Serco Citizen Services Pty Limited v Parsons

Link copied
Case Copied 53 min read

FEDERAL COURT OF AUSTRALIA

Serco Citizen Services Pty Limited v Parsons [2025] FCAFC 83

Appeal from:

Parsons v Serco Citizen Services Pty Limited [2024] FCA 754

Parsons v Serco Citizen Services Pty Limited (No 2) [2024] FCA 1103
File number: NSD 1088 of 2024
Judgment of: COLLIER ACJ, NEEDHAM AND WHEATLEY JJ
Date of judgment: 24 June 2025
Catchwords:

INDUSTRIAL LAW – unlawful termination – where the primary judge found that the Appellant contravened s 340(1) of the Fair Work Act 2009 (Cth) by taking adverse action again against the Respondent because he exercised a workplace right by making complaints – whether the primary judge ignored the context of the role of the decision maker – whether the primary judge erred by ignoring the context of an HR specialist’s views which were genuinely held and not contested – whether the primary judge erred in finding that the termination letter was unreasonable as the signatory of the letter must not have believed that the contents were true – no grounds of appeal made out

PRACTICE AND PROCEDURE – whether a judgment is final or interlocutory and thus requires leave to appeal – s 24 of the Federal Court of Australia Act 1976 (Cth) considered – where primary Judge gave bifurcated reasons on liability and subsequently penalty – where Appellant appeals from the whole of both judgments – where notice of appeal is pleaded in a manner which directly challenges the interlocutory judgment on its own, rather than on the grounds that said judgment affected the final result in the penalty judgment – authorities considered – notice of appeal incompetent – primary judge’s decision not attended with sufficient doubt to support a grant of leave to appeal

PRACTICE AND PROCEDURE – application for dismissal in circumstances where the Appeal Books were filed out of time – where the delay in filing and service was 4 days – where the Appellant was a litigant in person – where the Appellant suffered no relevant prejudice – where the delay was explained by affidavit – application dismissed

Legislation:

Fair Work Act 2009 (Cth) ss 334, 340, 341, 342, 360, 361

Federal Court of Australia Act 1976 (Cth) ss 4, 24, 37M
Cases cited:

Alam v National Australia Bank Ltd (2021) 288 FCR 301; [2021] FCAFC 178

Australia Bay Seafoods Pty Ltd v Northern Territory of Australia (2022) 295 FCR 443; [2022] FCAFC 180

Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347; [2018] FCAFC 83

Avard v Australian Capital Territory [2024] FCA 690

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

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Caboche v Ramsay (1993) 119 ALR 215

Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767; [1984] HCA 47

Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 338 ALR 360; [2016] HCA 41

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Serco Citizen Services Pty Limited v Parsons and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2025] FCAFC 83
Decision Date

CaseChat Overview and Summary

Serco Citizen Services Pty Limited, the appellant, filed an appeal against the decision of Parsons, the respondent, who had brought proceedings under the Fair Work Act 2009 (Cth) alleging wrongful termination. The primary judge found that Serco had contravened section 340(1) of the Act by taking adverse action against Parsons for exercising a workplace right. The appeal centred on the grounds that the primary judge erred in various aspects, including ignoring the roles of the Operations Director and the HR Specialist, and the reasonableness of the termination letter. Additionally, procedural issues such as the competency of the notice of appeal and the timeliness of filing appeal documents were contested.

The court was tasked with determining whether the primary judge correctly considered the roles and responsibilities of the Operations Director and the HR Specialist in the decision-making process, and whether the primary judge erred in assessing the reasonableness of the termination letter. The court also had to decide whether the appeal was properly noticed and whether the appeal books were filed in a timely manner, which could affect the competency of the appeal. The central issue was whether the primary judge had correctly interpreted the evidence and applied the relevant legal principles in reaching their decision.

The court found that the primary judge did not err in their consideration of the roles and context of the decision-making process. The court held that the Operations Director's acceptance of the HR Specialist's recommendation and subsequent signing of the termination letter did not alter the primary judge's analysis, as the letter was objectively unreasonable regardless of who drafted it. The court also found that the appeal was not properly noticed as it challenged an interlocutory judgment directly rather than through its effect on the final result. Additionally, the court dismissed the application for leave to appeal due to the late filing of the appeal books, noting that the delay was minor and did not cause any prejudice to the respondent.

The court upheld the objection to the competency of the appeal, dismissed the appeal as incompetent, and made no order as to costs. This decision underscores the importance of properly noticing appeals and adhering to procedural timelines in the Federal Court.

Orders

Orders of the court

1. The objection to competency be upheld.

2. The appeal be dismissed as incompetent.

3. There be no order as to costs.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As part of the Orders made in the Liability Judgment, the primary judge made orders for any affidavits and submissions regarding the issue of any pecuniary penalty. The primary judge then delivered judgment on the question of penalty in Parsons v Serco Citizen Services Pty Limited (No 2) [2024] FCA 1103 on 19 September 2024 (Penalty Judgment). On 10 October 2024, Serco filed a notice of appeal against the Liability Judgment and the Penalty Judgment alleging that the primary judge erred in holding that Mr Parsons was dismissed from his employment with Serco in contravention of s 340(1)(a)(ii) of the FWA and for Serco to pay a pecuniary penalty for that contravention. Mr Parsons has filed two notices of objection to competency against each of the application for an extension of time and leave to appeal and the notice of appeal. Mr Parsons has also filed an interlocutory application seeking that the appeals be dismissed on the basis that the Appellant failed to file and serve the appeal book on time and in accordance with the Orders dated 4 December 2024 (Dismissal Application). An initial issue arises and was addressed by way of supplementary submissions by Serco, which is whether Serco still requires leave to appeal. Serco’s notice of appeal raises many grounds of appeal. All of the grounds involve the alleged error by the primary judge regarding the interactions, context and states of mind of each of Ms Sfitskis, being a “People and Capability Specialist”, which is a Human Resources position (the HR Specialist), and Ms Powell, who was at the relevant time Serco’s Operations Director. At its core, Serco relies on the different roles, tasks, responsibilities and knowledge of the HR Specialist who conducted the investigations, interviews and made the dismissal recommendation to the Operations Director and that of the Operations Director who received and accepted the dismissal recommendation and signed the termination letter (drafted by the HR Specialist). At the hearing, a key issue was identified as to whether the decision-maker was only the Operations Director, or if it were the Operations Director and the HR Specialist together. Serco has distilled its grounds of appeal in its submissions, by way of the following three issues regarding the inferred factual finding of the Operations Director’s state of mind, being that the primary judge erred by:(1)ignoring the context of the role of the Operations Director which included whether or not to accept the HR Specialist’s recommendation;(2)ignoring the context of the HR Specialist’s views which were genuinely held and not contested; and(3)finding that the termination letter was unreasonable as the signatory of that letter (the Operations Director) must not have believed that the contents of the letter were true.(Distilled Grounds)To these issues must be added:(1)whether leave to appeal is required;(2)Mr Parsons’ objections to competency and Dismissal Application; and(3)whether the decision-maker was only the Operations Director or whether it was the Operations Director and the HR Specialist together.

Ratio Decidendi

Legal Principle Established

However, this Court was not invited to reconsider the authorities or delve into any potential tension. As it was not argued that the current state of the law or the authorities in this Court are “plainly wrong”, we should follow them: Telstra Corp Ltd v Treloar (2000) 102 FCR 595; [2000] FCA 1170 at [26]; NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292 at [61]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2 at [8]–[9] and [146]–[149]; New Zealand v Moloney (2006) 154 FCR 250; [2006] FCAFC 143 at [135]–[138]; Selim v Lele (2008) 167 FCR 61; [2008] FCAFC 13 at [54].(1) Context of the Operations Director’s role in accepting a recommendation of the HR SpecialistSubmissions In essence, Serco submits that the primary judge erred because relevant evidence was not taken into account and/or an incorrect inferential factual finding as to the state of mind of the Operations Director was made. Serco relies on what it suggests is a common position in larger organisations, that the decision to dismiss Mr Parsons involved two staff; one being the HR Specialist and the other being the Operations Director. Serco submits that the HR Specialist interviewed witnesses, considered the evidence and gave the Operations Director a written recommendation of dismissal. The Operations Director accepted that recommendation. The HR Specialist drafted a termination letter and the Operations Director signed it. In this context, Serco submits that the recommendation of the HR Specialist was a key part of the factual foundation to the decision to dismiss. However, the error submitted by Serco was that the primary judge at [106] found that the HR Specialist’s recommendation and motives were irrelevant and the primary judge then considered the Operations Decision as if the HR Specialist was not involved. The termination letter, for example, is said to be analysed as if the Operations Director was the author as opposed to its signatory. This, it is submitted by Serco, had a crucial impact on the outcome of the case and the primary judge’s consideration of the evidence. It is contended that the primary judge fell into error by objectively analysing the termination letter and dismissal process without considering the context of the decision-making process that the Operations Director operated in. Serco further submitted that the primary judge ought to have considered why the Operations Director accepted the recommendation and signed the termination letter of the HR Specialist, whereas the Court treated the termination letter and process as if it were entirely the work of the Operations Director. Serco submits that this finding was in error because it treated the Operations Director as if she were in a position and undertook tasks that she in fact did not. It also, so Serco contended, ignored an earlier finding at [58] that the Operations Director was “comfortable with the content” of the draft prepared by the HR Specialist. Serco also relies on the passage from the primary judge at [149], which it then submitted was in error because the Operations Director did not “state” that information as she signed a letter drafted by the HR Specialist containing that statement. The conclusions that the Operations Director did not conduct the “rudimentary check” are then said to not be open to the Court because these matters were assessed without the relevant context. Serco takes similar issue with the PJ at [160]-[161], submitting that the Operations Director did not select or interview the witnesses as that was undertaken by the HR Specialist.