ASHLEY FURNER and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 56

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 56

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3228

GENERAL ADMINISTRATIVE DIVISION		)
Re		ASHLEY FURNER

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date28 January 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

...................[Sgd]......................

Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Newstart allowance – Participation failure – Whether applicant unemployed due to a voluntary act – Applicant unemployed due to voluntary act – Whether applicant has reasonable excuse – Applicant does not have reasonable excuse – Decision under review affirmed

Social Security Act 1991 (Cth) ss 593(1), 629(1)

REASONS FOR DECISION

28 January 2009 Dr M Denovan, Member    

INTRODUCTION

1.      Mr Ashley Furner, the applicant, was employed by Siganto & Stacey Pty Ltd as a casual, from 23 April 2007 until 25 September 2007. He seeks review of a decision that he abandoned his employment and that he did not have a reasonable excuse for doing so, a decision made on 1 November 2007, and affirmed on 2 January 2008.

BACKGROUND

2.      Mr Furner, currently 25 years old, ceased work on 25 September 2007 and lodged an application for newstart allowance on 30 October 2007.

3.      An Employment Separation Certificate provided by Siganto & Stacey indicated that Mr Furner last worked on 25 September 2007 and that he abandoned his employment.

4.      Mr Furner lodged a Centrelink questionnaire on 30 October 2007, in which he states that he stopped work because he injured his right wrist, was sick with the flu and injured his left thumb and he did not show for two weeks.

5.      Centrelink determined that Mr Furner did not have a reasonable excuse for abandoning his employment. It imposed an eight week non-payment period against him, covering the period 25 September 2007 to 1 November 2007.

6.      On 11 March 2008 the Social Security Appeals Tribunal (“the SSAT”) affirmed the decision under review.

7.      On 8 July 2008 Centrelink imposed an eight week non-payment period from 26 June 2008 to 29 July 2008.

8.      On 28 July 2008 the Tribunal granted Mr Furner’s application for a stay order. His newstart allowance was restored with effect from 26 June 2008.

RELEVANT LEGISLATION

9. Section 593(1) of the Social Security Act 1991 (“the Act”), sets out the requirements for a person to qualify for newstart allowance. As part of those requirements, a person must actively be seeking and willing to undertake paid work.

10. Section 629(1) of the Act sets out what is called “serious participation failures”. If a person is found to have committed a serious participation failure, newstart allowance is not payable for eight weeks. Where a person (i) is unemployed due either directly or indirectly to his or her voluntary act or (ii) has refused or failed without reasonable excuse to accept a suitable offer of employment, a serious participation failure is deemed to have occurred. The Social Security (Reasonable Excuse) (DEWR) Determination 2006 provides matters for consideration when assessing whether a person has a reasonable excuse.

THE APPLICANT’S EVIDENCE

11.     Mr Furner gave evidence at the hearing that he came to be employed with Siganto & Stacy through a friend who was a good friend of the boss. Mr Furner said that he injured his wrist some weeks before he ceased work. He reported the injury to his employer who allocated him to a different job. Mr Furner said that because of this injury he had a “heap of time off work”. He informed the Tribunal that he could have kept working but his wrist was too painful. Mr Furner said that he carried on working until he became “jack of it”, and he also had the flu. Mr Furner agreed that he was able to return to his job but did not do so. He said that his friend, the one that helped him to get the job, told him that if he came in his employer would fire him. Mr Furner said that he did not consider validating his friend’s claim with his employer; however, he said that he probably should have in hindsight. Mr Furner saw the physiotherapist at his work, but did not consult any doctor about either his wrist or his flu.

ISSUE

12.     It is not in dispute that Mr Furner voluntarily left work at Siganto & Stacy on 25 September 2007. The issue is whether he had a reasonable excuse for doing so.

CONSIDERATION OF ISSUE

13.     Mr Furner injured his wrist on 24 August 2007. A report dated 4 September 2007 and headed “Siganto & Stacey Work Injury Prevention Program” indicates that Mr Furner’s wrist hurt when twisted. Mr Furner did not attend a doctor for either his wrist or flu, so there is no medical evidence to validate his claim that his wrist and flu symptoms interfered with his capacity to work. In any event, I am of the view that neither Mr Furner’s wrist injury nor his flu could be described as an illness or impairment requiring frequent treatment.

14.     That Mr Furner acted on the advice of his friend, and abandoned his employment without consulting his employer about his future employment options, was his personal choice. His voluntary conduct lead to him being not offered or considered for ongoing employment. There is no evidence to validate Mr Furner’s claim that he would have been dismissed had he turned up for work. The claim is also inconsistent with the information provided by his employer. A report from Mr Thomas Bennett of Siganto & Stacey dated 24 October 2008 states that Mr Furner lost no time at work due to the injury.

15.     The SSAT decision reports Mr Furner’s mother as indicating that Mr Furner was psychotic and using drugs on the morning of the SSAT hearing. There is no contention or evidence to the effect that psychosis or drugs had any contribution to Mr Furner abandoning his job.

16.     Mr Furner has not shown that he had a reasonable excuse for abandoning his ongoing employment on 25 September 2007.

DECISION

17.     The Tribunal affirms the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member.

Signed: ........................[Sgd]...............................................
  Michael Buckingham, Associate

Date of Hearing  12 December 2008
Date of Decision  28 January 2009
Applicant was self-represented
Advocate for the respondent     Mr R McQuinlan, Centrelink