Broadhead; Secretary, Department of Family and Community Services

[2003] AATA 663

Administrative

Appeals

Tribunal

 

DECISION AND ORAL REASONS FOR DECISION [2003] AATA 663

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/369

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And GARY MALCOLM BROADHEAD

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date2 July 2003

PlaceAdelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY –- pensions, benefits and allowances –- Newstart Allowance – whether applicant left his employment voluntarily – if so, was voluntary act of leaving his employment reasonable – whether applicant is subject to an activity test rate reduction period

Social Security Act 1991 sections 628, 644AA, 644AE

ORAL REASONS FOR DECISION

2 July 2003   Senior Member WJF Purcell           

1.      This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 5 September 2002, which set aside the decision of an Authorised Review Officer of 13 June 2002, to impose a breach for voluntary unemployment, and substituted a new decision that the voluntary act of resigning employment was reasonable. 

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the applicant (the Department), which was represented by Mr Kilderry. The Department called Ms Tonia Toomey, Operations Manager of Spotless Aged Care Services, who gave oral evidence. The respondent appeared on his own behalf and gave oral evidence.

3.      The respondent, who is 34 years of age, moved his family from Western Australia to South Australia in September 2001.  His wife’s father had been diagnosed with cancer, and the move was to allow his wife to be near him.  On 15 October 2001 he commenced employment with Spotless Services Australia Limited (Spotless) as a category 5 chef at Crystal Brook.  On 11 April 2002 he ceased his employment with Spotless.

4.      On 19 April 2002 the respondent applied for Newstart Allowance (NSA), and provided a statement regarding the termination of his employment with Spotless.  An Employment Separation Certificate was obtained from Spotless, which indicated that he had terminated his employment voluntarily, and had resigned.  The Department determined that the respondent had voluntarily left his employment, and that he would be subject to an activity test breach.  As it was his second activity test breach, he was subject to a rate reduction of 24% for 26 weeks from 9 April 2002 to 7 October 2002.  This decision was affirmed by an Authorised Review Officer and subsequently set aside by the SSAT, which substituted the decision under review. 

5.      The Department contends that the respondent’s voluntary act to cease his employment with Spotless, was not reasonable in all the circumstances.  He had secure employment.  The employer has the right to counsel staff, and the complaints against him could have been rectified easily, and he could have continued in his employment.

6. Section 644AA of the Social Security Act 1991 (the Act) provides:

“If an activity test breach rate reduction period applies to a person under this Part, the period applicable to the person is 26 weeks.”

7. Section 644AE of the Act provides:

“(1)     If:

(a)an activity test breach rate reduction period applies to a person under this Part; and

(b)       the person qualifies for a newstart allowance; and

(c)       a newstart allowance is payable to the person;

the person’s rate of newstart allowance for the activity test breach rate reduction period is worked out as follows:

Newstart allowance rate calculator for activity test breach rate reduction period

This is how to work out a person’s rate of newstart allowance for an activity test breach rate reduction period that applies to the person.

Method statement

Step 1. Work out the person’s maximum basic rate of newstart allowance specified in:

(a)        Table B of Module B of Part 3.5 (Benefit Rate Calculator A); or

(b)        Table B of Module B of Part 3.6 (Benefit Rate Calculator B):

the result is called the maximum payment rate.

Step 2. Work out the rate reduction amount in accordance with subsection (2).

Step 3. Take the rate reduction amount away from the rate of benefit worked out in accordance with Benefit Rate Calculator A in section 1067 or Benefit Rate Calculator B in section 1068, as the case requires:

the result is called the activity test breach reduced rate.

Note:   An activity test breach reduced rate may be a nil rate.

(2)       A person’s rate reduction amount is worked out as follows:

(a)if the activity test breach is the person’s first breach in the 2 year period:

(b)if the activity test breach is the person’s second breach in the 2 year period:

(3)     In this section:

2 year period means the 2 years immediately before the day after the activity test breach.

Subdivision B - Administrative breach reductions in the rate of newstart allowance”

8. Section 628 of the Act provides:

“If:

(a)a person’s unemployment is due, either directly or indirectly, to a voluntary act of the person (the voluntary act); and

(b)the Secretary is not satisfied that the person’s voluntary act was reasonable;

then:

(c)if the voluntary act is the person’s first or second activity test breach in the 2 years immediately before the day after the voluntary act - an activity test breach rate reduction period applies to the person; or

(d)if the voluntary act is the person’s third or subsequent activity test breach in the 2 years immediately before the day after the voluntary act - an activity test non-payment period applies to the person.”

9.      The respondent said in evidence that from the first week as manager of the kitchen, there were issues with stolen money and food pilfering.  He made suggestions for improved security, but the immediate supervisor was unsupportive, and nothing was done to secure the food stocks.  There were comments from management about the food costings being over budget, but with no control over pilferage, there was limited room for improvement.  At no time was he the subject of counselling sessions regarding his work performance or was it ever suggested that his work performance was inadequate, or that his employment was in jeopardy if his performance did not improve.  He said that he was being undermined constantly by the kitchen hand, Pauline, who had been replaced by him in the position of chef.  He considered that any complaints that did arise, came from her.

10.     On Thursday 11 April 2002, the day before the hostel was about to start a 2 weeks’ school holiday break, Ms Toomey and Mr Craig Auricht, the Area Manager, were to have a meeting with the respondent.  Ms Toomey met with the managers of the complex, and Mr Auricht conducted the session.  The respondent said that there were comments about his work performance, and that this was the first time he had ever heard such comments.  He said in evidence that Mr Auricht was aggressive and rude, and made disparaging personal comments about him, regarding his personal hygiene, and that he needed to shave.  The respondent said in evidence that he was happy to leave if they were not happy with him, but on his own terms, that he could resign and look for a job.  He says the conversation was very short, a matter of 5 minutes only, and that he said he would resign.  Mr Auricht said that they did not want him to resign, and later told him that if he did not sign the form of resignation he would not be paid.  That is the only reason, the respondent says, he signed the form of resignation.

11.     Ms Toomey gave evidence, which I accept, that the meeting was intended to be a counselling session; that the respondent’s job was not at risk, and that it was the Company’s policy to have 3 counselling sessions in relation to the same complaint or deficiency before dismissal would be considered.  I accept her evidence also that she returned to the kitchen area as the respondent came out of his office.  She said that he was very angry, very upset and wanting to leave immediately. 

12.     I accept Ms Toomey’s evidence that the meeting was to be a counselling session.  I am satisfied that the respondent had no prior knowledge of this, and thought it was an introduction to Mr Auricht who was taking over Mr Toomey’s role.  He had recently been subject to extreme family pressures with illnesses of his father, and his wife’s father.  He clearly overreacted, and perceived that his job was under threat, and with no prior knowledge of the complaints alleged against him, he did not react in a considered manner.  From an objective point of view, his job was not under threat; as Ms Toomey said in evidence, it is very hard to obtain the services of a good chef in Crystal Brook.  I accept the respondent’s evidence however, that in his circumstances with 2 young children, and his wife pregnant with their third child, he in effect panicked, or “saw red”, and perceived that the only way he could ensure that he was paid, was to sign the resignation form. 

13.     I agree with the reasoning of the SSAT, that in all the circumstances of this matter, the respondent’s voluntary act of resigning his employment was reasonable.  For these reasons the Tribunal affirms the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .......................................................................................
  Associate

Date/s of Hearing  2 July 2003
Date of Decision  2 July 2003
Counsel for the Applicant         Mr R Kilderry
Solicitor for the Applicant          Service Recovery Team
Counsel for the Respondent     In person
Solicitor for the Respondent     -