Adams and Secretary, Department of Family and Community Services
[2004] AATA 846
•3 August 2004
Administrative
Appeals
Tribunal
DECISION AND ORAL REASONS FOR DECISION [2004] AATA 846
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/80
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER GERARD ADAMS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date3 August 2004
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that no activity test rate reduction breach applies to the applicant’s Newstart Allowance payments for the period 26 June 2003 to 24 December 2003.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – activity test rate reduction period – dismissal for act that constitutes misconduct or some act that falls short of misconduct – special circumstances – decision set aside
Social Security Act 1991 s 629
ORAL REASONS FOR DECISION
3 August 2004 Senior Member WJF Purcell 1. This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 4 September 2003, which affirmed the decision of an Authorised Review Officer of 30 July 2003, to apply a Newstart Allowance activity test rate reduction breach of 18 percent, for the period 26 June 2003 to 24 December 2003; on the basis that the applicant’s unemployment was due to his misconduct as a worker.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents), together with exhibits tendered by the parties. The applicant, who gave oral evidence, was represented by Ms Riley. Mr Goldsworthy represented the respondent (the Department), and called Mr Lackovic, the applicant’s former immediate supervisor at Bradken Mineral Processing. Mr Lackovic gave evidence by way of telephone link-up.
3. The applicant, who is 40 years of age, had been employed by Bradken Mineral Processing (the Company) for more than 4 years, on and off since 1998. He worked many hours of overtime at weekends, and over the Christmas period; as demonstrated in his tax returns for the 2001/02 and 2002/03 taxation years. At first, the placement was through an Employment Agency, but the Company made an offer of casual employment by Letter of Offer, which was dated 22 November 2002. His rate of pay was $17.20 an hour, which equates to $653.88 gross per week, or $34,000 per annum.
4. The applicant and his wife (the wife) have 4 children aged 13, 11, 6 and 1 year. For most of the 4 years the applicant had been at the Company, he had worked afternoon shift, 2.30pm to 11.00pm; as this suited his family commitments. About 3 weeks before his dismissal, he was told by Mr Lackovic to go on to day shift, 6.00am to 2.30pm. The applicant says that there were other workers who had been with the Company for less time than he, who could have been moved instead. He told Mr Lackovic that his wife, who was 8 months pregnant at the time, used his car in the mornings, to take their 3 children to school, and that he would prefer to remain on the afternoon shift until at least the birth of his fourth child. Mr Lackovic insisted that the applicant change his shift, and said that he had 2 weeks to organise something.
5. The applicant said in evidence that he discussed the matter with his wife, who insisted that this time, he put his family first, and not the Company, as he had on two previous occasions. Some 12 months before this incident, the family's 15 year old German Shepherd cross had died on the back doorstep of the family home. The applicant was informed, and he returned home to bury the dog, but he returned to work within about 2 hours. On the other occasion, the applicant's wife suffered a miscarriage. The applicant refused to leave work, and his brother took the applicant's wife to hospital. The applicant gave evidence that this time, he decided he would rather put up with the hassles of working only 5 hours a day, and being paid accordingly, rather than upsetting his wife so late in her pregnancy.
6. The applicant said in evidence that he told Mr Lackovic that he could not make alternative arrangements, and that he would have to take his children to school at 8.15am, before arriving at work at about 9.00am. He started the day shift on Tuesday, 10 June 2003, the day after the Queen's Birthday holiday weekend, arriving at about 9.00am. He had no conversation with Mr Lackovic, and went home at 2.30pm. As he was a casual worker on casual rates, and he was only paid for the time he was actually working. On the day shift, the 9.30am "smoko" is for 10 minutes. This, together with a 20 minute lunch break, amounts to 30 minutes unpaid time during that shift. Mr Lackovic agreed in evidence that the morning "smoko" is not a paid break.
7. On Wednesday, 11 June 2003, the applicant arrived at work at about 9.00am. He says that he went to the toilet, had a cigarette, and soon thereafter the 9.30am "smoko" bell rang. All workers stop what they are doing. Some go to the communal area and have a cigarette, others remain at their work bay - but do not undertake any work during the 10 minute period. The applicant proceeded towards the communal area. He was stopped by Mr Lackovic, who asked him where he was going; and when the applicant replied that he was going to "smoko", Mr Lackovic told him that he had to return to work. The applicant stated that as the "smoko" was unpaid time, it was his time and he was entitled to take the time. He refused to return to work.
8. Mr Lackovic took the applicant to the office of the recently appointed Human Resources Officer, Mr James. Mr James said in his statement of 12 June 2003 [Exhibit R1], that Mr Lackovic requested that Mr James point out to the applicant that he was not entitled to a "smoko" break, because he had started only half an hour before, and must return to work. The applicant continued to argue that he was entitled to a break, and refused to return to his job. Mr James stated, as did Mr Lackovic in his statement of 12 June 2003 [Exhibit R2], and in his oral evidence, that Mr James asked the applicant whether he realised that he was ignoring a lawful instruction from a supervisor, and if he continued to do so, he could be terminated. The applicant continued to argue that he was entitled to a break, and refused to work. Mr James states that he asked the applicant to return to work twice more, and advised the applicant then, that his services had been terminated. Mr Lackovic accompanied the applicant then, to pick up his personal belongings, and escorted him off the premises.
9. Mr Lackovic said in evidence that in his view, the applicant having commenced work at 9.00am, was not entitled to an unpaid "smoko" break at 9.30am, but had to wait until his first break at 12 noon, but that the applicant did not agree with him.
10. The applicant gave evidence that as he approached the communal area, Mr Lackovic summoned him in front of all the newly recruited workers. He was humiliated and angry, and after working 4 years for the Company, he knew full well that "smoko" time was unpaid time, and his entitlement. He said that Mr James told him to return to work, and that he tried to explain that it was his time, and not their time. There was no warning that he might be sacked. He would have in the end, returned to work, as by that time there was only a few minutes of "smoko" time left. He said that he would not have been so stupid as to risk losing his job for the sake of 10 minutes, with his wife about to have another baby. He was simply sacked without warning. He was angry and humiliated to think that after four years he was escorted off the premises. I accept the applicant's evidence, and prefer his evidence to that of Mr Lackovic in any area of dispute in the evidence.
11. There was further evidence from the applicant and Mr Lackovic in relation to the applicant's work performance, whether his grinding work was slow, and whether that was the reason for changing him to the day shift, so that Mr Lackovic could watch him more closely. I do not intend to outline this evidence in these brief oral reasons for decision. As in any dispute, there will be differing versions, depending on the viewpoint of the storyteller. In this matter, there may well be some background to the applicant's assertions that as one of the most competent and conscientious of the "casuals", he got a lot of the “bad jobs”, that is, the steel plates more out of shape than others, which required much longer and more meticulous grinding work for the sheets to reach the proper standard of precision. It would not be the first time a supervisor has said that his foreman allocate work on an “equitable basis without favour”. In any event, Mr Lackovic agreed in evidence, that only the "good workers" were used for overtime work at weekends and over the Christmas period; and it is clear on the evidence that during the nearly 4 year period the applicant worked for the Company, he worked extensive overtime at weekends and Christmas. He was clearly a “good worker", who for some reason had fallen out with his supervisor.
12. The applicant said in evidence that having been sacked by the Company, it being the biggest foundry in South Australia, it was virtually impossible for him to get a job without a reference. In addition, when he approached Centrelink for the first time, he found that he had been “breached", and for the next 6 months with the 18 percent reduction of benefits, the family found it extremely difficult to cope. He was so convinced of the rightness of his cause that he instructed a solicitor, and lodged a claim for unfair dismissal. The matter resolved after a compulsory Conciliation Conference in the State Industrial Relations Commission, with the Company agreeing to pay some wages to the applicant in lieu of notice.
13. When the applicant applied for Newstart Allowance on 26 June 2003, the delegate determined, pursuant to s 629 of the Social Security Act 1991 (the Act), that the applicant had become unemployed due to misconduct as a worker, and imposed an activity test rate reduction breach period from 26 June 2003 to 24 December 2003. Section 629 of the Act provides:
“If a person’s unemployment is due to the person’s misconduct as a worker (the misconduct), then:
(a)if the misconduct is the person’s first or second activity test breach in the 2 years immediately before the day after the misconduct - an activity test breach rate reduction period applies to the person; or
(b)if the misconduct is the person’s third or subsequent activity test breach in the 2 years immediately before the day after the misconduct - an activity test non-payment period applies to the person.”
14. Misconduct is not defined in the Act, but in the Social Security guide. It states:
“A customer is regarded as coming unemployed through misconduct if they have been dismissed or given the option of resigning, as a result of:
·failure through their own deliberate actions to produce/deliver a reasonable amount of work,
·unauthorised absences from duty without good reason, OR
·improper behaviour or practices.”
15. In my view the applicant's behaviour was an overreaction to the situation which had arisen, but I do not consider, on the whole of the evidence, that his refusal to return to work until the "smoko" was over, and arguing that his absence from his workbench was in his time, was a “misconduct” of the type outlined in the authorities and the Departmental guidelines. I accept the applicant's evidence that he was not warned that his continued refusal to return to work would lead to his dismissal. I accept his evidence to the effect that whilst arguing his case, he was dismissed, there was nothing more he could do - and he has suffered emotionally and financially because of his momentary overreaction.
16. I am satisfied on the evidence that the applicant's employment was not due to his misconduct as a worker.
17. For these reasons, the Tribunal sets aside the decision under review, and substitutes a decision that no activity test rate reduction breach applies to the applicant's Newstart Allowance payments for the period 26 June 2003 to 24 December 2003.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDates of Hearing 29 July 2004 & 3 August 2004
Date of Decision 3 August 2004
Counsel for the Applicant Ms M Riley
Solicitor for the Applicant Welfare Rights
Counsel for the Respondent Mr C Goldsworthy
Solicitor for the Respondent Centrelink Service Recovery Team
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