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

FEDERAL COURT OF AUSTRALIA
Crossing v Anglicare NSW South, NSW West & ACT [2021] FCA 1112

File number: NSD 452 of 2019

Judgment of: ABRAHAM J

Date of judgment: 14 September 2021

Catchwords:
INDUSTRIAL LAW – adverse action – where applicant failed to establish any alleged adverse actions – where even if established, the adverse actions were not taken for any unlawful reason – where applicant employed as a Financial Counsellor on basis that he would be “imminently qualified” for the position – where applicant failed to hold required qualifications for the position – application dismissed

INDUSTRIAL LAW – whether applicant exercised workplace rights under s 341(1) of the Fair Work Act 2009 (Cth) (FW Act) – whether adverse action taken against applicant because he made a complaint in relation to his employment – whether applicant made a “complaint” within meaning of s 341(1)(c) of the FW Act – Shea v TRUenergyServices Pty Ltd (No 6) [2014] FCA 271; (2014) 314 ALR 346 considered – no complaint found – whether adverse action taken against applicant because he held certain rights to consultation under the applicable enterprise agreement – whether applicant entitled to rely on those rights – applicant not entitled to rely on those rights – whether adverse action taken against applicant contrary to s 346 of the FW Act because he had a right not to be, or not be, a member of an industrial association –whether the Financial Counsellor’s Association of New South Wales (FCAN) is an “industrial association” within meaning of s 12 of the FW Act – FCAN not an industrial association – whether adverse action taken against applicant because he has a mental disability, contrary to s 351 of FW Act – no adverse action established – application dismissed

Legislation:
Corporations Act 2001 (Cth) s 911A(1)

Disability Discrimination Act 1992 (Cth)

Fair Work Act 2009 (Cth) ss 6(2), 12, 12(a), 12(b), 12(c), 50, 340, 340(1), 341(1), 341(1)(a), 341(1)(b), 341(1)(c), 341(1)(c)(ii), 342, 342(1), 342(1)1(b), 342(1)1(c), 342(1)1(d), 342(2), 346, 346(1)(a), 347, 347(a), 351, 351(3), 360, 361

Independent Contractors Act 2006 (Cth)

Registered Organisations Act 2009 (Cth)

Australian Securities and Investment Commission Corporations Act 2001 – Paragraph 991A(2)(l) – Exemption (ASIC Class Order [03/1063])

ASIC Corporations (Financial Counselling Agencies) Instrument 2017/792 s 5(2)

Cases cited:
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83; (2018) 260 FCR 564

Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 25

Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212

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

Construction Forestry Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (No 2) [2015] FCA 265

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273

Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2014) AILR 101-659

Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462; (2014) 232 FCR 560

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400

Hill v Compass Ten Pty Ltd [2012] FCA 761; (2012) 205 FCR 94

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; (2010) 186 FCR 22

Maxutova v Nunn Media Pty Ltd [2017] FCCA 2336

Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754

National Tertiary Education Union v University of Sydney [2020] FCA 1709; (2020) 302 IR 272

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1

PIA Mortgage Services Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225

RailPro Services Pty Ltd v Flavel [2015] FCA 504; (2015) 242 FCR 424

Sayedv Construction, Forestry, Mining and Energy Union [2015] FCA 27; (2017) 327 ALR 460

Salama v Sydney Trains [2021] FCA 251

Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; (2014) 242 IR 159

Shea v TRUenergyServices Pty Ltd (No 6) [2014] FCA 271; (2014) 314 ALR 346

Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547

Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 153; (2017) 275 IR 285

Wong v National Australia Bank [2021] FCA 671

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 366

Date of last submission/s: 11 March 2021

Date(s) of hearing: 28—30 September 2020, 1 October 2020,
23—24 November 2020, 30 November 2020 and 2 December 2020

Counsel for the Applicant: The applicant appeared in person.

Solicitor for the Respondents: Mr P. M. Zielinski of Minter Ellison

ORDERS

NSD 452 of 2019

BETWEEN:
RICHARD DONALD CROSSING

Applicant

AND:
ANGLICARE NSW SOUTH, NSW WEST & ACT

First Respondent

BRAD ADDISON

Second Respondent

ORDER MADE BY:

ABRAHAM J

DATE OF ORDER:

14 SEPTEMBER 2021

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:

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.
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.
The applicant was unrepresented in these proceedings.
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.
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.
For the reasons given below, the application is dismissed.
Relevant legal principles
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).
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.
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).
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.
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.
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].
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).
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…
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.
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.
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].
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.
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
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).
It is alleged those adverse actions were taken because Mr Crossing had exercised four workplace rights.
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.

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.
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.
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.
It is claimed that Mr Addison had taken no adverse action prior to 22 March 2013.
Factual background
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.
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…
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”.
FCAN is the peak membership body that represents and supports financial counsellors in New South Wales.
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
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.
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.
Mr Crossing gave evidence and was cross-examined.
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.
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
Before discussing the evidence of events it is appropriate to record my findings in relation to each of the three witnesses who gave evidence.
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.
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
I find that the applicant is a very poor historian of events.
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.
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.
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.
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].
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.
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.
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.
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
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.
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”.
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.
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.
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.
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.
Other examples of the applicant’s submissions are addressed below.
Mr Vardanega
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.
I do not accept Mr Crossing’s submission to the contrary.
Mr Crossing’s purported examples of inconsistencies tend to mischaracterise the issues.
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.
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
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.

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.
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.
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).
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.
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.
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.
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.
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.
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
Turning to the chronology of events.
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.
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”.
On 20 November 2012, Mr Crossing applied for the position. Mr Crossing's application included a cover letter, resume, application form, and statutory declaration.
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.
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
2002-03TAFE Certificate Level II & Level III Information Technology
1998-1993 Bachelor of Information Technology (Information Systems)

Charles Sturt University – Riverina, Wagga Wagga NSW
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.
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
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?”
Pausing there, the applicant accepted in his written submission that his evidence was that he held no official qualifications in financial counselling.
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.
The applicant’s issues with FCAN and his failure of the assessment were unknown by Anglicare at this time in 2012.
Mr Crossing was offered the position in 2012, although there is no evidence as to the date when this occurred.
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.
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].
Mr Crossing commenced employment with Anglicare on 7 January 2013.
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.
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
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.
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
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.
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
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
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.

It is unclear on the evidence if this letter was sent.
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.
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.
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.
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
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.
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 7^th 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 13^th 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.
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 11^thFebruary, 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 9^th 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.
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
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
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.
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
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.
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

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].
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.
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.
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.
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.
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.
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.
Even accepting, for the purposes of argument only, that the matters referred to at [295] did amount to complaints, the submission is flawed.
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.
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
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.
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.
Nonetheless, I propose to consider whether the alleged adverse actions have been established.
Adverse actions
The applicant’s claims are summarised above at [20]-[25]. As previously explained, adverse action is defined in s 342 of the FW Act.
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.
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.
The applicant’s pleadings do not allege otherwise.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
There is no evidence to establish that Mr Addison in any way misled Mr Vardanega about the applicant’s position.
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.
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
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.

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.
I accept that evidence. So much is apparent from the contemporaneous documents.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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.
That must be correct. Whether the letter amounts to an adverse action is case specific.
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.
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
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.
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.
[…]
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.
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.
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
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
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.

I certify that the preceding three hundred and sixty-six (366) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.
Associate:
Dated: 14 September 2021

File number:	NSD 452 of 2019
Judgment of:	ABRAHAM J
Date of judgment:	14 September 2021
Catchwords:	INDUSTRIAL LAW – adverse action – where applicant failed to establish any alleged adverse actions – where even if established, the adverse actions were not taken for any unlawful reason – where applicant employed as a Financial Counsellor on basis that he would be “imminently qualified” for the position – where applicant failed to hold required qualifications for the position – application dismissed INDUSTRIAL LAW – whether applicant exercised workplace rights under s 341(1) of the Fair Work Act 2009 (Cth) (FW Act) – whether adverse action taken against applicant because he made a complaint in relation to his employment – whether applicant made a “complaint” within meaning of s 341(1)(c) of the FW Act – Shea v TRUenergyServices Pty Ltd (No 6) [2014] FCA 271; (2014) 314 ALR 346 considered – no complaint found – whether adverse action taken against applicant because he held certain rights to consultation under the applicable enterprise agreement – whether applicant entitled to rely on those rights – applicant not entitled to rely on those rights – whether adverse action taken against applicant contrary to s 346 of the FW Act because he had a right not to be, or not be, a member of an industrial association –whether the Financial Counsellor’s Association of New South Wales (FCAN) is an “industrial association” within meaning of s 12 of the FW Act – FCAN not an industrial association – whether adverse action taken against applicant because he has a mental disability, contrary to s 351 of FW Act – no adverse action established – application dismissed
Legislation:	Corporations Act 2001 (Cth) s 911A(1) Disability Discrimination Act 1992 (Cth) Fair Work Act 2009 (Cth) ss 6(2), 12, 12(a), 12(b), 12(c), 50, 340, 340(1), 341(1), 341(1)(a), 341(1)(b), 341(1)(c), 341(1)(c)(ii), 342, 342(1), 342(1)1(b), 342(1)1(c), 342(1)1(d), 342(2), 346, 346(1)(a), 347, 347(a), 351, 351(3), 360, 361 Independent Contractors Act 2006 (Cth) Registered Organisations Act 2009 (Cth) Australian Securities and Investment Commission Corporations Act 2001 – Paragraph 991A(2)(l) – Exemption (ASIC Class Order [03/1063]) ASIC Corporations (Financial Counselling Agencies) Instrument 2017/792 s 5(2)
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83; (2018) 260 FCR 564 Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 25 Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 Construction Forestry Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (No 2) [2015] FCA 265 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2014) AILR 101-659 Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462; (2014) 232 FCR 560 Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 Hill v Compass Ten Pty Ltd [2012] FCA 761; (2012) 205 FCR 94 Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; (2010) 186 FCR 22 Maxutova v Nunn Media Pty Ltd [2017] FCCA 2336 Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754 National Tertiary Education Union v University of Sydney [2020] FCA 1709; (2020) 302 IR 272 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 PIA Mortgage Services Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225 RailPro Services Pty Ltd v Flavel [2015] FCA 504; (2015) 242 FCR 424 Sayedv Construction, Forestry, Mining and Energy Union [2015] FCA 27; (2017) 327 ALR 460 Salama v Sydney Trains [2021] FCA 251 Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; (2014) 242 IR 159 Shea v TRUenergyServices Pty Ltd (No 6) [2014] FCA 271; (2014) 314 ALR 346 Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547 Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 153; (2017) 275 IR 285 Wong v National Australia Bank [2021] FCA 671
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	366
Date of last submission/s:	11 March 2021
Date(s) of hearing:	28—30 September 2020, 1 October 2020, 23—24 November 2020, 30 November 2020 and 2 December 2020
Counsel for the Applicant:	The applicant appeared in person.
Solicitor for the Respondents:	Mr P. M. Zielinski of Minter Ellison

ORDER MADE BY:	ABRAHAM J
DATE OF ORDER:	14 SEPTEMBER 2021