General protections cases; an example

The following is an extract from a recent judgement of the Federal Court of Australia in a classic general protections claim involving allegations inter alia that an employee had suffered adverse action in various ways because he had various protected attributes including workplace rights.

The decision is long and learned. I have endeavoured to edit it to render it briefer by removing a few passages of it and I hope I have done no disservice to the case of either party. The employer won.

“Relevant legal principles

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

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

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

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

(a)    because the other person:

(i)    has a workplace right; or

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

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

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

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

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

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

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

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

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

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

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

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

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

13    Section 346 of the FW Act provides:

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

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

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

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

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

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

A person engages in industrial activity if the person:

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

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

(1)    If:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

………………………………………………………………

(Her Honour the deals with various allegations, evidence and witnesses and continues

The applicant’s claims

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

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

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

Workplace rights

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

Mental disability

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

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

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

351 Discrimination

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

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

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

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

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

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

(i)    in good faith; and

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

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

[…]

(ab)    the Disability Discrimination Act 1992;

[…]

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

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

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

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

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

  • The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
  • That question is to be answered having regard to all the facts established in the proceeding.
  • The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
  • It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
  • Even if the decision-maker gives evidence that he or she acted solely for non proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
  • If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and includes:

(d)    a branch of such an association; and

(e)    an organisation; and

(f)    a branch of an organisation.

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

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

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

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

  • it now includes informal associations of employees and/or independent contractors; and
  • the requisite purpose of protecting and promoting their interests does not need to be a principal purpose of the association.

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

[…]

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

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

Illustrative example

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

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

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

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

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

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

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

The right to consultation under the Enterprise Agreement

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

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

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

37 – INTRODUCTION OF CHANGE

37.1 Employer’s duty to notify

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

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

37.2 Employer’s duty to discuss change

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

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

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

258    Clause 39 relates to redundancy and relevantly states:

  1. REDUNDANCY

39.2 Discussions before termination

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

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

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

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

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

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

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

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

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

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

266    Mr Vardanega explained:

  1. Mr Vardanega, I put it to you that you – your organisation no longer required a student working in the position, and that the position as advertised, my position, became redundant because there was, effectively, nothing left for me to do as a student; would you agree with that?—
  2. No, I – I wouldn’t agree with that. The situation involving your employment started with the representations you made to the selection panel, and you presented to the selection panel that you were eligible for employment ….. but you actually arrived to start work with us lacking those attributes, like, lacking the essential – you know, the basic qualifications, as it were, or the basic eligibility criteria for employment as a financial counsellor. So then, as the process continued, we engaged with you to try and see whether we could identify a pathway for you to meet those criteria – – –

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The right to make a complaint

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

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

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

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

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

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

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

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

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

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

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

(f)    a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion in relation to workplace rights

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

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

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

Adverse actions

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

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

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

310    The applicant’s pleadings do not allege otherwise.

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

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

Required qualifications that he was not employed with

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mislead others

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

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

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

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

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

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

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

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

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

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

Not abide by the applicant’s safety concerns

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

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

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

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

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

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

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

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

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

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

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

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

Harassment

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

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

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

Show cause letter

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

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

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

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

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

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

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

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

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

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

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

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

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

Meeting of 18 April 2013

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

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

[…]

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

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

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

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

[…]

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

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

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

Conclusion on adverse actions

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

Conclusion

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

 

Crossing v Anglicare NSW South, NSW West & ACT [2021] FCA 1112 per Abraham J delivered 14 Sep 2021