Artner and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 1072

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1072

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0821

GENERAL ADMINISTRATIVE DIVISION		)
Re		John Artner

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Mr G. L. McDonald, Deputy President

Date2 December 2008  

PlaceMelbourne

Decision The decision under review is affirmed.

..............................................

Deputy President

CATCHWORDS

SOCIAL SECURITY – Social Security Act – Newstart allowance – whether there was a participation failure – whether the applicant failed to comply with a Newstart Activity Agreement – whether applicant failed to continue with a labour market program – whether applicant was dismissed from the labour market program for misconduct – whether applicant had a reasonable excuse for the participation failure – decision under review affirmed

Administrative Appeals Tribunal Act 1975 s 37

Social Security Act 1991 ss 593, 606 and 624

REASONS FOR DECISION

2 December 2008 G. L. McDonald, Deputy President

The Application

1.      The applicant is appealing against a decision of the Social Security Appeals Tribunal affirming a decision to impose a participation failure due to the applicant failing to comply with a term of a Newstart Activity Agreement on 18 April 2007.

The Hearing

2. The Tribunal has before it the documents filed for the purposes of s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents and ST documents). The applicant was self-represented. Mr Artner tendered his handwritten notes taken on 18 April 2007.[1]  The respondent was represented by Mr Andrew Carson of Centrelink Legal Services Branch.  Ms Lynn Johnson, Director of Juno Consulting, gave evidence on behalf of the respondent via telephone.

[1] Exhibit A1.

Background And Relevant Legislation

3.      On 27 March 2007 the applicant was in receipt of Newstart allowance.  Newstart allowance is paid to a person who is unemployed (s 593(1)(a)(i) of the Social Security Act 1991 (the Act)). The applicant was required to enter into a Newstart Activity Agreement (the agreement) and having entered into the agreement needed to be able to satisfy the Secretary that he is complying with the terms of the agreement while it is in force (s 593(1)(e) and (f)). An agreement is a written document between the Secretary and person who is in receipt of the Newstart allowance which requires the person to undertake one or more activities which the Secretary regards as suitable for the person (s 606(1)).

4. A Newstart participation failure occurs when a person breaches one or more of the matters set out in s 624(1) which, among other things, characterises as a failure the non compliance with the term of the agreement (s 624(1)(d)) and the failure to continue involvement in a labour market program because he/she withdraws voluntarily or is dismissed from the program for misconduct (s 624(1)(g)). There are no definitions in the Act for either ‘labour market program’ or ‘misconduct’. Accordingly the words must be given their ordinary meaning as considered in the context of the section. Section 624(2) provides that if a person satisfies the Secretary that he/she has a reasonable excuse for a failure his/her breach may not be treated as a failure.

5.      On 19 March 2007 the applicant entered into an agreement.  There were a number of activities set out in the agreement which he was to fulfil, including, that he attend a two day workshop to be run by Juno Consulting commencing on 18 April 2007 between the hours of 9.30 am and 4.30 pm.[2]

[2] ST documents, ST2, page 81.

6.      On 18 April 2007 the applicant attended the workshop.  The workshop was run by Ms Lynn Johnson of Juno Consulting.  At least two other trainers were present and there were approximately 17 people who were to participate in the workshop.

7.      The applicant presented wearing, as he described, it ‘bud’ earphones[3] with leads from his ears which he told the Tribunal were attached to a radio.  The radio was concealed in his clothing.  The workshop activity consisted of a lecture, the main points of which were highlighted by slides displayed on a screen.  The participants were given a hard copy of the material displayed on the screen at the commencement of the workshop.

[3] Exhibit A1.

8.      Soon after the workshop commenced the applicant was prompted he says by being poked in the back to remove his earphones.  He claimed he could hear what was being said and refused to remove them.  After approximately an hour Ms Johnson, the presenter, after requesting the applicant to remove his earphones, handed the presentation to another person and asked the applicant to step outside. 

9.      After some confusion a separate room was found and the applicant was informed that unless he removed the earphones he would not be permitted to return to the workshop.  The applicant claimed that Ms Johnson refused to accept his assurance that he could hear perfectly well with his earphones attached.  The applicant stated that Ms Johnson said words to the effect that wearing earphones was not ‘business like’ and would not assist in his presentation to any prospective employer.

10.     In notes prepared on same day the applicant recorded “… I was disappointed that [after] I had browsed through the Juno documentation … 99% of the info was already covered in the job seeker training 10 day course [that I attended] … 12 months ago”.[4]

[4] Exhibit A1.

11.     The applicant claimed that Ms Johnson said she would be giving further information in the workshop and that she declined when asked by him, to give him a copy of any further written material to be handed out over the two day period.

12.     The applicant refused to remove his earphones upon which Ms Johnson refused to readmit him to participate in the presentation, the applicant left the building.  He did not return on the following day.

13.     On behalf of the respondent it is submitted that by failing to remain at the course over the two day period the applicant failed to comply with one of the mandatory terms of the agreement (s 624(1)(d)), that there was no reasonable excuse for him not doing so and that consequently there has been a failure to comply (s 624(2)).  On the other hand the applicant maintains that he was ready and willing to participate in the course but was unreasonably excluded by the presenter from participation and in those circumstances he could not be regarded as failing to comply.

The Tribunal’s Consideration

14.     The first thing to address is whether there has been failure to comply with the terms of the agreement entered into between the applicant and the Secretary.  The applicant was required to attend the course for the two day period of the 18 and 19 April 2007.  He attended but was excluded from participating as the result of refusing to remove earphones.  Any failure is more appropriately decided by reference to the circumstances which led to him being excluded than it does by his failure to attend.  He did not voluntarily remove himself but on the evidence was asked not to return unless he complied with a direction of the course presenter.  He refused to do so and was informed that he could not participate.

15.     He will only have failed to comply with the terms of the agreement if:

(a)he has failed to continue with a labour market program, and;

(b)he has been dismissed from the labour market program for misconduct for which he has no reasonable excuse.

16.     The question then is whether the participation in the workshop is ‘involvement in a labour market program’?  The aim of the course seems to have been to provide information to the participants about what types of positions may be available and how those participants could place themselves in the best possible situation to attract an employer.  The words ‘labour market’ have different connotations depending on the context in which they are used.  The shorter Oxford English dictionary defines labour market as “supply of unemployed labour with reference to demand on it”.  A reading of the division of the Act dealing with Newstart allowances makes it apparent that a person in receipt of such an allowance must make real attempts to obtain work.  That does not just mean the person should search and apply for positions which may become vacant but is broad enough to include attendance at courses such as that the applicant was required to undertake.  ‘Misconduct’ is generally perceived as ‘improper conduct’, and it too has a broad range of application depending on the circumstances involved.

17.     On the facts of this case the Tribunal is satisfied that given the purpose of the workshop it was improper for the applicant to be wearing earphones.  It displays a disregard for the presentation and presenter which in the circumstances amounts to ‘improper conduct’.  It is irrelevant to the decision that the earphones were connected to an operating radio or that the radio was turned off or indeed that the applicant could hear all that was being said by the presenter.  Nor is the decision affected by the letter from another person who attended the course who claimed that the conduct was “not disruptive” to him or to some others who were attending the course and with whom he spoke on the day.[5]  Wearing the earphones was clearly disruptive to the presenter.  The actions involve a level of disregard that is properly described as misconduct in the circumstances.

[5] T documents, T23.

18.     The next issue is whether there is a reasonable excuse for the conduct.  A note apparently made by the second person who accompanied the presenter during the discussion with the applicant before he left the premises states that when asked why he didn’t take out the earphones that the applicant replied “I don’t know”.[6]  There was no explanation given in the hearing before the Tribunal as to why he did not comply, other than to reiterate that since he could see and hear what was being said he could not see any necessity to remove the earphones.  The more likely explanation for this somewhat irrational behaviour is to be found in both the note prepared on 18 April by the person accompanying the presenter in the interview and in the notes of the applicant which both reveal him as thinking the information contained in the workshop had been given to him in a previously conducted workshop, suggesting to the Tribunal that he was not going to benefit from the two day workshop and that he was finding it unhelpful.  This does not amount to a ‘reasonable excuse’.  It certainly does not approach any of the type of matters identified by the Secretary as constituting a reasonable excuse[7] which lists among others illness, lack of language or literacy skills, drug or alcohol dependence, unforeseen family or caring responsibilities and death of a family member.

[6] T documents, T16, page 44.

[7] See Social Security (Reasonable Excuse) (DEWR) Determination 2006.

The Tribunal’s Determination

19.     For the reasons given the decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G. L. McDonald, Deputy President

Signed:         .....................................................................................
  Associate                  Grace Horzitski

Date/s of Hearing  24 November 2008
Date of Decision  2 December 2008 
Solicitor for the Applicant          Self-represented             
Solicitor for the Respondent     Andrew Carson, Centrelink Legal Services