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

[2008] AATA 618

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 618

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1868

GENERAL ADMINISTRATIVE DIVISION		)
Re		RONALDO CONCEPCION

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date16 July 2008 

PlaceSydney

Decision The decision under review is set aside.

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

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart Allowance – failure to comply with Activity Agreement – voluntary unemployment – reasonable excuse – decision under review set aside

Social Security Act – sections 593, 624 and 629

Social Security (Reasonable Excuse) (DEWR) Determination 2006

Guide to Social Security Law

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Marabouti and Department of Employment, Education, Training and Youth Affairs (1998) 53 ALD 585

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

Re Dainty and Minister for Immigration and Ethic Affairs (1987)12 ALD 416

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Secretary, Department of Employment and Workplace Relations and Vatarescu (2007) AATA 1717

Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 76 FCR 426

REASONS FOR DECISION

16 July 2008 Ms N Isenberg, Senior Member   

DECISION UNDER REVIEW

1.      On 13 December 2007, Centrelink decided that Mr Concepcion had committed a participation failure in respect of his Newstart Allowance (“NSA”) on 29 November 2007 by becoming voluntarily unemployed and that, as a result, an 8 week non-payment period would apply from 26 January 2008 to 18 March 2008.

2.      On internal review, an authorised review officer affirmed the decision to impose the 8 week non-payment period. An application was made to the Social Security Appeals Tribunal (“SSAT”) for a review of this decision, and on 20 March 2008 the decision was affirmed.

3.      Mr Concepcion now seeks review of that decision.

ISSUES

4. Whether Mr Concepcion is subject to an 8 week non-payment period pursuant to section 629(1) of the Social Security Act 1991 (“the Act”), because he either:

(b)  is unemployed due, either directly or indirectly, to a voluntary act of the person; or

…

(d)  has refused or failed, without reasonable excuse, to accept a suitable offer of employment.

BACKGROUND

5.      Mr Concepcion has received NSA on and off since 2006.

6.      On 22 August 2007, Mr Concepcion obtained casual employment with a private recruitment agency, Altius Services, who arranged work at Club Carpets, for which he received a casual rate of $17 per hour.  On 22 October 2007, he was offered a permanent position with Club Carpets. This offer was made in writing by the employer, and stated that the position was scheduled to commence on 19 November 2007, and that the rate of pay was to be negotiated at a later date. 

7.      Mr Concepcion notified Centrelink on 7 December 2007, that he had been offered a permanent position with Club Carpets but had declined the offer.

8.      On 13 December 2007, Centrelink decided that Mr Concepcion committed a participation failure on 29 November 2007 by becoming voluntarily unemployed and that an 8 week non-payment period would apply from 30 November 2007 to 24 January 2008.

9.      That decision was affirmed on internal review and by the SSAT.

LEGISLATIVE FRAMEWORK

10. Section 593 of the Act provides that in order to be qualified for NSA, a person must satisfy the “activity test”, that is, he or she must be actively seeking and be willing to undertake work. A person may provide a reasonable excuse for failure to satisfy the activity test pursuant to section 624(2). Section 629 of the Act provides that where there have been a serious failure of the activity test, NSA will not be payable for a period of 8 weeks. Serious failures include voluntarily leaving employment and refusing to accept a suitable offer of employment: section 629(1).

DISCUSSION OF EVIDENCE AND FINDINGS

11.     I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975, the T-documents, which I took into evidence.  Mr Concepcion gave evidence and was cross-examined.  I also asked him questions.

12.     Mr Concepcion told me that he looked for a job through Altius Services.  The next day he was sent to work at Club Carpets, initially for 2 weeks, as a casual store person.  He received $17 per hour.  His supervisor was Mr Stephen Miner, the warehouse manager.  Mr Miner told him that he liked the way he worked and that he would recommend him to the owner, Mr Tony Salem, if he (Mr Concepcion) wanted to work full-time.  On about 6 October 2007, Mr Salem asked Mr Concepcion about working full-time.  Mr Salem said that the whole of the building looked very clean and tidy and that everything was very organised.  Mr Concepcion received a letter dated 22 October 2007 from Club Carpets signed by Mr Miner that:

As of Monday 19^th November 2007 we are willing to offer you a permanent position in our warehouse at 109 Long St Smithfield. This is dependent to your performance over the next four weeks. The rate of pay will be negotiated between your self and us in the next couple of weeks.

Hoping that you will be happy with this we are looking forward to having you as a long term employee.

13.     On 16 November, Mr Concepcion and Mr Miner discussed the rate of pay and the duties.  Although Mr Concepcion had previously received $17 an hour, Mr Miner agreed that $18 an hour was appropriate as Mr Concepcion was to take on additional cleaning duties, as the cleaner had been sacked.

14.     Mr Concepcion went to work on 19 November as arranged.  On 28 November at about 1 p.m. he saw Mr Salem and Mr Miner.  Mr Salem tried to negotiate an hourly rate lower than the rate that Mr Miner had agreed.  Mr Salem reasoned that $18 was too much and that there was not enough work at the time.  Mr Concepcion said he told Mr Salem to “talk to Steve [Miner]”. Mr Concepcion was upset and was yelling.  As a result, he did not hear what the lesser amount was that Mr Salem was offering, namely $13.60 per hour. 

15.     After this altercation, Mr Concepcion ceased working for Club Carpets.  He was subsequently paid $1,301 for about 60 hours of work that he did for Club Carpets during the period 19 to 28 November.  He has never received a group certificate or a pay slip so does not know how much he was paid per hour for that time.

16.     Mr Concepcion was referred to a file note by a Centrelink officer, dated 7 December 2007, where he was alleged to have said that he had declined the offer of work at $18 per hour because he wanted more money.  He denied that conversation.  He said there was no reason for him to decline $18 per hour when he had previously been paid only $17 per hour for the same work, and had previously worked for even only $12 per hour.  He was referred to another file note of 12 December 2007 wherein it was reported that he had said that he had wanted $22 per hour.  He said he believed the Centrelink officer had made a mistake because of an earlier reference to $22 per hour in respect of an earlier alleged breach. He absolutely denied saying that he had refused the job because he only wanted $22 per hour.

17.     Mr Concepcion was asked a number of questions about earlier alleged breaches of his activity agreement.  I found the discussion of the earlier matters to be of little relevance.  In any event, Mr Concepcion also disputed these matters, but had not pursued his complaints because he got a job and thought that was more important than continuing arguments with Centrelink.  Suffice to say that there was again a dispute between what Mr Concepcion said he had told Centrelink and what was recorded in the file notes. 

18.     Mr Concepcion also provided a statement from Mr Miner, who also gave evidence by telephone.  In his statement, Mr Miner wrote:

At one time I agreed with Ronaldo a hourly rate of $18.00 per hour and said that I think this should be OK. When I finally got Tony to take some time to talk with me and Ronaldo he said that be thought that was [too] much and he went to talk with Ronaldo and offered him $13.60 per hour to which Ronaldo replied that he was already getting more than this working for Altius and refused to accept this offer.

19.     Mr Miner told me that Mr Concepcion had initially been employed as a casual and had worked odd hours, 5 days per week.  His duties included unloading carpets (including forklift driving), cutting carpets and cleaning the premises.  He found Mr Concepcion to be very conscientious, and when there was little work to be done he was always cleaning, even the toilets and the kitchen.  After a short period he told Mr Salem, the owner, that he should offer Mr Concepcion a permanent position.  Mr Salem told him to "try to negotiate" with Mr Concepcion in relation to full-time work and the appropriate wage.  He talked to Mr Concepcion and offered him full-time work and they talked about wages.  Mr Concepcion wanted about $18 per hour or possibly $20 per hour.  He thought that $18 per hour to start was fair, with a review at a later date, and Mr Concepcion agreed.  On 22 October 2007, he wrote to Mr Concepcion offering a permanent position with Club Carpets which was to commence on 19 November 2007.  The rate of pay was to be negotiated “in the next couple of weeks”. 

20.     He went to Mr Salem with the results of his discussion with Mr Concepcion.  After a couple of weeks the 3 of them had a discussion and Mr Salem offered Mr Concepcion only $13.60 per hour, thereby overruling him and reneging on the arrangement he had reached with Mr Concepcion. 

21.     Mr Miner agreed that he had been contacted by Centrelink 2 or 3 times in relation to the matter and cannot now recall precisely what he said.  He was referred to 2 file notes.  The first, dated the 7 December 2007, indicated that Mr Miner had told Centrelink that Mr Concepcion had been offered a permanent position at $18 per hour but had declined the position saying he would only work for more money.  In this second, dated 12 December 2007, it was reported that he had said that Mr Concepcion did not accept the offer of $18 per hour.  Mr Miner said that what had been recorded was only "half the story".

22.     I was particularly impressed with the independent evidence of Mr Miner, which is broadly consistent with Mr Concepcion’s account.  I am therefore prepared to accept that Mr Concepcion was originally paid $17 per hour for casual work at Club Carpets and that he believed he would be offered $18 per hour, as he had discussed with Mr Miner.  Further, I accept that Mr Salem’s offer was $13.60 as Mr Miner contended.  I do not accept that Mr Concepcion would have rejected a full-time job that paid $18 per hour, when he clearly was prepared to work, even on a casual basis for $17 per hour (or $12 per hour on a part-time basis).

Did Mr Concepcion leave his employment at with Club Carpets without reasonable excuse?

23.     I was referred to the Social Security (Reasonable Excuse) (DEWR) Determination 2006 (“the Determination”), which lists the matters to be taken into account in determining whether a person had a “reasonable excuse” in becoming voluntarily unemployed. None of the factors described by the Determination as constituting a reasonable excuse is relevant in Mr Concepcion’s case. However, section 629(1B) of the Act indicates that the list is not exhaustive.

24.     I was referred to the Guide to Social Security Law (“the Guide”) regarding the meaning of a “reasonable excuse”.  In section 3.2.13.30 of the Guide, it states that:

…the meaning of the term ‘reasonable excuse’ is discretionary but in basic terms the excuse must be one that would seem plausible and satisfactory to a member of a public.

25.     Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577), I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987)12 ALD 416 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

26.     The meaning of the term “reasonable” in this context was considered in Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 76 FCR 426. In this case, it was held to mean “the main reason for failure involved a matter that was within the control of the social security recipient.” In Re Secretary, Department of Employment and Workplace Relations and Vatarescu (2007) AATA 1717, the “test of reasonableness is an objective one that applies to the personal reason of the person for failing to comply at the time”.

27.     Mr Concepcion left his position with Club Carpets because he was offered a lower rate of pay than that he legitimately believed he had already negotiated. 

28.     I was provided with a copy of the Federal Award Wage for the relevant period.  The Federal Minimum Wage (FMW) was $13.74 per hour. The amount that was offered to Mr Concepcion by Mr Salem was only $13.60.  I note too that Mr Concepcion had a forklift driver’s licence and this would seem to entitle him to an additional loading (T10, p40).  The Respondent’s representative conceded that if someone is offered less than the FMW, he or she has a right not to accept the job.

29. I therefore find that Mr Concepcion had a reasonable excuse to voluntarily leave that particular employment, and therefore is not subject to an 8 week non-payment period pursuant to section 629(1)(b) of the Act.

30.     I was also referred to Marabouti and Department of Employment, Education, Training and Youth Affairs (1998) 53 ALD 585 where the Federal Court considered whether the AAT had failed to take into account factors such as whether the offer did not include the amount of remuneration. In that matter, unlike this, there was no evidence that the pay would not be at least award wages.

31. Further, I find that the offer of a job at below award wages does not amount to “a suitable offer of employment”. Hence, there was also no serious failure under section 629(1)(d) of the Act that was committed by Mr Concepcion.

DECISION

32.     The decision under review is set aside.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed:         .............[Sgd]...........................

Ms R Prasad, Associate

Date of Hearing  7 July 2008
Date of Decision  16 July 2008
Appearance for the Applicant   Self-represented
Interpreter for the Applicant      Mr Rolando Tan
Solicitor for the Respondent     Mr George Lozynsky, Centrelink Legal Services