Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - application for order to attend

• [1] An application has been made pursuant to s 365 of the Fair Work Act 2009 (the Act) by Ms Ricarda Mellor against her former employer Amotiv Limited (Amotiv).
• [2] Amotiv objects to the application on the basis it is said Ms Mellor was not dismissed.
• [3] While the Commission has power to attempt to assist the parties to resolve a dispute such as this one, it is not permitted to exercise that power without first resolving the question that has been raised as to whether Ms Mellor was dismissed[1].
• [4] I have made Directions to enable me to determine that matter, including that it be the subject of a hearing. The hearing, previously listed to occur on 3 July 2025 is now listed to occur on 4 - 5 September 2025 due to the availability of Counsel and as a result of unresolved applications made somewhat late in proceedings by Ms Mellor for Orders to produce documents and for persons to appear before the Commission. The Directions I have made also required the parties each to file and serve an Outline of Argument and Statements of Evidence. It is worth noting that these Directions, made in the Commission's usual form, reflected the Commission's typical practice to take evidence in chief from witnesses in the form of a written Statement of Evidence. Thus, while not yet having been taken into evidence, the Statements I have before me should provide a reasonably comprehensive picture of the dispute I am required to deal with. The material filed is as follows:
  1. Outline of Submissions filed by both parties and a reply Submission filed by Amotiv
  2. For Amotiv, Statements of Evidence from of Mr Chandler, Ms Harrison and Ms Appleton and Reply Statements from Mr Chandler and Ms Harrison.
  3. For Ms Mellor, Statements of Evidence from of Ms Mellor and Mr Sawat.

• [5] On 27 June 2025 Ms Mellor filed an application pursuant to s 590 of the Act seeking an Order for certain persons to attend the Commission when it is heard (the appearance order application).
• [6] The appearance order application seeks an order be made requiring the following persons to appear before the Commission:
  1. Mr Gino Ricciuti
  2. Ms Jennifer Haydock
  3. Mr Swat Sawant
• [7] Ms Mellor seeks to amend this application to remove the request for an Order requiring the appearance of Mr Sawant. Mr Sawant has filed a witness statement in these proceedings and an order for his appearance is not required. To the extent necessary, I grant the Applicant permission to amend the application to remove the request or an order in respect to Mr Sawant, pursuant to s 586 of the Act.
• [8] I have before me the following material filed by the parties in relation to the appearance order application:
  1. A response provided by Amotiv opposing the application, of 30 June 2025
  2. An email sent from Ms Mellor's solicitors of 1 July 2025
  3. Submissions made by Ms Mellor of 2 July 2025
  4. Submissions filed by Amotiv of 2 July 2025
  5. Correspondence from Ms Mellor, explaining her efforts to obtain an address for Mr Ricciuti from Amotiv, of 3 July 2025
• [9] In determining the appearance order application, I have had regard to all of the material before me. I was also assisted by oral submissions made by Counsel for the parties at a mention I conducted on 3 July 2025.

The power to require the attendance of a person before the Commission

• [10] Section 590 of the Act provides that the Commission may inform itself in relation to any matter before it, in such a manner as it considers appropriate. This may include requiring a person to attend before the Commission[2].
• [11] The power is discretionary and in determining whether to make an order to attend, the Commission will consider whether attendance by the person to whom the order will apply will assist in the resolution of the matter before it[3].

• [12] Some of the key the assertions made in Ms Mellor's material relevant to the determination of the appearance order application can be summarised as follows:
  1. Ms Mellor was employed by Amotiv on 13 May 2024 as the General Manager - People, Culture and Safety
  2. On 17 January 2025 Ms Mellor advised her Manager, Mr Chandler, of her decision to resign her employment. The cessation of her employment occurred on 22 April 2025 because she worked throughout a 3-month notice period following confirmation of her resignation in writing on 17 January 2025.
  3. During her employment, Ms Mellor worked with, among other people, Mr Gino Ricciuti, Executive General Manager, "IM Group" (apparently a division of Amotiv Group).
• d. In her Statement of Evidence, Ms Mellor described Mr Ricciuti's behaviour, toward her and toward others, as "troubling" and "inappropriate"[4]. In terms of the evidence which will apparently be given by Ms Mellor about behaviour she herself experienced in respect to Mr Ricciuti, examples of conduct which I expect will be characterised as "inappropriate" are that on 15 August 2024 he became frustrated during a meeting and banged a table[5] and became "physically frustrated" in a meeting on 9 October 2024[6]. She also alleges that at some point in about December 2024 she became aware Mr Ricciuti had repeatedly viewed her Linked In profile, which she took as an attempt to intimidate her[7].
• e. In her Statement of Evidence, Ms Mellor also gives an account of behaviour Mr Ricciuti is said to have engaged in, based on her conversations with other colleagues, including Mr Sawant[8] and other unnamed people[9]. Mr Sawant's Statement of Evidence provides an account of conduct he experienced being engaged in by Mr Ricciuti he describes as "aggressive, physical and verbally abusive"[10].
• f. Also in her Statement of Evidence, Ms Mellor gives several examples of conduct engaged in by other employees of Amotiv which I expect will be the basis of an assertion made by Ms Mellor that Amotiv failed to deal properly with Mr Ricciuti's conduct, or tolerated it, or protected him. Among these is a comment said to have been made to Ms Mellor by Ms Harrison about "appeasing" Mr Riccuiti[11]. Another are examples of Mr Ricciuti's apparent resistance, expressed to Ms Mellor, to deal with an underpayment of employment entitlements matter, where she believes his resistance was being tolerated or allowed by Amotiv[12].
• g. On 3 December 2024 a Whistleblower Complaint was made to Ms Mellor by several employees. Details about the complaint are not before the Commission. Ms Mellor says the subject of the complaint was Mr Riccuiti. Ms Mellor says that during an investigation into this complaint, edits were made to a file note she had made relating to the complaint. Ms Mellor appears to have been concerned the complaint was not being genuinely dealt with by Amotiv[13].
• h. In January 2025 Mr Riccuiti was stood down because of the Whistleblower Complaint[14]. In May 2025 Mr Riccuiti's employment was terminated[15]. No reason or explanation for the termination of his employment has been provided to the Commission at this time.
• [13] The Statements of Evidence filed for the Respondent, by Ms Mr Chandler, Ms Harrison and Ms Appleton, take issue with some of the assertions made by Ms Mellor.
• [14] In a written submission filed by the Applicant, it says its case, "in a nutshell" is that:

"a She faced workplace pressures that exposed her to potential personal liability which she could not tolerate

b. These pressures arose principally from unacceptable conduct of Mr Riccuiti

1. In an attempt to deal with some of these issues, the applicant faced stone-walling, distraction or diversion, and a culture that protected Mr Ricciuti."

• [15] At a mention conducted in relation to this matter, Counsel for Ms Mellor confirmed the accuracy of the following summary of the basis of her application:

"COMMISSIONER REDFORD: That the conduct in respect to Mr. Ricciuti is conduct you say he engaged in, which had the probable result of Ms Mellor's resignation in circumstances where she had no choice but to submit that resignation because the Respondent is responsible for Mr. Ricciuti's conduct.

That the Respondent itself in having tolerated, perhaps even, I think you might use at different moments, the word protected ... Mr. Ricciuti that that conduct taken by the Respondent had the probable result of Ms Mellor's resignation in circumstances where she had no choice."

• [16] Ms Mellor argues Mr Ricciuti should be compelled to appear before the Commission in this matter because he is the protagonist in her case theory of constructive dismissal, and that it was her working relationship with him which was why she was forced to resign. Ms Mellor poses the question of whether it is "on the cards" that Mr Ricciuti might give evidence which is relevant in this matter, to which question she submits the only open answer is "yes". In other words, the basis upon which Ms Mellor says Mr Ricciuti should be compelled to appear before the Commission in this matter is that his evidence will be relevant to the matter required to be determined.
• [17] In particular, Ms Mellor appears to argue that Mr Ricciuti can give evidence about his conduct, which she says is attributable to her employer, as conduct engaged in with the probable result of bringing her employment to an end such that she had no choice but to resign, and also conduct it is said was engaged in by Amotiv, in tolerating Mr Ricciuti's conduct or protecting him, also conduct which it will be said was engaged in with the probable result of bringing her employment to an end such that she had no choice but to resign.

1. Ms Haydock is only very briefly referred to in the Statements of Evidence that have been filed by the parties in this matter[16]. She is not referred to in Ms Mellor's Outline of Submissions or the Submissions filed by Amotiv. The Form F51 application filed by Ms Mellor describes Ms Haydock as follows:

"Ms Jennifer Haydock is from iHR who has material evidence given she investigated the relevant complaints".

• [19] In her submissions in support of the appearance order application, Ms Mellor provides little in the way of further identifying information about Ms Haydock - a person in respect of whom she seeks an order to appear. I have however managed to glean - particularly from the Submissions filed by Amotiv - that Ms Haydock is not and never was an employee of Amotiv - she works for something called "iHR" - which appears to be a human resources firm engaged by Amotiv to conduct an investigation into what is being described in these proceedings as the "Whistleblower Complaint" (referred to above). Amotiv says that "while Ms Haydock conducted some of the interviews as part of the investigation into Mr Ricciuti, it was another investigator from iHR who ultimately made the findings of fact and wrote the investigation report. Ms Haydock was not involved in this part of the investigation"[17]. It does not appear to be in dispute that at some point after Ms Mellor resigned, but before her employment ended, she was interviewed by Ms Haydock[18].
• [20] At the mention conducted in relation to this matter, it was submitted for Ms Mellor that Ms Haydock conducted interviews with people who made the Whistleblower complaint. It was submitted that on this basis, she would be in a position to provide the Commission with "relevant evidence about whether she detected a culture of tolerance or protection towards Ms Ricciuti based on her dealings and interviews with the complainants". Thus, as with the application for an order compelling Mr Ricciuti to attend before the Commission, the basis of Ms Mellor's application concerning Ms Haydock is that it is said her evidence would be relevant to the issue I am required to determine.
• [21] While evidence as to the conduct of Amotiv led through Ms Haydock, based on things said to her by people not giving evidence in this proceeding, is conceded by Ms Mellor, to some extent, to constitute hearsay evidence, it is asserted by Ms Mellor that Ms Haydock can also provide "opinion evidence" which would be probative.

• [22] In objecting to the orders sought in relation to Mr Ricciuti and Ms Haydock, Amotiv referred me to the decision of Saunders DP, in Thomas v Serco Australia Pty Ltd[19] in which his honour set out several non exhaustive examples of considerations which may inform the central question on relation to an application for an appearance order, as to whether attendance by the person in question will assist the Commission in resolving the matter before it:

"[9] In determining an application for an order to attend, the Commission will consider whether attendance at the conference or hearing by the person to whom the order will apply will assist in the resolution of the matter before it. This will turn on the circumstances of each case. An order to attend may not be required or appropriate in circumstances where, for example:

(a) a party is yet to file its submissions and witness statements;

(b) the person required to attend has filed a witness statement and will therefore voluntarily attend;

(c) the person required to attend is a representative;

(d) the person required to attend is not likely to be able to give evidence of apparent relevance to the issues in dispute;

(e) where the person's evidence is likely to be the same or corroborative of other persons who give evidence about the same matters and will add nothing to that evidence;

(f) where the person's evidence relates to agreed or uncontested facts;

(g) where the person's evidence is otherwise obtainable from relevant documents, CCTV footage or business records; or

(h) where there is an unwarranted or disproportionate inconvenience or cost associated with ordering the person to attend the Commission, whether in person or otherwise, to give evidence."

• [23] In relation to Mr Ricciuti, Amotiv argues that an order for his attendance should not be made because, in summary:
  1. The evidence of the kind that Ms Mellor says Mr Ricciuti can probably give should be more properly given by Ms Mellor;
  2. Mr Ricciuti's conduct, whatever it was, cannot be equated with the Amotiv's conduct;
  3. There is an unwarranted and disproportionate cost arising from the likelihood that the duration of the hearing in relation to this matter will be extended, if Mr Ricciuti, and Ms Haydock are compelled to appear.
• [24] In relation to Ms Haydock, Amotiv submits that an Order for her appearance should not be made including based on the following:
  1. Ms Haydock cannot give the evidence Ms Mellor hopes she can give, about Amotiv's conduct, because she has never been in a position to directly observe such conduct.
  2. In so far as evidence about whether allegations made against Mr Ricciuti were substantiated or not, Ms Haydock cannot give such evidence because she did not make findings of fact in relation to the investigation or write the report.
  3. The possibility or likelihood that Ms Haydock can give evidence about a culture of protection surrounding Mr Ricciuti is speculative and akin to a documentary fishing expedition.

• [25] Given the way the case in favour of the appearance order application was argued by Ms Mellor, it is appropriate to re-state at the outset that there is no doubt the power of the Commission to make an order requiring persons to attend is discretionary[20]. An order will not necessarily be made simply because a party hopes the person subject to it will give evidence helpful to them. It requires consideration and appropriate weight being given to a range of factors relevant to the exercise of the discretion, including for example, cost and inconvenience. It is conceivable that a person whose evidence might have some relevance to a proceeding before the Commission might still not be compelled to attend if other factors relevant to the exercise of the discretion weigh sufficiently against such an order being made.
• [26] To determine the jurisdictional objection made by Amotiv in this matter, I am required to consider Amotiv's conduct and whether it engaged in conduct with the intention of bringing Ms Mellor's employment to an end or whether termination of the employment was the probable result of its conduct such that Ms Mellor had no effective or real choice but to resign[21]. This calls for an objective analysis of Amotiv's conduct[22].
• [27] Undoubtedly, Ms Mellor's evidence will be central to my determination - her evidence about the conduct she experienced - to allow me to determine whether objectively, that conduct could be said to be of a nature which had the probable result of Ms Mellor's termination of employment such that she had no effective or real choice but to resign.
• [28] Mr Riccuiti's evidence is therefore likely to be supplementary, at best, to Ms Mellor's evidence in this matter. Assuming his evidence does not directly contradict Ms Mellor's evidence (which would present a different set of issues), it seems to me unlikely that his evidence can do more than simply corroborate Ms Mellor's evidence about what happened.
• [29] It was submitted for Ms Mellor that the case in favour of Mr Riccuiti giving evidence in this proceeding is "one of the most obvious cases one can imagine for an appropriate summons to be issued". I do not agree with that submission. It was made with conviction - perhaps because it is based on material that for whatever reason was not put before me. On the basis of the material that is before me, I consider Mr Riccuiti may have evidence to provide in relation to the question I must determine that is of peripheral relevance at best, taking into account the other evidence that will be before me, and thus the case in favour of compelling him to attend is not "obvious".
• [30] I am concerned that in circumstances where Mr Riccuiti's employment appears to have been terminated by Amotiv, where he was the subject of a complaints made against him and an investigation, where he no longer works for Amotiv and where, as I understand it, his whereabouts are at this stage unknown, the degree of inconvenience and disutility in compelling him to appear before the Commission is indeterminate. The conduct of this proceeding has already been afflicted by significant delay arising from Ms Mellor's rather tardy applications for appearance and production orders, and to accommodate the availability of Counsel. The submission made by Ms Mellor in favour of compelling Mr Riccuiti's appearance is based entirely on relevance. If it transpires that Mr Riccuiti's appearance in this proceeding results in further delay, it may well be that any potential relevance of what he may have to say is outweighed by such inconvenience.
• [31] In circumstances where the objection made by Amotiv in relation to Ms Mellor's application will, if it is upheld, result in the dismissal of her application, ultimately Ms Mellor should be permitted, within reason, to put the case she wishes to put. Having regard to the matters I consider relevant to the exercise of discretion in this matter, the matter is finely balanced, but I will issue an Order that Mr Riccuiti appear before the Commission in this matter.
• [32] As I have explained above, the power to make an order pursuant to s 590 of the Act requiring a person to attend is discretionary and requires the balance of several factors relevant to that discretion. The Order requiring Mr Riccuiti's attendance will, as is customarily the case, be expressed in such a way that there may be an application made that it be set aside. If the concerns I have expressed about Mr Riccuiti's involvement causing any further delay in this proceeding come to fruition, I expect this at least to be one of the bases upon which any such application for the Order to be set aside may be made.
• [33] The case in favour of an order compelling the appearance of Ms Haydock has not been made out. I am told Ms Haydock - a workplace investigator of some kind - spoke to some people - whose identity is anonymous - about a complaint which I have almost no detail about, and at best, might as a result have an opinion to offer about what those conversations led her to believe about the conduct of Amotiv in respect to Mr Riccuiti. If in the course of determining the question before me I consider it necessary, I will form my own opinion as to Amotiv's conduct, based on the evidence, which will involve, among other things, the account of at least four people who worked for Amotiv during the relevant period (including Ms Mellor). I do not consider Ms Haydock's evidence, even if of some minor relevance, necessary to assist me to determine this matter taking into account the other material that is before me.
• [34] For these reasons an Order will issue requiring Mr Riccuiti to appear before the Commission and the appearance order application is otherwise dismissed.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; see also Marie Vic Dawson v Centre for Digestive Diseases Pty Ltd [2025] FWCFB 50

[2] Fair Work Act 2009 s 590(2)(a)

[3] Dylan Thomas v Serco Australia Pty Limited [2023] FWC 386 [9]; applying Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 3847

[4] Applicant's Statement of Evidence, Witness statement number 1 (Ricarda Mellor), 13 June 2025 [7]

[8] Ibid [10] - [11], [17] - [18], [26]

[10] Applicant's Statement of Evidence, Witness statement number 2 (Sawap Sawant), 13 June 2025 [6]

[11] Applicant's Statement of Evidence, Witness statement number 1 (Ricarda Mellor), 13 June 2025 [21]

[12] Ibid [25] - [28], [30], [32] (may be misnumbering and likely to be [42])

[14] Statement of Kirsten Amber Appleton, 27 June 2025 [15]

1. [16] Witness Statement of Stuart Andrew Chandler, 2 June 2025 [25] - [26]

[17] Respondent's Response to Applicant's Attendance Order Application, 2 July 2025 [15]

[18] Applicant's Submissions on Procedural Issues, 2 July 2025 [30]

[19] [2023] FWC 386

[20] Eva Elisabeth Johansson v Edge Early Learning Administration Pty Limited [2024] FWCFB 426 [50]

[21] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 [47]

[22] O'Meara v Stanley Works Pty Ltd [PR973462] Giudice P, Watson VP, Cribb C, 11 August 2006 [23]

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