Allan Robert Ricci v Serco Citizen Services Pty Ltd [2024] FWC 540

1 Fair Work Act 2009 s.365—General protections Allan Robert Ricci v Serco Citizen Services Pty Ltd (C2023/6951) DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 14 MARCH 2024 Application to deal with contraventions involving dismissal [1] Serco Citizen Services Pty Ltd (Serco) assists a range of governmental departments to deliver services by providing case management, programs administration, contact centres and back and middle office services. Serco employed Mr Allan Ricci as a customer contact officer in connection with its contract with the Australian Taxation Office (ATO). The employment commenced on 19 July 2023.1 The terms of employment specified the employment to be casual employment and the location of the employment as “VIC Box Hill, Whitehorse Rd (ATO)”.2 However, the position along with others, was advertised as a hybrid working opportunity with “1 in-office day required per fortnight”.3 [2] Ms Sophie Wickes is currently employed by Serco on secondment in the position of Team Leader – Serco ATO Contract.4 She was Mr Ricci’s team leader during his employment. On 26 October 2023, Ms Wickes received a text message from Mr Ricci as follows: “I have terminated my employment and I will be commencing action at Fair Work for constructive dismissal.”5 [3] Mr Ricci had earlier that day communicated his intention to terminate his employment to a Serco team leader, who Mr Ricci identified as “Brad Moritz”. [4] Mr Ricci applied under s 365 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute, alleging he was dismissed in contravention of the general protections provisions of the Act. [5] Although Mr Ricci acknowledges he resigned from his employment on 26 October 2023, he claims he was forced to resign because of conduct, or a course of conduct, engaged in by Serco. Mr Ricci contends that the conduct, or a course of conduct, that forced him to resign was the removal of, or the inability to provide him with, reliable remote access enabling him to log on to the system so that he could work from home.6 Mr Ricci also relies on Serco’s threat not to pay him for a period during which he could not log on and a failure on Serco’s part to understand its policies, which together resulted in a breakdown of the relationship of trust.7 [2024] FWC 540 DECISION -- 1 of 5 -- [2024] FWC 540 2 [6] For the reasons which follow, Mr Ricci’s contention that he was forced to resign because of conduct, or a course of conduct, engaged in by Serco is untenable. As Mr Ricci resigned from his employment, he was not dismissed within the meaning of s 386 of the Act. As Mr Ricci was not dismissed, he cannot bring an application under s 365. Consequently, the application in C2023/6951 will be dismissed. [7] As to some preliminary factual matters, I accept: • Mr Ricci applied for the position because of its predominately work from home element and that the position was, as advertised, one which required office attendance only once every fortnight; • Mr Ricci wanted employment in the position because it allowed him to better manage an injury, which required frequent exercise; • the injury was not one which affected his capacity to perform the role as advertised; • on 5 September 2023, Mr Ricci signed an ATO work from home declaration acknowledging, inter alia, that he: o will be able to return to the office within one hour (if the work from home solution does not work as expected); o will return to the office if required; o understood that working from home was a temporary arrangement, and • Mr Ricci worked from home during his employment largely in a manner consistent with the nature of the position as advertised. [8] The remainder of relevant factual matters are largely uncontroversial. Between 17 October 2023 and 25 October 2023, Mr Ricci was unable for lengthy periods to log on to the system to perform work. Mr Ricci contacted his team leader and others to have the problems he was experiencing rectified. Mr Ricci expressed his concern about his capacity to effectively work from home when the system was so erratic. [9] On 20 October 2023, Mr Ricci was contacted by Mr Andrew Wiltshire, an operations manager employed by Serco. Ms Wickes was also on the call. During the conversation, Mr Ricci attempted to explain the difficulties he had experienced with logging on to the system and was told he should return to the office. When Mr Ricci asked Mr Wiltshire about payment for the period Mr Ricci was unable to log on, Mr Wiltshire told him that he would not be paid.8 [10] On 25 October 2023, Serco had received reports of system outages for multiple systems. The system issues began around 2:50 pm. Mr David Morrissey, another Serco Operations Manager, sent a site wide email at 3:03 pm advising that Serco was “aware of the system issues affecting multiple systems”.9 On that day, Mr Ricci commenced working from home at 11:15 am and lost remote access at 2:50 pm.10 Ms Wickes contacted Mr Ricci at around 3:06 pm to relay the information communicated by Mr Morrissey.11 Ms Wickes also directed that Mr Ricci return to site if the problems persisted.12 Persist they did, and Mr Ricci returned to site as directed.13 -- 2 of 5 -- [2024] FWC 540 3 [11] Ms Wickes was on annual leave on 26 October 2023.14 Mr Ricci tried to log in at the start of his shift that day, but he had no access.15 At 11.18 am, Mr Ricci sent a text message to Ms Wickes as follows: “Hi Sophie, I still can’t log in – same error as yesterday. Please email RDA and find out what the issue is.” 16 [12] As Ms Wickes was on leave, she called the Serco care phone line and spoke to another team leader, Mr Danny Anastasios, advising him that Mr Ricci was having system issues and for Mr Anastasios to advise Mr Ricci to return to site.17 As Mr Ricci did not receive a response from Ms Wickes “for 5 minutes”, he called Serco’s late line. The person who answered the late line, who Mr Ricci identified as “Brad Moritz”,18 said that Mr Ricci was to return to site.19 After a brief discussion and Mr Moritz’s iteration of the message from management that Mr Ricci was to return to site, Mr Ricci advised Mr Moritz that he (Mr Ricci) would be terminating his employment.20 It is now apparent that Mr Moritz was in fact Mr Anastasios. Shortly thereafter, the earlier mentioned text message from Mr Ricci to Ms Wickes was sent.21 Ms Wickes advised Mr Ricci that she would process his exit the next day.22 Mr Ricci was paid for the periods he was unable to log on.23 [13] The word “dismissed” when used in the Act, unless the context otherwise requires, has the meaning ascribed to it by s 386.24 Section 386 relevantly provides: “386 Meaning of dismissed (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. . . .” [14] Section 386(1)(b) of the Act appears intended to capture or reflect the common law position sometimes described as constructive dismissal – where the employee is in effect instructed to resign by the employer in the face of a threatened or impending dismissal or where the employee resigns in response to conduct by the employer which gives them no reasonable choice but to resign – the acceptance of repudiatory conduct in which the employer engaged.25 [15] The reference to “conduct” in s 386(1)(b) of the Act “includes an omission”.26 [16] The conduct about which Mr Ricci complains and says “forced him to resign” was hardly of sufficient gravity to force the resignation. Connectivity issues in an era of working from home and flexible working arrangements are prevalent and doubtless frustrating. That Mr Ricci experienced these issues and that they were unable to be resolved quickly is unfortunate, but on no account did it leave him with no reasonable choice but to resign. Mr Ricci had alerted Serco to the problem, and at the time of his resignation the connectivity problem was not -- 3 of 5 -- [2024] FWC 540 4 isolated to him. As a short-term fix, he was required to attend the office, consistent with the terms of the work from home arrangements, which he acknowledged. [17] As to the threat of non-payment, whilst serious, and likely unlawful, reliance on the threat is disingenuous. First, because the threat was made 6 days earlier and Mr Ricci continued working or attempting to work shifts thereafter – specifically, on both 25 and 26 October 2023. Second, he had the capacity to dispute any decision of Serco not to pay him through internal dispute resolution processes. This is true also of the direction that he attend the office on 26 October 2023 after he experienced connectivity issues.27 That he did not so engage because he felt “like Serco were [not] going to engage in a fair way”28 is not based in evidence and does not deprive the dispute resolution process available of its standing as a reasonable choice or alternative to resigning. In truth, Mr Ricci became frustrated by the connectivity issues and the requirement that he attend the site when the connectivity issues were not able to be resolved. But this is the basis on which he was engaged. Mr Ricci acknowledged that if the work from home solution does not work as expected (which well describes continuing unresolved connectivity issues), he was able to return to the office within one hour, and he would do so if required. The direction given by Serco to Mr Ricci on 26 October 2023 meant that Mr Ricci was so required. [18] Mr Ricci was not forced to resign because of any conduct, or a course of conduct, engaged in by Serco. Mr Ricci resigned in frustration because the connectivity issues meant that he was being directed to do that which he agreed he would do, but now did not wish to do. He had other reasonable choices. Resignation was one choice, but it was not forced on him by Serco’s conduct. [19] Mr Ricci was not dismissed within the meaning of s 386 of the Act. Order 1. I order that that application is C2023/6951 made by Allan Ricci be dismissed. DEPUTY PRESIDENT Appearances: A Ricci self-represented L Tran for the respondent -- 4 of 5 -- [2024] FWC 540 5 Hearing details: Melbourne 6 February 2024 Written submissions: Applicant, 18 January 2024 and 1 February 2024 Respondent, 25 January 2024 Printed by authority of the Commonwealth Government Printer <PR771919> 1 Exhibit 1, Applicant’s reply statement at [2]. 2 Exhibit 1, Offer of casual employment and employment agreement dated 18 July 2023. 3 Exhibit 1, Seek job advertisement filed on 18 January 2024. 4 Exhibit 2 at [3]. 5 Attachment to the Respondent’s email dated 19 January 2024. 6 Transcript PN60-PN66. 7 Exhibit 1, Applicant’s reply statement at [19]. 8 Exhibit 1, Applicant’s witness statement at [10]; Transcript at [431]-[436]. 9 Exhibit 3 at [8]. 10 Exhibit 1, Applicant’s witness statement at [11]. 11 Exhibit 3 at [8]. 12 Ibid. 13 Ibid; Exhibit 1, Applicant’s witness statement at [11]. 14 Exhibit 3 at [9]. 15 Exhibit 1, Applicant’s witness statement at [12]. 16 Exhibit 3 at [9], annexure SW4. 17 Exhibit 3 at [9]. 18 Transcript PN111. 19 Exhibit 1, Applicant’s witness statement at [12]. 20 Ibid. 21 Exhibit 3 at [9]. 22 Exhibit 1, Applicant’s witness statement at [12]. 23 Exhibit 3 at [11]; annexure SW6. 24 Fair Work Act 2009 (Cth), s 12. 25 Explanatory Memorandum to the Fair Work Bill 2008 (Cth) at [1530]. 26 Fair Work Act 2009 (Cth), s 12. 27 Transcript PN115. 28 Ibid. -- 5 of 5 --