    The general operation of s 351 can be stated in the following way.

[115]    First, putting to one side whether any of the exceptions in s 351(2) apply, the Court’s task in determining the application of s 351(1) is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason — see: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (Barclay) at [5] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ).

[116]    Secondly, where adverse action is taken as a result of a decision made by an individual within a corporation, the identification of the operative reasons for taking the adverse action turns on an inquiry into the mental processes of the relevant individual: Barclay at [140] (Heydon J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (BHP) at [7] (French CJ and Kiefel J); [85] (Gageler J).

[117]    Thirdly, the object of that inquiry is to determine the actual reasons. These are determined from all of the facts and circumstances and inferences properly drawn from them. In light of s 361, one would ordinarily expect direct evidence from the individual responsible for the employer’s action as to their reasons for that action, which may properly include positive evidence that the action was not taken for a prohibited reason. Of course such statements must be assessed against all of the facts and circumstances. In Victoria v Grant (2014) 246 IR 441 at [32], Tracey and Buchanan JJ summarised the following propositions from Barclay at 517 (French CJ and Crennan J); 542 (Gummow and Hayne JJ); 545-546 (Heydon J) and BHP at [19]-[22] (French CJ and Kiefel J); [85]-[89] (Gageler J):

•    The central question to be determined 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.

•    The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.

•    It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”

•    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.

[118]    Fourthly, s 351(1) does not apply, even though it otherwise would have applied, if the relevant action falls within s 351(2). Where s 351(2)(b) is raised as an issue, the Court’s task involves determining whether the adverse action was “taken because of the inherent requirements of the particular position concerned”. If adverse action was taken because of the inherent requirements of the particular position, or for reasons which included such a reason (s 360), the adverse action is not prohibited by s 351(1), even though it would have been so prohibited absent the existence of such a reason.

236    As noted above at [12], adverse action is defined in s 342(1) to include action taken by an employer against an employee if it discriminates between the employee and other employees of the employer.

237    The applicant alleges that he had a right to the benefit of a workplace law under s 341(1)(a) of the FW Act, being the DD Act, and the right not to be discriminated against because of a disability under the DD Act. The respondents accept that the DD Act is a workplace law within the meaning of s 341(1)(a) of the FW Act and that the applicant has a workplace right in that he is entitled to a benefit under that Act.

238    In Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462; (2014) 232 FCR 560, Flick J at [58] observed:

The terms of s 342(1) do not suggest that the term “discriminate” should be given anything other than its normal meaning. Other provisions within the Fair Work Act also support the conclusion that the term “discriminate” should be given its normal and ordinary meaning. And that meaning has a width of application. For the purposes of s 342(1), Item 1(d), the term “discriminate” simply means to treat employees differently. That simple meaning underlies, it is considered, other provisions in the Fair Work Act which use the same term. Those provisions are ss 153, 195 and 354.

239    I note that the contravention of anti-discrimination legislation described in s 351(3) does not necessarily mean that s 351 of the FW Act has been contravened: RailPro Services Pty Ltd v Flavel [2015] FCA 504; (2015) 242 FCR 424 at [112]-[114] per Perry J; Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754 (Morton) at [68]-[69] per Rangiah J. In Morton, Rangiah J recognised at [70] that there appears to be some tension between the views expressed in Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; (2017) 327 ALR 460 (Sayed) and in Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2014) AILR 101-659 (Pilbara Iron) about the meaning of the phrase “discriminates between” in s 342(1), Item 1(d). Rangiah J at [71]-[72] preferred the construction in Pilbara Iron, that Item 1(d) requires less favourable treatment of an employee (or a group of employees) in comparison to other employees of the employer. I note that Mortimer J at [161] in Sayed held that the concept of less favourable treatment is picked up by the anti-discrimination laws described in s 351(3). It is of no practical moment in this case.

240    In any event, the applicant’s reliance on the position of Ms Stackpoole to establish his claim that he has been discriminated against when compared with others is misplaced. Although it is not necessary for the applicant to identify an actual comparator, no person other than Ms Stackpoole is identified to support the applicant’s claim. Mr Crossing provided no proper evidence in support of that claim. Rather, the evidence establishes that Anglicare required all Financial Counsellors, including Ms Stackpoole, to be properly qualified.

241    On any scenario, Ms Stackpoole is not an appropriate comparator. The appropriate comparator would, inter alia, be someone who does not have any financial counselling qualifications, as that was the state of the information before Anglicare at the time of these events. At the very least, an obvious point of distinction is that Ms Stackpoole held qualifications in financial counselling, which the applicant did not. The evidence was that Ms Stackpoole had a diploma in financial counselling from the University of Ballarat. Although, at times the applicant appeared to claim to be in the same position as Ms Stackpoole because he had undertaken some course with Wesley Mission, that position is untenable. As explained above at [204]-[207], the applicant did not produce any evidence to Anglicare that he had completed any financial counselling training. That the applicant does not recognise that obvious distinction in their positions, but rather insisted he is in the same position as Ms Stackpoole, reflects adversely on him as a witness.

242    I note that the applicant submitted that if the respondents wanted to challenge what he said about Ms Stackpoole, they could have called evidence. From the respondents’ perspective, any evidence from Ms Stackpoole was irrelevant to the issues properly before the Court. Any evidence from Ms Stackpoole is only relevant to the applicant’s narrative of events. It was he who relied on her as the basis of his claim. Relevantly, there was evidence before the Court that Ms Stackpoole had a diploma in financial counselling.

243    The applicant has not established that he has been treated any differently than any other employee, or was discriminated against vis-à-vis other employees. Rather, there is no evidence that the applicant has been discriminated against or treated less favourably than a person in a comparable position. Even if that had been established, there is no evidence that it was on the basis of his mental disability. The evidence establishes any conduct by the respondents occurred as a result of the applicant’s lack of qualifications.

244    I return to the issue of the applicant’s mental health in relation to the other claims and adverse actions he makes, below.

Right not to be a member of an industrial organisation - membership with FCAN

245    Although this claim is made, it is unclear whether it is pursued, as it is not addressed in the applicant’s closing submissions. Nonetheless, as it is referred to in his submissions filed prior to hearing, I will address the claim.

246    The applicant alleges that he had a workplace right to be, or not be, an officer or member of an industrial association under s 346(1)(a) of the FW Act, namely to take or not take up membership with FCAN. Section 346(1)(a) provides that a person must not take adverse action against another person because the other person “is or is not, or was or was not, an officer or member of an industrial association”. As the respondents correctly observe, this is not a workplace right which falls within Div 3 of Pt 3-1 of the FW Act, but a protection in Div 4 which addresses industrial activities.

247    An “industrial association” is defined in s 12 of the FW Act as follows:

(a)    an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law; or

(b)    an association of employees, or independent contractors, or both (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case may be); or

(c)    an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors;

and includes:

(d)    a branch of such an association; and

(e)    an organisation; and

(f)    a branch of an organisation.

248    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83; (2018) 260 FCR 564, Bromberg J considered the meaning of an industrial association at [21]-[64]. The respondents refer in particular to [37]-[40], and [1400]-[1401] of the explanatory memorandum, as follows:

[37]    The definition of industrial association is mainly relevant to the general protections in Part 3-1 of the Bill. It has three limbs.

[38]    Paragraph (a) of the definition provides that an industrial association means an association of employees and/or independent contractors, or an association of employers, which is registered, or recognised as such an association (however described), under a workplace law (as defined in this clause).

[39]    Paragraph (b) of the definition provides that an industrial association means an association of employees and/or independent contractors (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment, or interests as independent contractors, as the case requires. This element of the definition differs from the pre-reform definition in subsection 779(1) of the WR Act in two respects:

•    it now includes informal associations of employees and/or independent contractors; and

•    the requisite purpose of protecting and promoting their interests does not need to be a principal purpose of the association.

[40]     Paragraph (c) of the definition provides that an industrial association means an association of employers, a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors.

[…]

[1400]     Division 4 provides protections in relation to a person's freedom of association and participation or non-participation in industrial activities. The protections in the Division revolve around the right to engage or not engage in certain industrial activities - namely, being a member or officer of an industrial association or engaging in activities of industrial associations. The Division prevents adverse action, coercion and misrepresentations in connection with these industrial activities. It also prevents inducements to be, or not be, a member of an industrial association.

[1401]     All of the protections relate to industrial associations. Industrial association is defined in clause 12. The definition covers unions and employer associations (whether or not registered or recognised under a law), and also covers employees and/or independent contractors who come together informally in the workplace for a purpose which includes protecting and promoting their interests in matters concerning their employment.

Illustrative example

Andrea works at the Bouncy Bluebell Childcare Centre. The manager, Bernadette, has been asking child care workers to put away heavy equipment at the end of each day while also watching the children. This requires the staff to leave the children without supervision. Andrea is concerned that this breaches the relevant government regulations. She suggests to a number of her co-workers that they meet after work to talk about whether they should take a collective approach on this issue, including reporting the issue or contacting the union. If the other employees agree to the meeting, they will be an industrial association within the meaning of clause 12.

249    I accept the respondents’ submission that FCAN does not fall within the definition in s 12.

250    The evidence establishes that FCAN is the peak membership body that represents, supports, trains and accredits financial counsellors in New South Wales. FCAN is a not for profit, charitable and benevolent institution.

251    The respondents submitted, by reference to the evidence, that in relation to s 12(a), FCAN is not an association of employees that is registered or recognised as such an association under a workplace law. A “workplace law” is defined in section 12 of the FW Act to mean: the FW Act, Registered Organisations Act 2009 (Cth) (RO Act), Independent Contractors Act 2006 (Cth) (IC Act), or any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters). FCAN is not registered or recognised by the FW Act, the RO Act, the IC Act or any other law of the Commonwealth or New South Wales which regulates the relationships between employers and employees.

252    In relation to s 12(b), FCAN is not an association of employees (formed formally or informally) whose purpose includes the protection and promotion of their interests in matters concerning their employment. FCAN’s purpose is: to be a not for profit, charitable and benevolent institution; and to provide support to financial counsellor members and financial counselling agencies, particularly those which are public benevolent institutions and registered charities, through professional development, training and advocating for reform and funding for members. FCAN’s objective is to ensure that: financial counsellors in New South Wales are supported to comply with best practice; the financial counselling sector has secure, stable and sustainable funding; financial counselling has a high profile; vulnerable consumers have an effective voice; and that FCAN is a strong, adaptive organisation that is valued by members, government and other stakeholders.

253    In relation to s 12(c), FCAN is not an association of employers.

254    It follows that the applicant did not have a “workplace right” to take or not take up membership with FCAN, as alleged. FCAN does not fall within the definition of an industrial association for the purpose of section 346(1)(a) of the FW Act.

The right to consultation under the Enterprise Agreement

255    The applicant alleges the respondents had a duty and responsibility to hold discussions with him regarding situations of major change and redundancy in a manner agreed to under the Enterprise Agreement pursuant to cl 37 and 39.

256    The respondents accepted that the Enterprise Agreement is a “workplace instrument” for the purpose of s 341(1)(b) of the FW Act and that it applied to the applicant. They accepted that the applicant had a right to participate in the processes in cl 37 and 39 (where applicable), but that these clauses were not relevant to or enlivened in this situation and therefore were not benefits to which the applicant was entitled. The evidence of Mr Addison and Mr Vardanega was that this did not fit within the clauses of the Enterprise Agreement.

257    Clause 37 of the Enterprise Agreement deals with the introduction of change. Clause 37 relevantly provides:

37 - INTRODUCTION OF CHANGE

37.1 Employer's duty to notify

37.1.1     Where an employer has made a definite decision to introduce major changes in program, organisation, structure or technology that are likely to have significant effect on employees, the employer shall notify the employees who may be affected by the proposed changes.

37.1.2     “Significant effects" include termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities; promotion opportunities or job tenure; changes in the designation of staff positions; the alteration of hours of work; the need for retraining or transferring of employees to other work or locations and the restructuring of jobs. Provided that where this agreement makes provision for alteration of any of the matters referred to an alteration shall be deemed not to have significant effect.

37.2 Employer's duty to discuss change

37.2.1     The employer shall discuss with the employees affected the introduction of the changes referred to in clause 37.1.1, the effects such changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees

37.2.2     The discussions shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in subclause 37.1.1.

37.2.3     For the purpose of such discussion, the employer shall provide in writing to the employees concerned, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to the employer's interest.

258    Clause 39 relates to redundancy and relevantly states:

39. REDUNDANCY

…

39.2 Discussions before termination

39.2.1    Where the employer for any reason, including the cessation or reduction of grant funding, has made a definite decision that the employer no longer wishes the job the employee has been doing, done by anyone and the decision may lead to termination of employment, the employer shall hold discussions with the employees directly affected.

39.2.2     The discussions shall take place as soon as practicable after the employer has made a definite decision which will invoke the provisions of clause 39.2.1 and shall cover inter alia, any reasons for the proposed terminations, measures to avoid or minimise terminations and measures to mitigate any adverse effects of any terminations or the employees concerned.

39.2.3     For the purposes of the discussion, the employer shall, as soon as practicable, provide in writing to the employees concerned, all relevant information about the proposed terminations including the reason for the proposed terminations, the number of categories of employees likely to be affected and the number of employees normally employed and the period over which the terminations are likely to be carried out. Provided that any employer shall not be required to disclose confidential information,

259    As can be seen, cl 37 of the Enterprise Agreement required Anglicare to notify and discuss with employees “major changes in program, organisation, structure or technology that are likely to have significant effect on employees”.

260    The applicant’s claim is premised on there being a significant or major change to the financial counselling program because a person could no longer be a student in training, simpliciter, as he was.

261    The respondents deny that a decision was made to change the requirements or criteria of the Financial Counsellor role.

262    As explained above at [179], in my view there was no change to the role, but rather the predicament arose because the applicant did not have the qualifications he said he would have attained. The position never was that being a student member simpliciter was sufficient to satisfy the requirements. The applicant’s claim is therefore based on a false premise.

263    In any event, the steps leading up to, and the reasons for, the applicant’s termination, did not constitute a major change in Anglicare's organisation which was likely to have a significant effect on employees. Therefore, cl 37 is not enlivened. It follows that the respondents were not required to notify and hold discussions with Mr Crossing pursuant to cl 37 of the Enterprise Agreement.

264    That said, the applicant was notified of what was occurring and they did hold discussions with him about the position he was in.

265    It is cl 39 which defines redundancy for present purposes. Clause 39.1.2 provides that “redundancy occurs where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone and that decision leads to the termination of employment of the employee, except where this is due to the ordinary and customary turnover of labour”. For the reasons set out below, it is readily apparent that cl 39 has no application. Again, the applicant’s submission proceeds on the flawed premise that there has been a change in the positon.

266    Mr Vardanega explained:

Q.    Mr Vardanega, I put it to you that you – your organisation no longer required a student working in the position, and that the position as advertised, my position, became redundant because there was, effectively, nothing left for me to do as a student; would you agree with that?---

A.    No, I – I wouldn’t agree with that. The situation involving your employment started with the representations you made to the selection panel, and you presented to the selection panel that you were eligible for employment ..... but you actually arrived to start work with us lacking those attributes, like, lacking the essential – you know, the basic qualifications, as it were, or the basic eligibility criteria for employment as a financial counsellor. So then, as the process continued, we engaged with you to try and see whether we could identify a pathway for you to meet those criteria - - -

267    The evidence plainly establishes that the position of Financial Counsellor was not redundant. Anglicare had not decided that it no longer required the Financial Counsellor role to be done by anyone. The email from Mr Addison to Mr Vardanega on 10 April 2013 reflects that arrangements were being put in place for the job advertisement to be prepared for the position. Rather, given the applicant had not completed the FCAN course as he said he would have, he was not qualified for the role. This had a flow on effect in relation to his eligibility for FCAN accreditation. The position for which the applicant was employed was not for a student simpliciter.

268    The applicant also relies on cl 35.16 of the Enterprise Agreement which relates to disciplinary action.

269    Clause 35.16.1 relevantly required Anglicare to follow its dispute resolution process before taking any action to “discipline or terminate the employment of an employee on the grounds of the employee's performance or conduct”.

270    There is no evidence that any conduct or performance issue was relevant.

271    The evidence establishes that Anglicare did not discipline or terminate the applicant on the grounds of performance or conduct. The action taken against him was because of his qualifications, or lack thereof, for the position of Financial Counsellor at Anglicare. Mr Addison gave clear evidence that he did not himself have any issues with how Mr Crossing performed the role, at least at the time. Indeed, Mr Addison’s conduct, in which he gave the applicant considerable latitude, is to the contrary.

272    There appears to be only three matters that are relied on by the applicant in this regard.

273    The first appears to be the suggestion, based entirely on the reference in correspondence by FCAN that the applicant was not a fit and proper person. Mr Vardanega agreed that FCAN advised him that the applicant was not a fit and proper person to practice as a financial counsellor in New South Wales.

274    However, the applicant misunderstands that term in the context in which it was used. In answer to a question by him as to the meaning of that phrase, Mr Vardanega said:

That would be a person who meets the requirements – the legal requirements to practice as a financial counsellor in New South Wales. So in this particular context that includes the classic of the ASIC class order. It requires the person to have completed appropriate training. It requires them to be eligible of or a member of a financial counselling association and I just emphasise there a relevant category of membership one could reasonably interpreter that to mean and then in relation to the conduct of Anglicare Services under the Office of Fair Trading funding agreement, it was a person who also met the personnel requirements contained in that funding agreement.

275    Mr Addison’s evidence was to the same effect:

In the context that we’re currently discussing, in the evidence we’re looking at, my understanding of a “fit and proper person” is someone who is suitably qualified, having completed the financial counselling training and becoming accredited with FCAN. I don’t believe that “fit and proper person” refers to your conduct or your performance.

276    It is plain that the phrase is readily understandable and commonly used in that context.

277    As Mr Vardanega explained, he regards eligibility to practice as an essential qualification issue and not a misconduct issue. It was not an issue of character, but of eligibility.

278    Despite that evidence, the applicant still submitted in closing that there were conduct issues that should have been brought to his attention.

279    However, as Mr Addison said, he thought that he had informed the applicant of that. Certainly, given the meaning of the term fit and proper person, the applicant was aware of FCAN’s views as to him being not qualified to practice.

280    The second matter, and aligned with that, was the applicant’s suggestion that the respondents held the view that they had been misled by him in the interview as to the completion of the course, and that that was a conduct issue. However, there is no evidence that the respondents were of that view. Mr Vardanega did not regard it as a conduct issue. Rather, as a matter of fact they had been told that he expected to complete the course, and he had not. There is no evidence to suggest that the respondents considered the statement at the time it was made to be false. That the applicant was given such latitude thereafter supports that.

281    The third matter appears to be that Mr Addison’s work notes record that on 18 April 2013, Ms Stackpoole contacted him in relation to a discussion she had had with the applicant that day. The notes reflect that she told Mr Addison that “she had concerns about [the applicant’s] practice as a financial counsellor and gave several examples of situations where she felt the advice [the applicant] had given clients was inaccurate or not the best way to resolve a serious financial situation”. Bearing in mind this is 18 April 2013, and the applicant was on three weeks’ sick leave, it is unclear what is suggested ought to be done. The issue in relation to his qualifications had already arisen, and the steps (of which the applicant complains) were taken. The only remaining event which occurred very shortly after his return to work, was the termination, which is not alleged to be an adverse action.

282    In any event, performance was not an operating reason for the applicant’s termination. This view is supported by Mr Addison’s email of 14 April 2013 to the applicant, recited above at [110], where he stated that “I want to offer you whatever support I can through this time but have to stress again that this is not about performance or lack of”. I note also that Mr Crossing in his letter to Mr Addison, of 11 April 2013, and in his email to Mr Addison, of 27 May 2013, after his termination, accepted his termination was not a performance issue.

283    I note also that the applicant relies on cl 34, although that is not addressed in the applicant’s closing submissions, and is only briefly mentioned in his written submissions filed prior to the hearing. The applicant also asserts that cl 35.13 activates cl 34 in this case. Clause 34 is a dispute resolution procedure. Mr Addison was cross-examined on his awareness of such a clause. Mr Addison denied Mr Crossing’s suggestion that he was denied his right to enter into the dispute resolution process because Mr Addison had already resolved the issue. Mr Addison disagreed with the suggestion that any of the actions were undertaken to prevent him exercising his rights under the Enterprise Agreement. It appears from the applicant’s question that this is said to relate to the issue of raising qualifications for the position, performance issues and redundancy. For the reasons already given, those underlying factual assertions are flawed. I note also when Mr Crossing was cross-examined about the Enterprise Agreement and cl 34, as to what more should have occurred, he accepted that he and Mr Addison engaged in discussions concerning the dispute, as required by cl 34(d).

284    The applicant has not established that there was any breach of the Enterprise Agreement because of conduct issues. There is no evidence he was disciplined or terminated because of any conduct issue. The evidence is plainly to the contrary. In so far as it is suggested that this aspect of the claim is broader, in that it relates to issues including the raising of qualifications and redundancy, the applicant also has not established any breach. The other bases, or at least some of them, appear to have been relied on by the applicant more in respect to his right to make a complaint, which is addressed immediately below.

The right to make a complaint

285    The applicant contends that he had a workplace right to make a complaint and due to him exercising this workplace right and actually making a complaint to Mr Addison, Mr Addison raised the qualifications for the applicant’s position with the effect that he was no longer qualified for the position, citing Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 314 ALR 346 (Shea (No 6)), which is discussed below at [289]-[294].

286    The applicant submitted that he complained to Mr Addison with the purpose of achieving a different outcome, as indicated by his position that students could practice and by asking Mr Addison to go to FCAN and check his student membership. He contends that this is reflected, inter alia, by Mr Addison’s evidence that he was continually looking for loopholes around what Mr Addison was saying was the position. He submitted that his complaint was conveyed as a grievance, that he found fault and complained that Mr Addison’s actions were incorrect and accused him of misunderstanding the qualifications. As a result of the complaints, the applicant alleges Mr Addison took the following adverse actions; (i) Mr Addison required higher qualifications from the applicant than he was employed to hold; (ii) he was harassed regarding a need to have higher qualifications; (iii) he gave him a show cause letter; and (iv) he held a meeting with the applicant on 18 April 2013 where his employment was put at risk if he had the wrong answers (see above at [20]).

287    The respondents accept that there is such a workplace right but contend that the applicant did not make a protected complaint. The respondents contended that for a complaint to fall within the scope of s 341(1)(c)(ii), it must convey a grievance, a finding of fault or accusation: Shea (No 6) at [29]. Discussions or conversations that are “an ordinary incident of employment”, including comments about another person's work, do not amount to a “grievance, a finding of fault or accusation”: citing Maxutova v Nunn Media Pty Ltd [2017] FCCA 2336 at [102]. A complaint is distinguishable from a mere request for assistance: Hill v Compass Ten Pty Ltd [2012] FCA 761; (2012) 205 FCR 94 at [48], and from a mere refusal to comply or mere resistance to a direction by an employer: Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 153; (2017) 275 IR 285 at [59].

288    Turning to the principles in respect to making a complaint.

289    In Shea (No 6) at [29] Dodds-Streeton J observed:

I concluded, for reasons set out below, that in the context of s 341(1)(c)(ii) of the Act:

(a)    a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;

(b)    the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;

(c)    the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;

(d)    the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);

(e)    a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;

(f)    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; and

(g)    a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.

290    That reasoning was further developed at [619]-[625]:

[619]    The relevant object of the provision is to protect employees from retribution in the form of adverse action because they have exercised a workplace right by making a complaint in relation to their employment, rather than to protect employees who have proved, or are able to prove, that the grievance or accusation is justified or meritorious. Were it otherwise, the protection afforded by the provision would be largely illusory, as persons would be vulnerable to retribution for making a complaint unless, and perhaps until, their case could subsequently, by some unspecified means, be proved or found valid.

[620]    It does not follow, however, that the making of false, baseless, unreasonable or contrived accusations of grave misconduct against fellow employees constitutes the making of a complaint that an employee is able to make in relation to his or her employment, and thus invokes the statutory prohibition on adverse action.

[621]    While the factual basis of a complaint need not be “true” or capable of ultimate substantiation, in my view, the grievance must at least be genuinely held and, where it takes the form of an accusation of fault, the complainant must believe it to be valid. There would otherwise be no real, but merely a spurious, grievance. The exercise of the workplace right constituted by the making of a complaint is not within the scope of statutory protection if it is made without good faith or for an ulterior purpose, extraneous to that for which the statutory protection was conferred.

[622]    The protection conferred by the provision is directed at workplace rights. When the relevant workplace right is the employee’s ability to make a complaint in relation to his or her employment, to make a complaint not in order to communicate the stated grievance or accusation so that it may be appropriately considered and redressed, but to achieve some collateral advantage or objective, would not, in my opinion, invoke the statutory protection. No legitimate statutory objective would be achieved.

[623]    Accordingly, in my view, the complainant must hold a genuine belief in the truth of the matters communicated as a grievance or accusation. In the absence of such a belief (which may be difficult, albeit not impossible, to establish in the absence of some reasonable basis) the complaint would not be a genuine grievance or finding of fault.

[624]    Further, the grievance or accusation must be communicated for a proper statutory purpose, which would, at least, entail giving the employer notice of the relevant matters or securing information, protection, redress or some other appropriate response.

[625]    In my opinion, the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.

291    Although the Full Court did not review the reasoning, it did express caution about implying any constraint that would inhibit the ability to freely exercise the statutory right to make a complaint: Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; (2014) 242 IR 159 at [12]-[13].

292    Shea (No 6) has recently been considered by two Full Courts. In PIA Mortgage Services Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225 (PIA Mortgage) at [12]-[16] the Full Court observed in relation to the observations of Dodds-Streeton J:

[12]    We respectfully agree with Dodds–Streeton J that s 341(1)(c)(ii) of the FW Act contemplates that not every complaint that an employee makes in relation to his or her employment is one the employee is “able to make” (for present purposes, it is unnecessary to address the ability to make an inquiry). The question then arises as to how the provision distinguishes complaints that come within its reach from those that do not.

[13]    Justice Dodds–Streeton considered that the word “able” refers to an entitlement or a right. We respectfully agree. However, her Honour’s statement that a complaint “must be underpinned by an entitlement or right” is ambiguous. On one view, it may indicate that the complaint “must be underpinned by an entitlement or right to make a complaint”. On another, it may indicate that the provision captures any complaint by an employee concerning an entitlement or right related to his or her employment. In our opinion, the former view is consistent with the succeeding sentence in the passage and with s 341(1) of the FW Act as a whole. The phrase “is able to” appears in both s 341(1)(b) and (c). In s 341(1)(b), the phrase indicates an entitlement or right to initiate, or participate in, a relevant process or proceeding. In s 341(1)(c)(i), the phrase indicates an entitlement or right to make a complaint or inquiry to a person or body. Consonantly, in s 341(1)(c)(ii), the phrase describes a right or entitlement to make a complaint or inquiry in relation to the employee’s employment. It may be observed, however, that whichever view is taken makes no difference to the outcome of this case.

[14]    On the understanding that s 341(1)(c)(ii) requires an entitlement or right to make a complaint in relation to the employee’s employment, there must be an identifiable source of that entitlement or right. In Shea, Dodds–Streeton J did not suggest that the entitlement or right is limited to one arising under an instrument such as legislation, an industrial instrument, or a contract of employment. In fact, her Honour was careful not to attempt any exhaustive description of the source of the right to make a complaint or inquiry. Nor did her Honour suggest that the entitlement or right must be conferred expressly or directly by the source.

[15]    The expression “workplace right” in s 341(1) of the FW Act covers a broad range of rights. Under para (a), a person has a workplace right if the person is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body. Under para (b), a person has a workplace right if the person is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument. Under para (c)(i), a person has a workplace right if the person is able to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or any workplace instrument. The expression “workplace instrument” is defined in s 12 to mean an instrument that is made under, or recognised by, a workplace law and concerns the relationships between employers and employees. A “workplace law” is defined to include the FW Act and a law of the Commonwealth, State or Territory that regulates relationships between employers and employees. It was not argued that any law that touches upon relationships between employers and employees is necessarily a “workplace law”. Neither was it argued that the general law of contract is a “workplace law”. Those matters can be left aside for present purposes.

[16]    The “workplace rights” under paras (a), (b) and (c)(i) of s 341(1) are confined to rights, roles and responsibilities under, or arising from, workplace laws and workplace instruments. In contrast, s 341(1)(c)(ii) is not so confined, providing that an employee has a workplace right if the employee, “is able to make a complaint or inquiry in relation to his or her employment”. There are three obvious potential sources of an employee’s ability to make complaints which fall outside s 341(1)(a), (b) and (c)(i), but within (c)(ii). Those sources are legislative provisions that are not workplace laws, contractual terms providing a right to make complaints and the general law.

293    More recently, in Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 (Cummins), Bromberg J (with whom Mortimer J agreed), expressed general agreement with many of the principles arising from Shea (No 6) in relation to what constitutes a complaint within the meaning of s 341(1)(c), but took issue with the proposition expressed at [625] of Shea (No 6) and the reasoning in PIA Mortgage which endorses it (at [15]). Bromberg J rejected the proposition that only complaints sourced in some right or entitlement held by the employee are protected under s 341(1)(c)(ii) (at [64]). His Honour considered in this respect that PIA Mortgage was plainly wrong to read such a limitation into s 341(1)(c)(ii), and indicated that, had it been necessary to do so to decide the case in Cummins, he would have declined to follow it (at [67]-[68]).

294    Those observations are dicta: Salama v Sydney Trains [2021] FCA 251 (Salama) at [102]. Consequently, to the extent relevant in the present case, I am bound by PIA Mortgage: Salama at [102]; Wong v National Australia Bank [2021] FCA 671 at [74]; National Tertiary Education Union v University of Sydney [2020] FCA 1709; (2020) 302 IR 272 at [186].

295    The issue is whether the applicant has established he made a complaint within the scope of s 341(1)(c)(ii). The matters identified by the applicant in his statement of claim are; statements made in a meeting with Mr Addison on 22 March 2013; an email to Mr Addison on 27 March 2013 providing him with an update regarding the applicant’s membership with FCAN; a letter to Mr Addison on 11 April 2013 in relation to whether the applicant met the requirements for membership with FCAN; statements made in a meeting with Mr Addison on 16 April 2013; and statements made in a meeting with Mr Addison and Mr Snudden on 18 April 2013.

296    The meeting of 22 March 2013, referred to above at [98], between the applicant and Mr Addison, included statements which appear to be no more than a request for assistance by the applicant from Mr Addison. The applicant sought that Mr Addison seek further clarification of the situation from FCAN. That is not a complaint within the scope of the provision.

297    The email of 27 March 2013, referred to above at [101], from the applicant to Mr Addison appears to be an update of his position with FCAN, and a request that there be confirmation of proof of enrolment with FCAN, and copies of FCAN membership requirements and draft proposal for FCAN. The email does not contain a complaint against Mr Addison or Anglicare.

298    The email of 11 April 2013, which is recited in full above at [107], was in response to the letter of 10 April 2013. It provides an explanation of why the applicant said he then satisfied the requirements for the position. That that is contrary to the respondents’ position, does not make it a complaint.

299    In the meeting with Mr Addison on 16 April 2013, referred to above at [111], the applicant took issue with the respondents’ interpretation of the Funding Agreement and FCSP Guidelines. On 18 April 2013, which was the meeting attended by Mr Snudden, a representative from SureWay Employment and Training, various solutions proposed by the applicant for resolution of his predicament were discussed. On neither 16 April 2013 nor 18 April 2013 does it appear that the applicant made any complaints within the meaning of the provision. The notes that the applicant said he provided to Mr Addison on 18 April 2013 reflect that a number of requests were made, rather than complaints. I note that Mr Addison did follow up, as requested, with Mr Butler.

300    The evidence generally refers to the applicant looking for loopholes around what the respondents said were the legal requirements for the position. He did not agree with the respondents’ interpretation, but these were not put as complaints against Mr Addison as such. The correspondence reflects that the applicant was not expressing a grievance or complaint, but was attempting to find a pathway to resolve the situation. The tenor of the documents created at the time, including by the applicant, are in that vein.

301    Even accepting, for the purposes of argument only, that the matters referred to at [295] did amount to complaints, the submission is flawed.

302    The applicant’s submissions are circular: his case is that the fact he complained gave rise to the qualifications of his position being raised. He contends the qualifications were raised on 22 March 2013. But the complaints he contended he made are only said to arise because the qualifications were raised. That is the topic of applicant’s complaints.

303    It follows that each of the purported adverse actions said to flow from the qualifications having been raised because of the complaint, cannot be established.

Conclusion in relation to workplace rights

304    As explained above at [212]-[227], there is evidence that the applicant had mental health issues, and that Mr Addison was aware of that, at least to some extent. I will address this further when considering each of the alleged adverse actions. That said, the applicant has not established that he was discriminated against by comparison to other employees, based on his mental disability.

305    For the reasons given above, the applicant has not established any of the other alleged workplace rights: that is, that he exercised any workplace rights in relation to a complaint, membership of FCAN, or consultation under his Enterprise Agreement.

306    Nonetheless, I propose to consider whether the alleged adverse actions have been established.

Adverse actions

307    The applicant’s claims are summarised above at [20]-[25]. As previously explained, adverse action is defined in s 342 of the FW Act.

308    As will be plain from the discussion below, even if there were adverse actions as alleged, I am satisfied that the respondents have established that they were not for any unlawful reason.

309    It is important to understand the import of the applicant’s decision as to the manner in which his case is pleaded. The applicant’s termination is not alleged to be an adverse action. That termination was by Mr Vardanega and on his evidence, which I accept occurred, the applicant’s employment was terminated because he did not fulfil the requirements of the position, as he had not completed the FCAN course in November 2012, as he said he would have at the time he was employed. He did not have the qualifications required for a Financial Counsellor employed by Anglicare by the ASIC Class Order [CO 03/1063] or the Funding Agreement. There was no change in the qualifications required for the position. Mr Vardanega gave evidence that the qualifications had not changed, and that he did not know of any purported change of position, as the applicant contended.

310    The applicant’s pleadings do not allege otherwise.

311    The applicant does not accept anything other than he was properly qualified for the position. Nor does he accept anything other than he was employed as a student member of FCAN simpliciter. His case is premised on that basis; he was qualified for the position and therefore these acts must have occurred for these other reasons, mental health, breach of workplace rights and discrimination. The qualifications were raised as a ruse to terminate his employment. However, his termination, which is not an adverse action, was because he was not qualified.

312    In that context, it is difficult to understand how the applicant then frames his case. The adverse actions at their heart are focussed on, or are underpinned by, the assertion that Mr Addison raised the job requirements to seek the applicant’s termination from a position for which he was qualified. However, leaving aside that Mr Addison did not have the authority to change the qualifications required (and did not do so), that is not the basis on which he was terminated. The allegations of, inter alia, harassment and discrimination are all directed to an increase in qualifications, which as explained, was not what occurred. It was alleged that Mr Addison sought to terminate the applicant’s employment by raising his qualifications to avoid the applicant exercising his workplace rights (for example to complain etc), but again, that was not the basis of his termination.

Required qualifications that he was not employed with

313    In relation to this allegation of adverse action the applicant relies on s 342(1), Items 1(b), (c) and (d) of the FW Act. In regard to Items 1(b) and (c), the applicant alleges that Mr Addison injured him in his employment, as he was no longer able to practise as a Financial Counsellor, and that his employment was less secure and his reputation was negatively affected. In respect to Item 1(d), he alleges Mr Addison discriminated against him “by taking actions he would not reasonably take against any employee to breach their Enterprise Agreement with Anglicare and his own responsibility to follow the Anglicare Code of Conduct” and treating “[the applicant] differently to another employee in similar circumstances - Carol Stackpoole: given that two issues [Mr Addison] raised in the funding agreement were: (i) Trained by FCAN - Carol Stackpoole’s training was completed interstate; and (ii) accredited – Carol Stackpoole was accredited for a form of membership just like [the applicant]”. As explained above, the factual premises underlying those assertions have not been established.

314    The respondents accepted changing the qualifications under which the applicant was employed such that he would no longer be qualified to continue in his role may constitute adverse action in that, if substantiated, it would alter or prejudice the applicant in his employment. However, whether that occurred is a matter of fact.

315    As explained previously, the applicant was employed on the basis that he would have completed his FCAN course in November 2012. I do not accept his submission that he was simply employed as a student working towards accreditation.

316    For the reasons explained above at [179], there was no relevant change in the qualifications with which he was employed which led to him being no longer able to fulfil the role he held. It is unnecessary to repeat those reasons here. I add the following.

317    Mr Vardanega gave evidence there was no change in the requirements as advertised. As he explained, the selection panel employed the applicant knowing that he did not have full accreditation membership with FCAN but on the basis that he had substantially completed the training, and would, by the time he commenced, meet the requirements of the ASIC Class Order [CO 03/1063]. Mr Crossing made representations to the selection panel that he would have completed his training by November 2012. Mr Vardanega said he did not necessarily see an issue with the approach the selection panel had decided upon.

318    When Mr Vardanega was asked whether he was convinced that the applicant was employed as a student in training working towards accreditation he replied:

What I was convinced of was that the selection panel had relied upon your representations that you would have substantially completed your training, i.e., by November 2019 before commencing employment with us in January, and then what I also understand was that you did not complete your training in November 2019 and, in fact, you brought to our attention only, I think, in February or in March 2020 that you had, in fact, failed that course; therefore, for that period of time from at least from December 2019 you knew that the representations that you had made to the selection panel had been false.

319    As noted above, Mr Vardanega’s evidence was that he explained to the applicant that it was not the accreditation that was in issue, but failing to have the qualification, which he held himself out to have. As previously explained, I accept that evidence.

320    That Mr Addison may have inaptly referred to full accreditation at times, does not alter that. Nor does Mr Addison’s evidence that a student could not hold the position and so in that sense he raised the qualifications. It is plain, as accepted by the applicant, that Mr Addison understood full accreditation to mean having completed a course of study. Any looseness of the use of the terms describing accreditation which might have been used, did not have the effect of raising the qualifications.

321    Similarly, the applicant’s submission that the problem was that accreditation requires a period of 12 months’ supervision, which he could not complete, does not assist him. For example, the applicant submitted that in his email of 11 April 2013 “I clearly indicated the major issue was the completion of the 12 month’s supervision period”. However, in the email, which is recited above at [107], he stated that to gain accreditation would take a year’s supervision “after a student had passed every element of the FCAN course” (emphasis added). Even if there was some confusion or misunderstanding of any requirement of supervision, even on the applicant’s case, it did not apply until after the relevant qualification or course of study had been completed. The applicant had not completed the underlying qualification. To continue to suggest that the supervision requirement was the issue, is incorrect. The email from Mr Butler of 22 April 2013 to Anglicare, recited above at [118], also made clear that from FCAN’s perspective, a person who had not completed the relevant coursework could not give financial advice under any circumstances.

322    That the applicant understood that the issue was his failure to have completed a course of study is reflected in his note to Mr Addison dated 16 April 2013 in which, included in the various options he was putting forward (apart from legal proceedings and complaints to various bodies), he suggested organising a “[s]hort training session as offered in Northern Area of NSW to get enough qualifications to practice at least to talk to these people”. I note also in this context that the applicant’s evidence that he was accredited during his time with Wesley Mission is based on him having done a course.

323    I note in this context that when Mr Addison was asked about full accreditation being a change from the advertisement, he responded:

Again, I would suggest that you’re talking about two different things. You’re talking – we were a moment ago talking about accreditation. Now you’re talking about qualification. And I would draw your attention to the first paragraph in the job ad, which says successful applicant will be suitably qualified with financial counselling or other relevant tertiary qualifications. I think we have to be careful with the distinction.

324    Although Mr Crossing said in response he was not asking that question, it reflects that the questions asked and the focus by the applicant, are artificial. He did not want a response in respect to an aspect of the advertisement adverse to his case. As previously explained, the applicant’s focus at the time of the events and during the hearing distracted from the real issue.

325    Regardless, and accepting the issues around the description as to accreditation, that does not overcome the applicant’s problem of not having the qualifications, referred to in the first paragraph of the job advertisement. He did not complete the course in November 2012 as he had indicated he would, or at any time before he began employment. The absence of qualifications as a result, was the matter of concern for Anglicare.

326    Contrary to the applicant’s repeated assertions, he was not qualified for the position when he commenced employment with Anglicare. His claim is based on a flawed premise. The only reason he was working was because Anglicare were unaware that he had not obtained the qualifications, having failed his assessment.

327    At the time Anglicare made requests of him about his qualifications the applicant was unqualified to fulfil the position by reason of him failing to complete the course. Only completing an appropriate course, as he said he would have done by November 2012, could have affected that aspect.

Mislead others

328    The applicant alleges, inter alia, that misleading statements affected his “security, standing, professionalism and reputation in employment”, and that these misleading statements caused him injury by making his position less secure.

329    As pleaded, the applicant alleges that Mr Addison “incorrectly and misleadingly advised Luke Vardanega representing the HR department regarding the details of the dispute regarding qualifications that existed to my [the applicant’s] detriment”. He claims that Mr Addison misled Mr Vardanega by not informing him that he had changed the qualifications for the position. Mr Addison advised Mr Vardanega that because the applicant had failed a subject he was no longer eligible to hold membership of FCAN, which was a condition of his employment.

330    The applicant has not established this claim. I do not accept that Mr Addison misled Mr Vardanega. This claim is based on the assertion that he only needed to be a student member of FCAN simpliciter to qualify for the position and that Mr Addison changed that qualification. For the reasons already given, I do not accept that underlying assertion.

331    It follows from the above, that the issue of qualification for the applicant’s position did not change from when he was engaged. Rather, he did not have the qualifications he held out he did.

332    Further, the applicant’s submission that although the evidence is that Mr Addison did not have the authority to terminate his employment he “passed a series of condemning issues in the form of emails to Mr Vardanega who did have the authority to terminate me [the applicant] … encouraging Mr Vardanega to terminate me”, is plainly inconsistent with the evidence.

333    Nonetheless, Mr Crossing bases his case on the proposition that Mr Addison changed the qualifications necessary for the position of Financial Counsellor, such that he was no longer qualified for the position. For the reasons already given, that is not established. Moreover, contrary to his submission, Mr Addison did not have authority to change the requirements of the position, nor did he purport to. That the applicant stated that Mr Addison was responsible for his recruitment is not evidence that Mr Addison had authority to change the job requirements. Furthermore, Mr Vardanega did not give evidence that Mr Addison had such authority. Rather, consistent with his level of authority, Mr Addison sought advice and assistance from Mr Vardanega. That is why it was Mr Vardanega who made the decision to terminate Mr Crossing’s employment. Mr Vardanega did so on the basis of the applicant’s lack of qualifications, which he was of the view, were required. Mr Crossing’s termination was not on the basis of a change of job description unilaterally made by Mr Addison. Any action taken by Mr Addison was taken on Mr Vardanega’s advice.

334    Moreover, contrary to the applicant’s contention, that Mr Addison provided Mr Vardanega with information from Mr Butler of FCAN, the accrediting body, for the purposes of informing Mr Vardanega about the applicant’s position and to seek his advice, is not misleading. The applicant’s submission that this is misleading is based merely on the fact he disagrees with the position of FCAN, and says he was qualified.

335    There is no evidence to establish that Mr Addison in any way misled Mr Vardanega about the applicant’s position.

336    If anything, Mr Addison gave the applicant significant leeway in the attempt to have him continue in the position. The applicant’s evidence was that, on enrolling in another course, he stated to Mr Addison “I would again start practising as I understood I was eligible,” and Mr Addison briefly permitted him to. To that end, Mr Addison may have misunderstood the position in allowing the applicant to briefly recommence contact with clients, but that does not mean that the applicant’s qualifications were sufficient. To the contrary, on all the evidence, the applicant did not satisfy the requirements, as advertised.

337    I note for completeness that in the ASOC the applicant alleges that Mr Snudden, his support worker who was present at the meeting with Mr Addison on 18 April 2013, was misled. This claim was not referred to by the applicant in his submissions, was not the subject of any evidence (except as a general proposition put to Mr Addison in cross-examination that he had misled Mr Vardanega and his support person, which was denied), and was not advanced in any way. It is difficult to see the basis for it. More importantly, there is no evidential basis established for the proposition that Mr Snudden was in any way misled.

Not abide by the applicant’s safety concerns

338    After informing Mr Addison of his mental health issues, the applicant alleges that Mr Addison “failed to adequately address safety concerns regarding [the applicant's] mental disability and support needs in a situation of employment that he should have been aware required action”. The applicant’s claims include that Mr Addison did not assist him, and passed on information to Mr Vardanega, that he was not qualified. That latter aspect is addressed above.

339    Mr Vardanega gave evidence that Mr Addison was supportive of the applicant in terms of efforts to try and resolve the situation. Mr Vardanega said, to the suggestion that Mr Addison had raised his qualifications:

…that would seem inconsistent with Brads’ attitude to the situation when he engaged with me at the end of March or early April where he did not seem to – other than being personally supportive of you, he did not seem to have a fixed idea as to what a plan might look like towards remedy. That was why he was coming to me for advice, because questions around essential qualifications are commonly referred back into my area for assistance to line areas and, if necessary, then we become the decision-maker in terms of remedies. So it was being addressed as an essential qualifications issue. As I say, I drafted the letter for Brad. Brad appeared to have an open mind about what resolution might look like. I certainly had an open mind at the time about what that resolution might look like. We had bought ourselves some time by ensuring that you didn’t have direct client access. So in that particular case we had taken any question of our compliance with the class order or the Office of Fair Trading funding requirements, we had pushed that to one side, and, as I say…we waited to hear from you.

340    I accept that evidence. So much is apparent from the contemporaneous documents.

341    The applicant’s submission that Mr Addison did not support him, but was determined to terminate his employment, is inconsistent with the evidence. Rather inconsistently, the applicant asserts that Mr Addison did not follow up his requests with organisations to ascertain if the position that Anglicare held was correct. On the other hand, the applicant contends that Mr Addison, acting on Mr Butler’s advice from FCAN, and forwarding that advice to Mr Vardanega, misled others as to the applicant’s position. As stated above at [334], Mr Addison’s actions were not misleading. The respondents were in a “no win” situation. Whatever they did, unless it had the outcome desired by the applicant, is criticised.

342    The applicant placed the onus on Anglicare to come up with a solution to his dilemma. He complains that they did not do as he requested in terms of contacting external agencies. The basis of this purported requirement for them to act as he requested is unclear. Nonetheless, Mr Addison did just that. He contacted FCAN at the applicant’s request, on more than one occasion. This includes on 19 April 2013, after his meeting with the applicant. Mr Addison’s email to FCAN reflects that he requested further information, at the applicant’s request, to find out FCAN’s position. That does not sit with the applicant’s submission that Mr Addison was only concerned with termination and not supporting him. The applicant’s submission entirely ignores that, as it does not suit the narrative of his case. That said, the response having been received by Mr Addison, which the applicant perceives as adverse to him, was forwarded to Mr Vardanega. That is part of the applicant’s claim, that Mr Addison provided misleading information to Mr Vardanega. I note also that the applicant’s claim in this regard and the requests are based on his view that being a student member simpliciter was sufficient.

343    In that context, the applicant’s reliance on Mr Addison’s email to Mr Vardanega on 10 April 2013, which refers, inter alia, to having an advertisement for the position ready, is misplaced. Given the nature of the issue, being the lack of qualifications, there is nothing unusual or remarkable about an organisation planning for an eventuality, if required. However, despite that, after that email, Mr Addison again followed up with Mr Butler on 19 April 2013, at the request of the applicant, seeking Mr Butler’s advice.

344    Moreover, the applicant could have, but did not, put material before Anglicare, if it existed, as to his previous experience in which he now claimed to be accredited. As noted above, the person who the applicant said did the original training was Ms Yule, who on his evidence was involved in the 2012 course. He said she still worked for FCAN.

345    As explained above at [240]-[243], the applicant’s repeated reliance on the position of Ms Stackpoole to somehow illustrate he has been discriminated against, is misplaced.

346    I note that the applicant alleges as an adverse action that Mr Addison held a meeting with him “under threat that [the applicant] hold qualifications” which were not required at the time he was employed by Anglicare. However, the meeting cross-examined about, and to which allegations were directed, was a meeting that the applicant requested with Mr Addison. The applicant also requested to bring a support person to that meeting. These requests were accommodated by Anglicare and Mr Addison. That at the meeting Mr Addison discussed the position the applicant was in, which was contrary to how the applicant perceived it, is not harassment.

347    I appreciate that the applicant takes issue with the email of 15 May 2013 recited above at [120], as somehow reflecting adversely on him. In my view, properly read it does not raise any conduct issue, as contended by the applicant, but recites the situation that occurred. The evidence from Mr Vardanega was that what occurred at the interview was a qualification issue. It is apparent from that email that the issue of concern is his qualifications. Anglicare were not required to accommodate the applicant in the manner he was suggesting, which included giving him 12 months’ leave, and employing someone on a temporary basis for that period to enable him to complete a course. Indeed, given that Mr Crossing had failed the assessment, it may be hardly surprising that Anglicare was not ultimately prepared to accommodate that suggestion. Nonetheless, Anglicare considered it as an option, but Mr Addison did not ultimately recommend it. That he considered it at all is inconsistent with the applicant’s contention as to Mr Addison’s purported attitude to him, being one of seeking his termination and “not caring” whether he was qualified. The applicant was given a significant opportunity to explore and consider other means to overcome his predicament. Contrary to the applicant’s submission, nothing in the email of 15 May 2013 reveals that the respondents were acting in any way unlawfully.

348    The applicant has not established that the respondents failed to take reasonable care for the applicant’s safety concerns. As previously explained, to the contrary, I am satisfied that the evidence is that Mr Addison supported the applicant.

Harassment

349    This claim as pleaded appears to be that between 22 March 2013 and 18 April 2013, Mr Addison harassed the applicant by requiring him to establish qualifications with which he was not employed, misled others (being Mr Vardanega) and failed to abide by safety concerns. The latter two were referred to in the applicant’s ASOC and substantially overlap with the matters discussed above at [328]-[348]. The applicant alleges adverse action of the kind is prohibited under: s 342(1), Item 1(b) of the FW Act, on the basis that Mr Addison injured him in his employment in that the action caused him injury as his position was less secure; s 342(1), Item 1(c) of the FW Act, on the basis he altered the position of the applicant to his prejudice; and s 342(1), Item 1(d) of the FW Act, on the basis that Mr Addison discriminated against the applicant.

350    The respondents contended the alleged action was not adverse action within s 342 of the FW Act because Mr Addison: did not injure the applicant in his employment; did not alter his position to his prejudice; and did not discriminate against him. To the extent the actions are determined to be adverse action, which is denied, the respondents also deny that any actions were taken because the applicant had workplace rights, or exercised workplace rights, or for a discriminatory reason.

351    A number of these assertions are addressed elsewhere. I am satisfied Mr Addison did not harass the applicant. The submission proceeds on some flawed factual bases, including that the qualifications for the position had been raised by Mr Addison. Indeed, the applicant’s submission appears to proceed on the basis that Mr Addison and Anglicare ought to have just accepted his explanations. Moreover, the suggestion that Mr Addison somehow harassed the applicant by providing information from FCAN to Mr Vardanega, is without foundation. The conduct undertaken by Mr Addison, and as reflected by the chronology above, does not amount to harassment. Rather, as noted above at [178], Mr Addison gave considerable latitude to the applicant. In any event, as explained previously, I am satisfied that none of the conduct by Mr Addison was done for any of the alleged unlawful reasons.

Show cause letter

352    This allegation relates to the letter recited at [104] above, given by Mr Addison to the applicant on 10 April 2013, which the applicant describes as a show cause letter. It will be recalled that this letter was drafted by Mr Vardanega, for Mr Addison to provide to the applicant. As can be seen from the timing of this letter, there were discussions leading up to this. The applicant had been given opportunities to address the situation, or to come up with a pathway to resolve the predicament that had arisen as a result of his failure to complete the course. After this letter, the communications continued, with the applicant replying to the letter, at length, in an email and by asking for a meeting with Mr Addison, at which a support person could attend.

353    It is the applicant who describes this letter as a show cause letter. The respondents accepted that a show cause letter may constitute an adverse action (the only one of the allegations that could), but contended in the circumstances of this case it did not.

354    The applicant relies on the observations of Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; (2010) 186 FCR 22 at [99]–[101]:

[99]    To paraphrase comments of McHugh J in Fingleton v R [2005] HCA 34; (2005) 227 CLR 166 at 201-202 [89], the injury or detriment to which Ms Jones was subjected in this respect was the requirement that she respond to a “show cause” letter that might lead to the loss of her position if her answer was not regarded as acceptable. That this was a potential outcome was clear from the terms of the letter.

[100]    Further, in my view an analogy can be drawn between a show cause letter such as the letter of 29 October 2009 to Ms Jones, and a written warning of a serious or major breach within the meaning of the employer’s disciplinary procedures. Both have the effect of making the employee’s continuing employment less secure, and accordingly altering the employee’s position to his or her prejudice (Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131 at [95], Finance Sector Union of Australia v Australia & New Zealand Banking Group Limited [2002] FCA 631 at [137]).

[101]    The terms of the show cause letter, while endeavouring to provide Ms Jones with opportunities to respond, nonetheless objectively constitute a threat to dismiss her should her answers be unsatisfactory to the QTAC Board. In my view this amounts to adverse action for the purposes of section 342 of the Act.

355    The applicant alleges adverse action of this kind is prohibited under section 342(1), Item 1(c) of the FW Act, on the basis that Anglicare injured the applicant in his employment as his position was less secure.

356    On the other hand, the respondents refer to Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251 at [48], where Tracey J observed:

…the question of whether the institution of an enquiry, the issuing of a show cause notice or the laying of disciplinary charges constitute adverse action will depend on the particular circumstances of a given case. The variables may include the rules under which the action is taken by the employer, the practical impact of the taking of the administrative action on the employee and the bona fides of the employer in instigating the administrative processes. The greater the impact on the employee, the more likely it is that the employer's action will be treated as "adverse action" for the purposes of the Act.

I note that although this decision was overturned by the Full Court: Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212, this decision was reaffirmed by the High Court: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500.

357    That must be correct. Whether the letter amounts to an adverse action is case specific.

358    The respondents accept that the applicant’s response to the letter may lead to the loss of his position, but contend that the letter was provided to him to afford him an opportunity to provide an explanation regarding his eligibility. It had been approximately two months since the applicant had raised with Mr Addison that he had not completed the course, with the consequent issue in respect to his student membership with FCAN. In the particular circumstances, I do not consider it to be a show cause letter in the traditional sense.

359    Regardless, contrary to the applicant’s contention, the evidence establishes that this letter was not sent for any unlawful reason. The only concern of the respondents were the qualifications of the applicant, to hold the position. This is in the context, as described above, that he was employed on the understanding that he would finish the FCAN course in November 2012, with the accreditation to follow accordingly.

Meeting of 18 April 2013

360    The applicant alleges that the meeting with Mr Addison and his support worker, Mr Snudden, on 18 April 2013 constituted adverse action. He contends Mr Addison took adverse action by holding a meeting with him and his support worker in which he was required to show cause how he was fully accredited. He alleges adverse action of the kind prohibited under: s 342(1), Item 1(b) of the FW Act, on the basis that Mr Addison injured the applicant in his employment as his position was less secure; and s 342(1), Item 1(c) of the FW Act, on the basis Mr Addison altered the position of the applicant to his prejudice because he was “one step closer to termination” and his position was less secure.

361    As will be recalled, given the timing of this meeting, the applicant had received the letter of 10 April 2013, and had responded to it in writing on 11 April 2013. This was a meeting specifically requested by the applicant in that letter of 11 April 2013:

[…]

My request here is that you do consider my past disability and allow a support person from Sureway Services to be involved with my work situation in an effort to avoid problems. As you indicated this area may be a problem it would be good to start here. I believe that they may offer financial and other assistance in ensuring this work situation succeeds.

I have in the past suffered for not asking for help. Currently I am dealing with Paul the Manager of Sureway Employment who is handling my case and would welcome meeting together at your convenience to discuss how to proceed. Paul assures me he knows you and will be endeavouring to make contact.

If there are specific issues that affect my employment left unresolved I am happy to provide clarification as there are 14 days to clear up confusion and personal meeting(s) may achieve great success and I will be available for such meeting(s) at your convenience. This may include how we meet our funding obligations to Department of Fair Trading and possible impacts to the service of this issue.

Even if this letter clears up the FCAN confusion I believe the involvement of a support specialist may reap rewards and I welcome it. They may be able to offer resources to help the accreditation process occur faster and my ability to provide a better service. My intention is to work in a professional open manner and my desire is to offer all I have in an effort to achieve the desired objectives of Anglicare and I will work with all parties to this end.

[…]

362    Contrary to the applicant’s contentions, this was not a meeting which was to be a step closer to his termination, or in any way prejudiced the position he was already in.

363    At the meeting there was discussion as to the applicant’s position, including the applicant asking Mr Snudden if he had any solutions to his issue with FCAN. Mr Snudden said that he had looked into possible solutions but had not found any given the applicant did not hold the qualifications required to be a Financial Counsellor.

364    Mr Addison’s email to Mr Vardanega reporting the outcome of the meeting is recited at [106] above. The applicant simply did not then, and does not now accept, that he was not qualified for the position. However, Mr Addison, putting the position as to his belief of the requirements for the position based on Anglicare’s status, with which the applicant did not agree, does not make the meeting one designed to injure the applicant’s position, or make it less secure.

Conclusion on adverse actions

365    For the reasons above, the applicant has not established the adverse actions he alleges. That said, as previously explained, if established, I am satisfied for the reasons already given, that the respondents have established that they did not occur for any of the alleged unlawful reasons. That is, if it arises, the respondents have discharged the onus in s 361.

Conclusion

366    The applicant has not established any of the claims brought against the respondents. Accordingly, the application is dismissed and the applicant is not entitled to the relief sought.

Associate:

Dated:    14 September 2021