Anyone who’s ever spent a day or more waiting for their agency’s outsourced IT services provider to let them back onto the network, fix an outage, or install a key piece of software knows the deleterious consequences of not being able to connect to the office when working from home.
It’s a scenario that’s always been frustrating for permanent public servants taking the flexible work option.
But what happens when you’re a contractor or casual employee working for a services provider and the network is a dud? And will you still get paid if there’s an outage?
Those scenarios aren’t hypothetical anymore.
A case before the Fair Work Commission (FWC) has exposed a raft of challenges, and questions, over what rights the hired help for the public service gets when they also work from home — or specifically, accept a role on the basis they can do so.
In a decision handed down on March 14, FWC deputy president Val Gostenick found that a casual employee of Serco, an outsourcer providing customer contact staff to the Australian Taxation Office, was not forced to resign because a lack of network connectivity meant he had to go into Tax’s Box Hill office when he took a job advertised as “hybrid” that only required one day in the office a fortnight.
The unfair dismissal elements of the decision are actually fairly straightforward, in that it’s a case over whether there were alternatives to resigning, but it’s the details around how the case of Ricci vs Serco unfolded and became a dispute, that will have HR types losing sleep over the implications.
The case is a window into how hybrid workplace issues are set to play out in the future because many of the causal factors derive from an alleged failure by an employer to provide the resources needed to execute the tasks required, namely flaky IT.
“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,” the Gostenick decision says.
“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.”
While the decision makes it clear the submission of resignation didn’t pass the test of 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” — it does so on the basis Ricci had other options.
“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 onto the system to perform work,” the FWC decision says.
“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.”
Importantly, the decision makes it clear that there was an assertion by the employer (Serco) that in the event of a loss of external connectivity, an employee or contractor would have to attend the ATO office in person in order to be paid.
“On 20 October 2023, Mr Ricci was contacted by Mr Andrew Wiltshire, an operations manager employed by Serco. Ms Wickes [a Serco team leader] was also on the call. During the conversation, Mr Ricci attempted to explain the difficulties he had experienced with logging onto the system and was told he should return to the office,” the decision notes.
“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.”
This is where the deal really gets interesting for anyone working in labour hire or contracting into any government agency that allows hired help to work from home.
There’s potentially massive savings that accrue to the government, firstly by not having to have a physical office space or only a hot desk. Secondly, the government as an employer can offload much greater expenses and forward contingent liabilities like accrued leave and superannuation.
Unions representing government employees have long had an issue with labour-hire staff and contractors being used as a Trojan horse to create downward pressure on wages and conditions for permanent public servants.
Specifically, they have understandable issues with non-government employees copping badly lower wages when working directly alongside them. Or substantially higher amounts for the same work by contractors when the base public sector wage is so behind no one applies for permanent jobs.
The revelation in the FWC decision suggests, at a minimum, outsourcers are trying to offload and squirm out of paying for offline downtime, at least in terms of the evidence accepted in the case of Allan Robert Ricci v Serco Citizen Services Pty Ltd, not that it was pertinent to the decision.
But it is now on the record and in full public view.
Their network? Their problem.
READ MORE:
Any feedback or news tips? Here’s where to contact the relevant team.