Anthony Sultan and Secretary, Department of Education, Employment and Workplace Relations
[2013] AATA 678
[2013] AATA 678
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4804
Re
Anthony Sultan
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Mr P Wulf, Member
Date 24 September 2013 Place Brisbane The decision under review is affirmed.
[Sgd]
Mr P Wulf, Member
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – Unemployment as a result of a voluntary act – Whether work unsuitable due to medical condition – Whether distance and costs associated with travel excessive – Whether resignation reasonable – Eight week unemployment non-payment period – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 14A, 19(C), 601(2A)
Social Security (Administration) Act 1999 (Cth) s 42S
CASES
Waters v Public Transport Corporation (1991) 173 CLR 349
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
SECONDARY MATERIALS
Guide to Social Security Law, Paras 3.2.8.60, 3.1.13.80
Social Security (Administration) (Ending Unemployment Non-payment Periods – Classes of Person (DEEWR) Specification 2009 (No 1)
REASONS FOR DECISION
Mr P Wulf, Member
24 September 2013
INTRODUCTION
Mr Anthony Sultan ("the applicant")[1] seeks review of a decisions made by Centrelink on 20 February 2012,[2] where Centrelink decided that the applicant’s unemployment resulted from a voluntary act that was not reasonable and imposed an unemployment non‑payment period of eight weeks. The applicant was precluded from receiving Newstart Allowance between 21 February 2012 and 16 April 2012.
[1] Exhibit 1, T-Document 1, pp. 1-2.
[2] Exhibit 1, T-Document 4, pp. 23-25.
An authorised review officer (“ARO”) affirmed the decision on 13 September 2012.[3] The applicant was advised the non-payment period would be applied from 18 September 2012 to 12 November 2012. The ARO’s decision was affirmed by the Social Security Appeals Tribunal (“SSAT”) on 10 October 2012.[4] On 25 October 2013, the applicant applied to the Tribunal for review of the SSAT’s decision.
[3] Exhibit 1, T-Document 5, pp. 26-63.
[4] Exhibit 1, T-Document 2, pp. 3-10.
For the reasons that follow, the Tribunal finds that the applicant does not have a medical condition that precluded him from being able to undertake the employment he was undertaking and moreover, the costs of travel were not excessive. Therefore the eight week non-payment period was accurately applied and the decision is affirmed.
ISSUES AND ANALYSIS
The issues for the Tribunal in determining whether the applicant is subject to a non‑payment period are:
(a)whether the applicant leaving his employment was a voluntary act; and
(b)whether that voluntary act was reasonable.
In considering the above, the Tribunal must assess whether it was reasonable for
the applicant to voluntarily leave his employment because:
(a)he had a medical condition that precluded him from working in the morning, when he was required to work; and/or
(b)the costs of travel were excessive considering the Guide to Social Security Law.
If the applicant is subject to an eight week non-payment period in respect of his Newstart Allowance and it was reasonable for him to voluntarily leave his employment, the Tribunal must also determine whether the Secretary has discretion to end that period which depends on:
(a)whether serving the non-payment period would cause the applicant “severe financial hardship”; and
(b)
whether he is in a class of persons specified by legislation pursuant to
s 42S(5) of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
Section 42S (Unemployment resulting from a voluntary act or misconduct) of the Administration Act states:
(1) A participation payment is not payable to a person for the period mentioned in subsection (3) if the Secretary determines that:
(a) the person is unemployed as a result (whether direct or indirect) of a voluntary act of the person; or
(b) the person is unemployed as a result of the person’s misconduct as an employee.
(2) Despite paragraph (1)(a), the Secretary must not make a determination under that paragraph in relation to a person if:
(a) the Secretary is satisfied that the voluntary act was reasonable; or
(b) the person is someone to whom section 42SB applies.
(3) The participation payment is not payable to the person for the period (the unemployment non‑payment period) of:
(a) 8 weeks beginning on the initial day; or
(b) 12 weeks beginning on the initial day if, during the 6 months ending on the day immediately before the person becomes unemployed, the person has been paid relocation assistance in relation to the employment to which the voluntary act or misconduct related.
(3A) For the purposes of subsection (3), the initial day is:
(a) the day that the person becomes unemployed as a result of the person’s voluntary act or misconduct; or
(b) the first day of the first instalment period that begins after the day the Secretary makes the determination if:
(i) the Secretary considers that first day is more appropriate than the day mentioned in paragraph (a); and
(ii) the person is receiving a participation payment at the time of the voluntary act or misconduct.
…
(4) The Secretary may end a person’s unemployment non‑payment period if:
(a) the Secretary determines that serving the unemployment non‑payment period would cause the person to be in severe financial hardship;[5] and
(b) the person is in a class of persons specified by legislative instrument under subsection (5).
(5) For the purposes of subsection (4), the Secretary may, by legislative instrument, specify a class of persons.
[5] See generally s 14A and s 19(C) of the Social Security Act 1991 (Cth).
Section 42S of the Administration Act provides that a participation payment is not payable during the unemployment non‑payment period if a person became unemployed as a result of a voluntary act. The section also provides that an unemployment non‑payment period will not be imposed if the voluntary act was reasonable.[6] The Administration Act does not define reasonableness; however in Waters v Public Transport Corporation (1991) 173 CLR 349, McHugh J at 410 decided that the word reasonable should, unless subject to a contrary intention, be given its ordinary meaning. Additionally, the
Full Court of the Federal Court in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263 decided that reasonableness is to be determined objectively. I agree that standard should be applied in the present application.
[6] See s 42S(2)(a) of the Administration Act.
The applicant argued that it was reasonable for him to voluntarily leave his employment based on two factors:
(a)he has a medical condition that results in him being unable to work mornings; and secondly,
(b)the costs associated with travel to and from his place of work were excessive.
For the purposes of this matter, the Tribunal has considered these separately below.
The applicant was employed by Mastercare Cleaning (“Mastercare”). He was placed at Mastercare by Help Enterprises (“HELP”). The applicant undertook training on Thursday 19 and Friday 20 January 2012. Following his training, the applicant was to be employed up to three hours a day, and potentially three days a week undertaking cleaning.
The applicant was to attend his first official day at work on 26 January 2012; but, as it was Australia Day and therefore a public holiday, he was not required to attend. However, on 25 January 2012, the applicant advised HELP that the “employment was too far to travel and [he] wanted something closer to home”.[7] It is noted that the distance between the two locations is about 15km. On 27 January 2012, Mastercare contacted HELP and advised that the applicant had not attended his employment and that Mastercare were unable to contact him.[8]
[7] Exhibit 1, T-Document 16, pp. 131-133.
[8] Exhibit 1, T-Document 4, pp. 3-10.
The Guide to Social Security Law (“the Guide”) provides guidelines for decision makers and while the Tribunal is not bound to apply policy guidelines, it will usually do so, unless there are cogent reasons in a particular case for not doing so.[9] Paragraph 3.1.13.80 of Guide provides that all the circumstances of the case should be considered, including the suitability of the work. Paragraph 3.2.8.60 of the Guide refers to the criteria in
s 601(2A) of the Social Security Act 1991 (Cth) (“the Act”) which defines unsuitable work for the purposes of the activity test. Neither the Act nor the Administration Act require a decision maker to consider the factors in s 601(2A) of the Act for the purpose of applying s 42S of the Administration Act. However, the factors may assist in determining whether the voluntary act was reasonable. In summary, work is unsuitable if the person lacks the necessary skills or qualifications, the person’s medical condition will be aggravated by performing the work, the person is the principal carer of children and does not have access to appropriate care and supervision for the children, the work place poses a risk to health and safety, the terms and conditions are less generous than as prescribed by law, commuting to the place of work is unreasonably difficult, the work requires enlistment in the Defence Force or Reserves, or the work requires the person to move to another place.
[9] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.
In this case, the applicant’s argument is it was reasonable for him to voluntarily terminate his employment; in that the work was unsuitable on the basis that a medical condition he believed he had would be aggravated by performing the work and that commuting to the place of work was unreasonably difficult due to distance, time and cost.
As to the work aggravating a medical condition, the applicant indicated to the Tribunal that he would prefer to work afternoons as he had trouble sleeping and this was based on a medical condition. The applicant suggested to the Tribunal that the reports of psychologist Ms Anne Moorhouse,[10] provided evidence that he suffered from the condition. Moreover, the applicant relied on a medical certificate from Dr Malcolm Ash which he said also indicated that his medical condition precluded him from working mornings.[11]
[10] Respondent’s Further Submissions, Attachments B (dated 6 May 2011) and D (dated 21 October 2011).
[11] Exhibit 1, T-Document 8, p. 69.
The Tribunal has carefully read the two reports by Ms Moorhouse. There is nothing in the reports that would suggest the applicant has a medical condition related to his suggestion he had trouble sleeping. The report is clear in its diagnosis of the applicant, suggesting that he has an intellectual deficit and/or a learning disability, but that these were not medically based. Specifically the reports stated that no medical conditions were identified for the applicant. The only suggestion that the applicant had a medical condition was provided some five months after the time of his employment by Dr Ash. The medical certificate in question is very broad in nature and only states that the applicant would be unfit for morning work from 2 July 2012 to 31 June 2012, some six months.
While acknowledging that Dr Nash has provided the report, the Tribunal is concerned as to the accuracy of this assessment and the extent of time provided by the medical certificate. The applicant indicated to the Tribunal that he had only seen the doctor who prescribed the medical certificate once prior to the relevant appointment and moreover, no tests were undertaken to determine that the applicant was unfit for working in the morning. On this basis, the Tribunal is not swayed by the applicant’s argument as to the work being unsuitable based on medical grounds. There was nothing at the time of the applicant’s employment to suggest he had a medical condition and more importantly, his reasoning for suggesting the work was unsuitable related in no way to a medical condition.
As to the second matter, the applicant argued that the costs he would incur for travel and the time it would take to get to work were excessive. The applicant’s submitted that the costs to attend the employment were greater than 10% of the gross wage offered, as per the reasonable travel time provisions contained within the Guide.
The Guide indicates that there are three provisions that need to be assessed in determining whether the employment is reasonable as to travel:[12]
A job would be regarded as within reasonable commuting distance for job seekers assessed as having a partial capacity to work if:
·the journey between the place of work and the job seeker's home does not normally exceed 60 minutes each way by whatever means of appropriate transport is normally available to the job seeker, AND
·the cost of travel by their normal means of transport does not exceed 10% of the gross wage offered, AND
·the travel does not aggravate, or is made unreasonably difficult by the job seeker's illness, injury or disability.
[12] Para 3.2.8.60 of the Guide.
As to the first limb, the applicant agreed that the time taken to travel, the approximately 15km was about 30 minutes at a maximum and therefore any claim as to him complying with this provision would fail.
The applicant therefore relied on the second limb of the provision, this being that the cost of travel would exceed 10% of the gross wage offered. The applicant advised the Tribunal that he would be paid approximately $20/hour for his cleaning work.
The respondent conceded that was likely to be an accurate reflection of the amount to be paid. On that basis, and considering the applicant was to be employed three hours a day, an amount of $60 is accepted as the gross wage offered per day. Therefore, the costs of travel cannot exceed $6 by the applicant’s normal means.
There are two aspects that are important in considering the costs of travel. The first relates to the actual costs likely to be incurred by the applicant. The evidence was that the applicant owned a Ford Falcon motor vehicle. Based on the Tribunal’s knowledge, it was suggested that the amount of fuel that would be used to travel the 15km would be about two litres each way. The applicant said it would be at least four litres of fuel, although considering the time of day when the travel would have been undertaken, the Tribunal finds that an exaggeration. Based on two litres and a cost of petrol being about $1.50/litre, the Tribunal would be of the view that a return trip would cost approximately $6 in total. Notwithstanding this calculation, the Tribunal is willing to accept that it is possible that the cost of travel may exceed the 10%, slightly.
With respect to the current situation, while it is noted that the costs of travel may exceed 10% of the gross wage offered, it is also noted that the applicant was provided with a $25 fuel card from HELP when he commenced his employment with Mastercare. Based on this factor, it would appear that the applicant did not have any costs in relation to fuel to travel to work for approximately four days and this would appear to show that the applicant’s argument as to costs should fail.
Following the hearing, the parties were provided the opportunity to make further submissions in relation to, among other things, the reports of Ms Moorhouse and aspects in relation to the costs of travel. The respondent provided an email from Ms Andrea Johnson from Help.[13] In that email, Ms Johnson indicated that Help would have continued to provide the applicant with additional fuel cards every two weeks to the value of $20. During a telephone directions hearing following the receipt of the respondent’s further submissions, the applicant was asked whether he wished to cross-examine Ms Johnson as to the email at a continued hearing. By email, the applicant indicated that he did not wish to cross-examine the evidence and on this basis, the Tribunal accepts that evidence on its face.
[13] Respondent’s Further Submissions, Attachment F (dated 24 July 2013).
Based on the above, the Tribunal is of the opinion that the fuel card provided to the applicant prior to the commencement of his employment with Mastercare and the subsequent fuel cards that would have been provided by Help would not have placed the applicant in a position that his travel costs would have exceeded 10% of his gross wage and therefore his argument must fail.
Section 42S(4) of the Administration Act allows the Secretary to end the unemployment non‑payment period if serving it would cause severe financial hardship and the person is within a class of persons specified by the Social Security (Administration) (Ending Unemployment Non-payment Periods – Classes of Person (DEEWR) Specification 2009 (No 1). Section 14A(7) of the Act, as it was at the relevant time, provides that a person is in severe financial hardship if the person’s liquid assets do not exceed the person’s maximum reserve. The maximum reserve is defined, relevant to applicant, as $2,500.[14] The classes of persons to whom s 42S(4) applies are those with significant family and caring responsibilities, the ill or impaired who are unable to afford treatment after essential expenses, those with cognitive, neurological, psychiatric or psychological illness, and those who do not have access to safe, secure and adequate housing.
The applicant conceded he was not a person that suffered from severe financial hardship.
[14] See s 14A(1) of the Act.
CONCLUSION
The applicant is unemployed because he resigned from his employment. Accordingly, his unemployment is the result of a voluntary act. Viewed objectively, none of his reasons alone or in combination for resigning were reasonable. Therefore, the unemployment non-payment period of eight weeks was correctly imposed in accordance with s 42S of the Administration Act. Accordingly, the decision under review is affirmed.
I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member ......................[Sgd]..................................................
Associate
Dated 24 September 2013
Date of hearing 24 July 2013 Date final submissions received 5 August 2013 Applicant In person Solicitor for the Respondent Mr Joe Guthrie, Departmental Advocate
Key Legal Topics
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Interpretation
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