Alena Housego and Secretary, Department of Social Services
[2014] AATA 146
[2014] AATA 146
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1771
Re
Alena Housego
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member N A Manetta
Date 17 March 2014 Place Adelaide The decision under review is affirmed.
....................[Sgd]....................................................
Senior Member N A Manetta
CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - Newstart Allowance – “connection” and “reconnection” failures - alleged failure to enter into an Employment Pathway Plan - failure found to have occurred - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 605(2)
Social Security (Administration) Act 1999 (Cth) ss 42E, 42H, 42K, 42L
Social Security (Administration) (Penalty Amount) (DEEWR) Determination 2012 (No 1)
CASES
Housego v Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 973
REASONS FOR DECISION
Senior Member N A Manetta
17 March 2014
This is an application by Ms Alena Housego for review of a decision by the Social Security Appeals Tribunal, which has affirmed an earlier decision that the “Newstart” unemployment allowance paid to her under the Social Security Act 1991 should be reduced.
The Respondent applied this penalty after a series of interviews in 2012 between Ms Housego and staff of a private-sector employment agency, Campbell Page. Campbell Page had been retained by the Respondent to help Ms Housego find paid work. The interviews were intended to lead to a new Employment Pathway Plan (“EPP”) to supersede the one agreed earlier that year. Employment Pathway Plans document the activities required to be undertaken by Newstart allowance recipients to improve their chances of securing work.
The parties agree that the critical interviews in question occurred on 24 October 2012, 8 November 2012 and 21 November 2012. Another interview took place on 5 November 2012, and it is relevant to an understanding of the interview on 8 November 2012.
No new EPP was concluded at any interview, and the Respondent proceeded to penalise Ms Housego.
LEGISLATIVE PROVISIONS AND PARTIES’ CONTENTIONS
The key legislative provisions and the parties’ principal contentions may be summarised as follows. Under s 605(2) of the Social Security Act 1991 (“the Act”), the Respondent may require a person who has entered into an EPP to enter into a new one. The Social Security (Administration) Act 1999 (“the Administration Act”) provides, in s 42E, that a “connection failure” occurs where a person fails to enter into an EPP under s 605 of the Act.
The Respondent submits, and Ms Housego agrees, that Ms Housego had already entered into an EPP in March 2012. The Respondent contends that Ms Housego was required to enter into a new EPP and failed to do so at the interview on 24 October 2012. Ms Housego agrees that she attended the interview on 24 October 2012 to negotiate a new EPP, but denies that the failure to conclude a plan on that day was her fault.
Section 42H of the Administration Act permits the Respondent to determine that there has been a “reconnection failure” when a person failures to comply with a “reconnection requirement”. A reconnection failure permits the Respondent to reduce a recipient’s Newstart allowance. The aggregate penalty is calculated by reference to a daily rate that begins on the first day of the reconnection failure and ends on the day before the failure is rectified.[1]
[1] See ss 42H and 42L of the Administration Act together with the Social Security (Administration) (Penalty Amount)(DEEWR) Determination 2012 (No 1).
The Respondent contends that after 24 October 2012, Ms Housego was required again to enter an EPP. This constituted a reconnection requirement. The Respondent contends that Ms Housego failed to enter an EPP on each of 8 November and 21 November and thereby failed to comply with the requirement.
Ms Housego accepts that she was required to enter an EPP on each of these occasions, but reiterates that there was no prior connection failure on 24 October 2012. She agrees that the new EPP was to be negotiated on 8 and 21 November 2012 but denies that she was responsible for the failure to agree it on these days. She says the fault lies with Campbell Page.
QUESTIONS BEFORE THE TRIBUNAL
The crucial questions of fact in this case concern the events at each of the three interviews in question. Deciding these questions afresh on the evidence before me,[2] I have to determine whether Ms Housego did, or did not, fail to enter into an EPP at each of the interviews. This requires an assessment of her behaviour at each interview to determine whether Campbell Page was justified in terminating it without proceeding further with the negotiation of an EPP. The Respondent says that Ms Housego brought about the failure of all three interviews. Ms Housego blames Campbell Page.
[2] The Respondent referred me to an earlier Tribunal decision involving her: Housego v. Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 973. In this case, Ms Housego was found to have refused to enter into what was then known as a “work for the dole” activity agreement. I have not had regard to this decision in forming my conclusions. In my view, it would have been inappropriate to do so. I have decided Ms Housego’s application by reference to the evidence adduced before me.
If the Respondent’s contention is correct that Ms Housego was at fault at each interview, it follows, in my view, that a “connection failure” occurred on 24 October 2012, and “reconnection failures” occurred on 8 November 2012 and 21 November 2012.
(1) Was there a connection failure at the interview on 24 October 2012?
Both parties accept that Ms Housego attended an interview on 24 October 2012 at Campbell Page’s offices. Both parties also accept that the purpose of the interview was to discuss the EPP Ms Housego had entered on 6 March 2012 and to agree a new plan. The appointment took place with Ms Michelle Harris, an employee of Campbell Page, who has since left the firm.
Ms Harris was not called to give evidence by the Respondent. Her address is apparently not known to the Respondent or to her former manager at Campbell Page, Ms Thompson (who did attend to give evidence). Ms Housego had indicated in a directions hearing that she might summons Ms Harris, but at the main hearing she informed me that she had been unable to find any address for her. In the circumstances, I do not draw any inference adverse to either party from Ms Harris’s absence.
Ms Harris’s report
In her so-called participation report,[3] Ms Harris records that Ms Housego was asked to leave the premises on 24 October 2012 “due to being very argumentative and refusing to listen and enter into activity”.[4] “Activity” refers to a so-called “work experience phase” activity, which may take the form of either a voluntary work placement or completion of a training course. An activity of one or other type was a critical element of the proposed EPP.
[3] Exhibit R1,T13 pages 84-86. A “participation report” is an online record made by Campbell Page staff in respect of interviews with Newstart allowance recipients.
[4] Exhibit R1,T13 page 85.
Ms Harris records that Ms Housego became quite loud and abusive toward staff members in the room. She states that Ms Housego was asked to leave when she began to use offensive language. The report asserts that Ms Housego was advised several times of her options but refused to negotiate a suitable activity. The report also refers to Ms Housego’s failure to attend a job interview at Myer.
Ms Housego’s diary
Ms Housego tendered extracts from her diary.[5] In her first written submission, she says she was advised by a firm of solicitors to keep one.[6] The diary extracts were tendered as her record of events as they unfolded. In my opinion, they largely confirm Ms Harris’s participation report.
[5] These, together with Ms Housego’s first written submission, were received as Exhibit A1.
[6] Exhibit A1, page 2.
According to the diary extracts, on 24 October 2012, Ms Housego understood she had reached the next stage of the “plan” and was shown training course options on a computer screen. (Presumably, the person who showed her these options was Ms Harris.) She was expected to choose from them.
Ms Housego notes that the possibility of voluntary work was raised with her and that she replied:
“Well if I’m not volunteering, it’s not volunteer work is it?”
Another Campbell Page staff member was called into the room. Ms Housego notes that she was “getting a little bit worked up….not angry….just annoyed…”. She further records:
“You know it’s pointless doing courses in work I’ve already had jobs in…and it basically got to…well I don’t think any of that’s suitable….”
I think it is clear that Ms Housego had put to Ms Harris that none of the courses on offer was “suitable”, and that she implied she was unwilling to do voluntary work. Indeed, Ms Housego explained in her first written submission that she would not “aid and abet certain business groups in society to profiteer” from her time as an unpaid volunteer, a view which indicates a very firm opposition to this option.
Ms Housego then records in her diary that Ms Harris had put to her that she (Ms Housego) had deliberately missed a job interview that had been arranged for her. (This appears to be a reference to the interview at Myer mentioned by Ms Harris in her participation report.) Ms Housego records that this annoyed her and that she later said “What is this Bullshit?”[7] or she may have said “shit”. She notes that she could not remember which word she used. Ms Housego’s diary marks this as the point at which the staff members present required her, angrily, to leave the office. She also records that she asked them what was wrong with these words.
[7] Exhibit A1.
In her oral evidence, Ms Housego denied that she had used either word and that she would most likely have used a “lesser” word like “crap”. From her evidence I infer that Ms Housego accepts, contrary to the extracts, that the words her diary says she used could be offensive. I do not accept her evidence, however, that she did not use either word. I prefer the diary extract.
As I have already indicated, I find Ms Housego’s diary largely supports Ms Harris’s version of events. I find that on 24 October 2012, Ms Harris terminated the interview once Ms Housego had begun to use language the staff members present found offensive.
I am not persuaded that terminating the interview in these circumstances was an unreasonable response. The language that Ms Housego records she used could well have been offensive to the staff in attendance. In drawing that conclusion, I accept that the staff of Campbell Page may well often hear coarse language. I also accept that coarse language is frequently used without any hostility being intended.
Equally, however, coarse language can signify a degree of hostility that is incompatible with a meaningful discussion. Whether it signifies this degree of hostility will depend on the context in which the language is used, including what has already passed in the conversation, and on tone.
In the context of a conversation where Ms Housego admits she was annoyed, and where she had expressed a clear reluctance to participate in voluntary work and had indicated none of the courses offered by Campbell Page was suitable, I accept that Ms Harris’s response to terminate the interview when she did was more likely than not reasonable. It may not have been the only response open to her, but it was a reasonable one. On the evidence before me, Ms Harris could well have interpreted the language Ms Housego’s diary says was used as a quite hostile indication that Ms Housego would not participate constructively in further discussion and, in particular, that she would not conclude a new EPP which incorporated one of the training courses on offer or a voluntary work- experience placement. In this regard, I note that I am not satisfied that Ms Housego suggested any positive proposal of her own to Campbell Page to solve the impasse caused by her resistance to all options presented to her.
I do not accept Ms Housego’s submission that the interview ended because Ms Harris had refused to provide her with a printed copy of the options so that she could better understand them. Her diary records that she had made this request, but, as I have indicated, it also makes clear that she did not wish to participate in voluntary work or undertake any of the training courses on offer. Her diary records it was the suggestion she had missed a job interview deliberately that provoked her to respond in a way that brought the meeting to an end.
I would add that on the evidence before me, I do not find that Ms Harris ought not to have implied that Ms Housego had deliberately missed the job interview. No doubt, that imputation could be seen to be unfair by an innocent person. Ms Housego may well have had a legitimate excuse for missing the interview.[8] She could not reasonably conclude, however, that it was no part of Campbell Page’s responsibility to question why she had missed an interview arranged for her benefit or to allege plainly that she had deliberately missed it when that was the agency’s suspicion. Ms Housego was obliged to attend interviews under the existing EPP.[9] It was up to Ms Housego to reject the allegation in an appropriate way. She chose, instead, to respond inappropriately.
[8] Her diary implies she did miss the interview: see Exhibit A1, entry for 24 October 2012.
[9] Exhibit R1, T7 page 52.
Conclusion
On the evidence before me, I find the interview on 24 October 2012 was reasonably terminated by Ms Harris because of Ms Housego’s conduct at the interview. I also find that Ms Housego had failed at this interview to enter into the new EPP although she had been required to do so: s 42E(1) and (2) of the Administration Act. There was a “connection failure” at this point.
I would add that when Ms Housego left the offices of Campbell Page, and having had time to reflect on events, she ought to have realised that her conduct had been unhelpful; that a revised EPP was intended to further her prospects of obtaining paid work (whether or not she believed that that would end up being the case); and that it was important that she should do her best on the next occasion to seek to progress the new EPP.
In my opinion, Ms Housego should also have investigated for herself any courses of interest to fulfil the “work experience phase” requirements of a revised EPP. She could not reasonably reject all that Campbell Page was suggesting without putting a clear counter-proposal for consideration.
(2) Was there a connection failure at the interview on 8 November 2012?
Interview on 5 November 2012
The parties agree that Ms Housego attended an interview on 5 November 2012. I note that the failure of the parties to agree an EPP on this occasion is not alleged by the Respondent to constitute a “reconnection failure” by Ms Housego. The interview does, however, form part of the background against which Ms Housego’s conduct at the interview on 8 November 2012 should be viewed.
An employee at Campbell Page[10] recorded in the Respondent’s computer file (to which Campbell Page had access) that Ms Housego did not enter into an EPP and that she was given 24 hours to think about the options on offer; namely, a work experience placement or a training course including certain online courses called “Leap Learning”.[11]
[10] Who that person was is not clear.
[11] Exhibit R1, T13 page 90.
Ms Housego’s diary extract for that date, which forms part of another exhibit, is consistent with this record.[12]
[12] Exhibit A3, page 8.
I believe Ms Housego left the interview understanding that she was expected on the next occasion to enter into an EPP. I do not need to make any further findings about the events at this interview.
Interview on 8 November 2012
It is convenient to set out Ms Housego’s version of events first. Ms Housego’s diary records that she attended a further interview with Campbell Page on 8 November 2012. The diary confirms again that Ms Housego resisted agreeing the “work experience phase” of the new EPP. Her diary records an assertion by her that she would not do something for which she had received an exemption earlier. This was apparently a reference to the training courses which were on offer, but which she believed she was not required to complete under her existing EPP.
According to the diary, an unproductive exchange took place between Ms Housego and Ms Thompson (the office manager, who was conducting the interview) in which Ms Housego asserted that the existing EPP could not be changed until she agreed to it; whereupon Ms Thompson retorted that she, Ms Thompson, could change it every week if she liked; after which Ms Housego responded that she was not aware of any court that would grant her that type of power.[13] If that was the tenor of the exchange, it was an unhelpful start.
[13] Exhibit A1.
Importantly, Ms Housego then proceeds to note in her diary the next phase of the meeting:
“… and as usual when business acumen is lacking and being represented by the next street thug the government can contract for them, … they (i.e. meetings) end fairly quickly with me. …”
Ms Housego did not have a convincing response when this part of the diary extract was put to her and in particular when her attention was drawn to the phrase “they end fairly quickly with me”. I think the extract shows that Ms Housego had formed a low opinion of Campbell Page and that she decided the meeting should come to an end. The remainder of the diary extract confirms that she did not intend to negotiate a new EPP on this occasion.
In drawing this conclusion, I appreciate that the language used in the diary may well reflect the heat of Ms Housego’s immediate anger. Nevertheless, after making due allowance for that, I believe it is clear that Ms Housego had by this stage developed quite some hostility to Campbell Page and that this hostility impeded constructive dialogue.
Ms Housego’s diary also notes her view that the Department could “try to put a breach through”.[14] From this I infer that she understood the meeting had once again failed and that Campbell Page would be likely to take an adverse view of her behaviour.
[14] Exhibit A1, entry for 8 November 2012.
In addition, there is no evidence before me that Ms Housego suggested any definite training course or voluntary work placement for Ms Thompson’s consideration. In my opinion, Ms Housego should not have attended this interview without a concrete proposal of her own. By this stage, she clearly knew what Campbell Page had to offer.
Ms Thompson’s testimony
Ms Thompson was called as a witness and was cross-examined by Ms Housego. Ms Thompson was unable to give an account of the interview of 8 November 2012 without constant reference to a document containing her notes. I doubted her ability accurately to recall the interview. I did not find her oral evidence to be of assistance.
Ms Thompson’s written record
On the other hand, I do not doubt that Ms Thompson honestly recorded her account of the interview in the computer system. That entry records[15] that Ms Housego spoke over her and that she accused Campbell Page of violating her rights.
[15] Exhibit R1,T13 page 91.
In my view, this version of events is consistent with Ms Housego’s diary extract. The diary extract implies the interview was unconstructive and that its overall tone was poor. In the T documents,[16] there is a record of a phone call Ms Housego made on 1 November 2012 to the Respondent’s Department querying her position. On that occasion, the operator taking the call (in Tweed Heads) recorded that Ms Housego claimed a requirement to participate in voluntary work would be “a violation of her human rights”.[17] I have no reason to doubt the accuracy of this record. The fact that Ms Housego had recently raised with the Department a violation of her human rights makes it more likely that she raised the same issue with Ms Thompson.
[16] Exhibit R1.
[17] Exhibit R1, T16 page 142.
Ms Housego’s criticisms of the interview
Ms Housego, through her cross-examination, did make two partially valid criticisms of the conduct of this interview, but they do not alter my ultimate conclusion. First, I accept that Ms Housego could have felt surprised that Ms Thompson had not read her resume before the interview. On the other hand, the interview was an opportunity for Ms Housego to discuss salient features of the resume if she wished and to explore any work-experience options or courses that might be of particular relevance. This discussion was not closed to her.
Secondly, I accept Ms Housego’s observation that, in the final analysis, an EPP is not a voluntary arrangement “negotiated” between freely acting parties. Newstart allowance recipients are not generally free to decline to enter into an EPP. To this extent, the term “negotiate”, when used in the Act[18], is not entirely apposite.
[18] Cf s.605(3)(b) of the Act.
On the other hand, a Newstart allowance recipient may persuade the Respondent’s department that an EPP would impose an inappropriate obligation,[19] although what is inappropriate is not assessed solely by reference to the recipient’s own views. In addition, according to Ms Thompson’s evidence, which I accept in this respect, clients were always free to suggest their own training activities or work experience options to Campbell Page. I am not satisfied Ms Housego brought to the interview any definite suggestions of her own. Instead, she chose simply to reject all options being put to her.
[19] Section 606 of the Act and s 42H(3)(a) of the Administration Act.
Conclusion
I find that Ms Housego, through her own conduct, brought about the end of any productive discussion at this interview. Ms Thompson was justified in not progressing matters further at the interview. The Respondent’s contention that Ms Housego was ultimately responsible for the breakdown of the interview because she would not accept a voluntary work-experience placement or any of the training courses on offer is substantiated on the evidence. I find that there was a “reconnection failure” at this interview. Ms Housego had continued to refuse to enter into an EPP and had not remedied her earlier “connection failure” of 24 October 2012.
(3) Was there a connection failure at the interview on 21 November 2012?
Ms Housego’s diary
I need refer only to Ms Housego’s diary. The Department’s records are scant but her diary extract is consistent with them.[20]
[20] Exhibit R1, T10 page 65.
Ms Housego accepts that an interview took place on 21 November 2012 with Ms Harris and that there was a discussion around a training course. She records in her diary that “… the bullshit started…” and “it just went straight back to last week and the paperwork for the training course… which I haven’t agreed to …”.
I note that it could not have been a surprise to Ms Housego that on this, the fourth interview called to finalise the EPP, Campbell Page still expected her to agree to a voluntary work placement or one of the training courses on offer.
The diary then records that she was asked to supply an email address in connection with the training courses on offer. She first responded that she did not want to supply an address, but eventually offered her “Yahoo!” email account. She admitted that this account was one that she checked only occasionally. She maintains another one for her music interests, but she chose not to give it to Campbell Page, although it is one she checks regularly.
I find her stance here was inconsistent with a constructive negotiation.
Her diary records that she was becoming annoyed and that she became particularly annoyed when the new EPP would not be printed off before she had chosen a training course. Ms Housego records that she got up, “really quite annoyed”, left the meeting and “screamed” at staff in the reception area. She was then asked to leave.
Conclusion
I find that Ms Housego terminated the interview of her own accord because she had become angry and was no longer willing to engage constructively with Campbell Page. I do not think in the circumstances there was any point in Ms Harris seeking to retrieve the interview. I find Ms Housego had again failed to enter into an EPP and that this was a further “reconnection failure”. I reject her submission that she did no more than request paperwork from staff in the reception area.
MS HOUSEGO’S OTHER SUBMISSIONS
In her second written submission to the Tribunal, Ms Housego asserts that she would not sign a new EPP which deterred her from pursuing her ambition to be an entrepreneur in the music industry. She went so far as to describe herself as a “victim” because her attempts to establish a music business suffer each time she is distracted by other obligations. She submits that the training courses on offer were of no value to her, and, as I have already indicated, she objects strongly to unpaid voluntary work.
In my opinion, these submissions do not afford a reasonable excuse for her failure to enter into an EPP at each of the three interviews in question.
Ms Housego was never required to undertake voluntary work as part of the new EPP. She was given the option of completing training courses instead of voluntary work if she chose.
Although it is not strictly necessary to do so, I would add that voluntary work can lead to paid employment and, in any event, can give the volunteer valuable experience. Employers do not necessarily “profiteer” from unpaid work as Ms Housego contends. Trainees often require extensive supervision and are often unproductive while they acquire necessary practical skills and familiarity with workplace routines. However that may be, I would reiterate that Ms Housego was not required to undertake voluntary work.
As for training courses, I accept Ms Housego’s submission that some may end up offering very little practical help to a particular unemployed person. On the other hand, some courses will increase a person’s chances of employment by improving his or her skills.
I have no evidence before me to support a submission that all the training courses on offer were irrelevant to Ms Housego’s circumstances and would not have assisted her to find paid work. There was little evidence about the content of the training courses on offer, and Ms Housego had little recall of them; but, in my opinion, it was up to her to persuade me that, objectively, they could not have assisted her to find work by improving her skills. I am prepared to assume that the courses might not have advanced her particular ambition to earn a living in the music industry, but I have no reliable evidence from her that all the courses were irrelevant to the full range of jobs (including, for example, clerical positions) that are open to her.
Moreover, I do not think that Ms Housego can reasonably submit that she was justified in refusing all the training courses on offer when she had no concrete proposal of her own to put forward to meet the “work experience phase” requirement of the EPP.
Finally, Ms Housego submits that the true cause of the failure to conclude a new EPP was Campbell Page’s refusal to supply her with a paper copy of the draft at each interview. I reject that submission. The evidence shows quite clearly in my view that Ms Housego and Campbell Page never did agree a mutually acceptable work placement option or training course. I do not accept that the absence of a printed version of the EPP impeded discussions. Discussions between Ms Housego and Campbell Page broke down for other reasons.
SUMMARY
All in all, I find Ms Housego rejects voluntary work and has decided that she will not participate in any training course she judges unsuitable. Rather than putting to Campbell Page a more suitable course she had found for herself, Ms Housego chose simply to reject what was on offer repeatedly, and, in so doing, she frustrated progress in the conclusion of the new EPP. In my opinion, Ms Housego’s behaviour at each interview was not consistent with a genuine attempt by her to reach agreement with Campbell Page.
I find that Ms Housego failed to enter an EPP on each of 24 October 2102, 8 November 2012 and 21 November 2012. I find that the failure on 24 October 2012 was a “connection failure” and the failures on 8 November 2012 and 21 November 2012 were “reconnection failures”.
WARNINGS
The Respondent was obliged to warn Ms Housego of the consequences of failing to enter into an EPP after her connection failure on 24 October 2012: s 42K of the Administration Act. I accept the Respondent’s submissions that Ms Housego was warned,[21] that she understood the requirement to enter into an EPP at the interviews which took place on both 8 November 2012 and 21 November 2012, and that she understood that a penalty might be applied to her Newstart allowance if an EPP did not eventuate.
[21] Exhibit R1, T8 at page 59.
DELEGATIONS AND CALCULATION OF PENALTY
At the end of the hearing, I asked the Respondent’s advocate to confirm the delegations that were in place and the calculation of the penalty (which was imposed for the period 8 November 2012 to 29 November 2012). A further written submission was filed by the Respondent to which Ms Housego replied.
I do not believe any issue arises in respect of the delegations. There is no need for me to set out any detail in respect of this matter.
I accept the Respondent’s calculation of $788.16 as an appropriate penalty based on a period commencing on 8 November 2012 (the date of the first reconnection failure) and ending on 29 November 2012 (the day before she remedied her failure). There was no challenge by Ms Housego to the date on which the Respondent says the period ended[22] and I accept it for the purposes of deciding her application. Finally, I note that Ms Housego’s submission that the total penalty amounts to $49.26 overlooks the fact that her calculations yield only the daily penalty rate to be imposed whilst a reconnection failure persists, not the aggregate penalty for that failure.
[22] Although she disputed there had been reconnection failures on 8 and 21 November 2012.
DECISION
The decision under review is affirmed.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Manetta .......................[Sgd].................................................
Administrative Assistant
Dated 17 March 2014
Date(s) of hearing 28 October 2013 and 2 December 2013 Date final submissions received 13 January 2014 Applicant In person Advocate for the Respondent Mr C Visser Solicitors for the Respondent Department of Human Services
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