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

[2008] AATA 1169

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1169

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4649

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALLAN CLANCEY

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date24 December 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart participation failure – failure to comply with the terms of an Activity Agreement – no reasonable excuse – decision under review affirmed

Social Security Act  1991 (Cth) – ss 601, 624

REASONS FOR DECISION

24 December 2008 Mr S Karas, AO, Senior Member

INTRODUCTION

1.      Mr Allan William Clancey (the Applicant) applied to the Administrative Appeals Tribunal (the Tribunal) on 6 October 2008 for a review of a decision made by a Centrelink Officer on 14 July 2008 to apply a participation failure to the Applicant’s Newstart Allowance on the basis that he had failed to comply with provisions of an Activity Agreement. On 30 July 2008 an Authorised Review Officer affirmed the decision on the basis that the Applicant failed to comply with the Activity Agreement in particular the provision that he “be open and honest regarding all information relevant to pre and post employment and communicate effectively from 23/06/2008 to 19/12/2008”.  The Authorised Review Officer found that when the Applicant attended a job interview for a position as a delivery driver with Howard’s Conference Catering on 7 July 2008 he behaved in a manner that was deemed to have seriously undermined his job prospects. That behaviour was found to have constituted a breach of his obligations under the Activity Agreement so as to amount to a participation failure.

2.      On 16 August 2008 the Applicant appealed that decision to the Social Security Appeals Tribunal (SSAT).  On 3 September 2008 the SSAT affirmed the decision under review.

3.      A hearing of this matter was held in Brisbane on 18 December 2008.  The Applicant appeared on his own behalf.  Mr Amundsen appeared for the Secretary, Department of Education, Employment and Workplace Relations (the Respondent).  The Tribunal had before it the T-documents lodged in accordance with s 37 of the Administrative Appeals Act 1975 together with:

·   A copy of the Respondent’s Statement of Facts and Contentions and List of Authorities dated 3 December 2008.

·   A copy of the Applicant’s response dated 10 December 2008.

·   An overview prepared by the Applicant and handed to the Tribunal at the hearing.

·   Another response to the “Secretary’s Statement of Facts and Contentions” handed to the Tribunal at the hearing by the Applicant.

·   Copies of proposed questions for David Mason and Andrew (and Karen) by the Applicant and handed to the Tribunal at the hearing.

BACKGROUND

4.      The Applicant is in receipt of a Newstart Allowance and on 23 June 2008 he entered into an Activity Agreement with Job Futures Ltd.  On 7 July 2008 the Applicant attended a job interview at Howard’s Conference Catering.  He was accompanied to the job interview by David Mason.  The Applicant was not offered a job by Howard’s Conference Catering.

5.      In the Activity Agreement entered into by the Applicant were a number of compulsory activities, including, relevantly:

“to be open and honest regarding all information relevant to pre and post employment and communicate effectively…

…

Attend, and try my hardest to get the job, at all job interviews…”

As a result of the Applicant’s behaviour and conduct at the job interview with Howard’s Conference Catering on 7 July 2008 he was found to have committed a participation failure by a Centrelink officer in that he had failed to comply with the provisions of his Activity Agreement with Job Futures Ltd.

6.      Under the Social Security Act 1991 (Cth) (the Act) people in receipt of a Newstart Allowance are generally required to satisfy the activity test in accordance with s 601, including such requirements as complying with instructions and undertakings. Under s 624 of the Act a person commits a “participation failure” if he/she fails without reasonable excuse to comply with a term of a Newstart Activity Agreement between the Respondent and that person. Section 4 of the Social Security (Reasonable Excuse)(DEWR) Determination 2006 sets out the matters to be taken into account in determining if a person had a reasonable excuse pursuant to ss 624(2) and 626(2) of the Act.

ISSUES

7.      The issue for the Tribunal to determine is whether the Applicant committed a participation failure on 7 July 2008.

EVIDENCE

8.      At the hearing the Applicant gave the following evidence:

·   He corrected some mistakes and dates in the Respondent’s Statement of Facts and Contentions and commented on aspects of the SSAT decision.

·   He referred to the happenings on 7 July 2008 and to the job interview he attended at Howard’s Conference Catering with David Mason from Job Futures Ltd.

·   While on the way to the job interview he stated he was told by David Mason that the position was one of a casual driver for some 20-25 hours a week.  He was warned by David Mason not to talk about his knee and he noted that he would be breached if he did.

·   At the interview Andrew, the owner of the business, told him about the business.  They were joined by Karen, Andrew’s wife.  The Applicant was told he would be the face of the business and he would be making food deliveries as a casual driver.  They would call him when required, possibly 9am-12pm Tuesday, Wednesday and Thursday each week and possibly at other times.

·   He stated that could be “awkward” and when asked to expand on what he meant he did not, as David Mason knew the reasons and his position.  He thought it could be “awkward” if for example he was painting and at short notice he had to do a delivery that required him to get cleaned and dressed.  He said he was “stunned” and did not know how to answer.

·   He asked and received Andrew’s business card that he kept as he was going to “follow up”.

·   He waited outside while David and Andrew conferred together.  While waiting he saw the van and thought it would be difficult to drive as he had to reverse relying solely on mirrors.  He thought the job would be good until he saw the vans.  He stated he “went cold on the idea” after seeing the vans.

·   There was no discussion at the interview about rates of pay and the like.

·   He denied stating that the hours did not suit him and reiterated that David had told him he would be breached and not to talk about certain things like his sore knee.

·   He referred to his work and “large interest loan” and how he is tied up and unable to finish the house that needs painting.  He feels he is “getting the run around” and that this is “clogging up his time”.

·   He would like a geologist’s job.

·   He stated he was telling the truth that the others were at best “misleading” or at worst “deliberately telling lies”.  He felt the SSAT decision was wrong and referred to “problems” with it.  He stopped teaching in 1983 and did not receive benefits until 1999.

·   He did not talk about his car at the interview – a 30 year old 1977 Kingswood that is not always reliable.  He was told by David a number of times not to mention his sore knee and if he sabotaged the interview he would be breached.

·   He felt that his words were changed in the SSAT decision and were not as he expressed them.

·   He referred to his family and his living in Salisbury since 1982 not far from his mother who lives in Moorooka.  He also referred to his activities on an average day and how he has hardly worked on his house this year as he has to go to Centrelink 3-4 days a week and he gets “bogged down” with paperwork.

·   He said he made notes of the interview on that day and handed the Tribunal his diary where he had recorded in part on 7 July 2008 “hours a great problem”.

·   He stressed he did not have a participation failure on the day of the interview and how the others had got it wrong in their recollections and recordings.  He again referred to the errors in the written materials and statements and how his evidence should not be in question.  He stated he had not been breached at other job interviews and that he had tried to get the job.  He referred to his writing up his notebook after the interview and recording that the hours were “a great problem” after looking around the premises at Howard’s Conference Catering.

·   He emphasised that he never said at the interview that the hours were unsuitable but he did mention “awkward”.  He was told by David Mason not to say things and he was concerned about that.  However, he did not say anything to cause a failure and he said that he was interested and he asked for Andrew’s card.  He stated that their view that he was less keen for the job had nothing to do with his actions or him not wanting the job.

·   He did not “sabotage” the meeting.  He is a quiet person who thinks about things and what he said and did at the interview was because of David Mason and being “under stress from him”.  He did not sabotage or damage his chances for the job.

9.      The advocate for the Respondent referred to the Applicant’s signed Activity Agreement and the job interview of 7 July 2008.  He noted that the Applicant had said that the “hours could be awkward” and when asked what he meant by that he did not give any specific response.  When the Applicant was asked whether his reference to the hours being “awkward” might lead an employer to think he did not want the job, the Applicant said this was not a problem at all and that the employer should not have been worried about that.  The Applicant also noted that an employee would have seen from his behaviour that he was interested in the job as he had shown an interest, but that some aspects of the job “could be awkward”.  The Applicant also noted he had gone Scottish dancing some 7 days before the interview as he was told to keep fit.

10.     The advocate for the Respondent referred to the relevant legislation pointing out that the Applicant’s behaviour at the interview constituted a participation failure without reasonable excuse. He submitted that the Applicant had not tried his hardest to get the job and his behaviour breached the terms of his Activity Agreement.  He referred to the employer’s impression, as stated in the SSAT decision, that from the Applicant’s behaviour at the interview he did not want the job and that although the Applicant denied that he said the hours would not be suitable he had recorded in his diary/notebook that they were a problem.  As well the Applicant had said at the interview that they could be “awkward”.  When clarification was sought at the interview from the Applicant as to what he meant in that regard he did not answer, as he stated David Mason knew his situation.

11.     The advocate submitted that the statements of the employer (Andrew) and David Mason were plausible as that they would not have conspired in their evidence and notes. The advocate added that the Applicant’s words and actions at the interview were not conducive to a person seeking a job and his unwillingness to clarify his reference to “awkward” was not the standard behaviour that would lead to a job.  The employer concluded as a result of the Applicant’s negative approach that he was not interested in the job.  The advocate submitted that the Applicant failed to comply with the terms of his Activity Agreement without reasonable excuse and that the SSAT decision was correct and should be affirmed.

CONSIDERATION AND FINDINGS

12.     From the evidence and material before it the Tribunal finds:

(a)That the Applicant entered into an Activity Agreement with Job Futures Ltd in June 2008.

(b)The Activity Agreement included a number of compulsory activities such as:

“To be open and honest regarding all information relevant to pre and post employment and communicate effectively”; and

“Attend and try my hardest to get the job at all job interviews”.

(c)The Applicant attended a job interview on 7 July 2008 at Howard’s Conference Catering.

(d)At the interview discussions took place and the Applicant referred to the suggested hours to be worked as being “awkward”.  When called upon to explain this the Applicant did not, as he maintained that David Mason from Job Futures Ltd who accompanied him to the job interview knew why.

(e)The Applicant was not offered employment by Howard’s Conference Catering.

13.     The Tribunal notes that from his own jottings on 7 July 2008 the Applicant recorded after the job interview that the suggested work hours were “a great problem”.  However, he insisted that at the interview he used the word “awkward”.  Irrespective of the exact words used at the interview, the Tribunal is of the mind that his failure to explain what he meant by that to the employer would have lead a reasonable person in Andrew’s position to conclude that the job interviewee was not really interested or serious about accepting the job.  The Applicant contends that he was and points to his asking and receiving the employer’s business card in support of this contention, although the card could have been given to him as a usual courtesy in that regard.

14.     The Tribunal has doubts about the veracity of the Applicant’s version of events and the conclusions he drew from the job interview. The Tribunal prefers the notes and statements from David Mason and Andrew as recorded in the T Documents and in the SSAT’s decision.  The Applicant’s own notes in his diary for 7 July 2008 support the thrust of the statements by David Mason and Andrew that he was not really interested in accepting the job, as does his statement at the interview about the work hours being awkward and his failing when requested to expand on this.

15.     The Tribunal notes that David Mason and Andrew had nothing to gain by conspiring and acting against the interests of the Applicant.  Indeed, the Tribunal finds their statements and record of events as plausible.  It does not accept the Applicant’s contention that they are untruthful or misleading.  The suggestion that they would concoct stories against the Applicant is, in the Tribunal’s view, quite fanciful and discredits the Applicant.  While the exact wording of what was said by the Applicant might be disputed by him, the Tribunal accepts that the thrust of the recorded versions of events point to a distinct disinterest on the part of the Applicant in seeking or acting as if he wanted the job.  The Tribunal does not accept that the evidence of all others associated with the happenings at the job interview is wrong and that the Applicant is the only one who is correct.  The Tribunal also notes that in the proposed questions submitted by the Applicant he records “Why did you take me to an interview for an unsuitable job?” and “why do you send us to totally unsuitable jobs?” (emphasis added).  Again in his reply to the Secretary’s Statement of Facts and Contentions the Applicant notes “nor should I have been taken to the interview for that position”.

16.     The Tribunal accepts written material from the Applicant as being supportive of the statements by the other parties at the interview that he did not try to get the job offered and indeed by his actions he gave the distinct impression that he was not interested in it.

17. The Tribunal did not find any evidence or material that would support the view that there was a falsification of the evidence, conspiracy or plot against the Applicant or that only his view of events could be true. Indeed the Tribunal finds the recorded statements of events by the employer and David Mason acceptable as a correct recording of these events at the job interview on 7 July 2008. Therefore, the Tribunal finds that the evidence supports the conclusion that the Applicant did not try his hardest to get the job at Howard’s Conference Catering and thus he failed to comply with the terms of his Activity Agreement as provided in s 624 of the Act. Furthermore, the Applicant’s explanations and submissions do not constitute a reasonable excuse in this matter as proposed in the legislation.

CONCLUSION

18.The Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

Signed:         .....................................................................................
  Jacqui Woods, Associate

Date/s of Hearing  18 December 2008
Date of Decision  24 December 2008
The Applicant was self represented
For the Respondent                  Mr M Amundsen, departmental advocate