Abrahams and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1873

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1873

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1816

GENERAL ADMINISTRATIVE DIVISION			)
Re       GLEN ABRAHAMS

Applicant

And     SECRETARY, DEPARTMENT   OF EMPLOYMENT and  WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date18 October 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

…………[Sgd]…………………  

RG Kenny

Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance – applicant ceased work due to a voluntary act – no reasonable basis for cessation – newstart allowance not payable for a period of 8 weeks – decision affirmed

Social Security Act 1991 (Cth) s 629

REASONS FOR DECISION

18 October 2007     Mr R G Kenny, Member

Application

1.      Prior to August 2006, Glen Abrahams (the applicant) received income support payments under the Social Security Act1991 (the Act) in the form of newstart allowance.  He commenced employment on 7 August 2006.  On 28 September 2006, the respondent determined that Mr Abrahams had voluntarily ceased work and, accordingly, was subject to a statutory penalty whereby newstart allowance was not payable to him for a period of 8 weeks.  That decision was affirmed by the respondent on 2 February 2007.  The Social Security Appeals Tribunal (the SSAT) affirmed the decision on 20 April 2007.  Mr Abrahams seeks review of that decision by the Administrative Appeals Tribunal (the Tribunal). 

Issues and Legislation

2.      The payment of newstart allowance is subject to a range of conditions set out in various provisions of the Act.  These include s 629(1)(b) thereof which precludes payment to a person for a period of 8 weeks if the person becomes unemployed due, either directly or indirectly, to a voluntary act of that person.  This is subject to the proviso in s 629(4) of the Act which enables payments to be made where the person’s voluntary act was reasonable.  The issues to be determined are whether Mr Abrahams became unemployed through a voluntary act and, if so, whether that voluntary act was reasonable in his circumstances.

Evidence

3.      Mr Abrahams gave the following evidence.  He commenced working as a delivery driver for N&M Spare Parts on Monday 7 August 2006.  He carried out his work obligations for four days until Thursday 10 August 2006.  On the morning of Friday 11 August 2006, he contacted his employer by telephone and spoke to the director, Ms M Harris.  He advised her that he was ill and would not be able to work that day.  In response, Ms Harris said: “Don’t bother to come back.”  She then terminated the conversation.  Mr Abrahams understood that this meant he was no longer employed by N&M Spare Parts.  He had no further contact with Ms Harris until he telephoned her late in the month to obtain an Employment Separation Certificate from her.  Mr Abrahams did not obtain medical certification relating to his illness. 

4.      Ms Harris completed an Employment Separation Certificate on 29 August 2006 in which she advised that Mr Abrahams was last employed by her on 10 August 2006.  In a statement completed by her on 4 October 2007, Ms Harris declared that this had been an error on her part and that Mr Abrahams had returned to work on Monday, 14 August 2006.  She also provided a “run sheet” for that day which set out the work activities of three of her drivers including Mr Abrahams.  She also provided copies of payment advice slips made out to Mr Abrahams and these included payments for work on 14 August 2006.  Ms Harris confirmed that Mr Abrahams advised by telephone on 11 August 2006 that he would not be attending work that day because of illness but she denied advising him that he should not bother to return to work.  Ms Harris said that, on Tuesday 15 August 2006, Mr Abrahams again contacted her by telephone and advised that he would not be coming to work because of illness.  Again, Ms Harris denied terminating his employment by telephone at that time.

Consideration

5.      Mr Abrahams has not been consistent in his explanations of events relating to his employment with Ms Harris.  When seeking to have his newstart allowance reinstated after his employment with N&M Spare Parts, he completed a statement on 1 September 2006 for the respondent.  There, he said that Ms Harris was not available on Friday 11 August 2006 when he telephoned and that he advised the organisation of his inability to attend work.  He also said that he returned to work on the following Monday, 14 August 2006, but was “put off on the spot”.  In relation to seeing his doctor on 11 August 2006, he said in his evidence, initially, that because he believed he had been terminated, he did not feel the need to attend a doctor to obtain a certificate.  Subsequently, he said that he had contacted his doctor’s surgery by telephone but was advised that he would not be extended the benefit of bulk-billing and, therefore, felt that he could not afford to attend in order to obtain a certificate.  In his statement of 1 September 2006, he said he was unable to see his doctor because of his own “transport situation” and because the doctor was “booked out”.

6.      Mr Abrahams purported to explain these significant inconsistencies by claiming that he had only a vague recollection of his employment details because of the lapse of time since August 2006.  Nevertheless, any such memory problem has no relevance to his statement of 1 September 2006 which was completed within a short period of the relevant time.  It is supportive of the evidence of Ms Harris that she did not dismiss him on 11 August 2006 and that he attended the workplace on 14 August 2006.  I reject his evidence where it conflicts with that of Ms Harris and I am satisfied that he did attend the workplace on 14 August 2006.  Mr Abrahams said that he did not recall receiving any pay slips in relation to 14 August 2006 and was unable to confirm that the entries in the “run sheet” provided by Ms Harris were made by him on that day although he accepted that the handwriting resembled his own.  He believed that the date on the document ie 14 August 2006 had been altered.  However, I do not accept that contention.

7.      Ms Harris said that Mr Abrahams reported sick on 15 August 2006 and did not return to work thereafter.  I accept her evidence in that regard and am satisfied that his services were not terminated by her.  I am satisfied that Mr Abrahams last worked with N&M Spare Parts on 14 August 2006, in the manner set out in the “run sheet” for that day, and that he ceased his employment thereafter for reasons which have not been explained.  I am satisfied that he ceased work voluntarily for the purposes of s 629(1)(b) of the Act and that he did so in circumstances that were not reasonable for the purposes of the proviso in s 629(4) of the Act.

8.      The decision to suspend payments to Mr Abrahams was not implemented until recently and he is currently serving the suspension period.  The effect of my decision is that this is to continue until the eight week period is completed.

Decision

9.      The decision is affirmed. 

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed:…………………………………………………………..
  Legal Research Officer

Date/s of Hearing  8 October 2007
Date of Decision  18 October 2007
The Applicant  was unrepresented
For the Respondent                  Mr M Amundsen, Departmental Advocate