CRAIG PETER WALKER and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Senior Member L Hastwell

[2009] AATA 538

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 538

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2677

GENERAL ADMINISTRATIVE DIVISION		)
Re		CRAIG PETER WALKER

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

ORAL DECISION

Tribunal Senior Member L Hastwell

Date29 May 2009

PlaceAdelaide

Decision The Tribunal sets aside the decision under review.

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

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – eight week non-payment period – decision set aside

Social Security Act 1991 ss 629(1), 629(4)

REASONS FOR ORAL DECISION

29 May 2009   Senior Member L Hastwell

1.      Craig Walker (the applicant) has been unemployed, with some limited periods of employment, since approximately 2001.

2.      With the assistance of a Job Network Member, he obtained employment with Teys Bros (Naracoorte) Pty Ltd, an abattoir at Naracoorte, commencing employment on 6 February 2008.

3.      On 22 February 2008, he left his employer’s workplace without explanation and has not returned.

4.      On 25 February 2008, the applicant’s Job Network Member submitted a participation report to Centrelink informing Centrelink that he had become voluntarily unemployed. 

5.      On 5 March 2008, a delegate of the Secretary decided that Mr Walker had become unemployed due to a voluntary act and that his actions were not reasonable.

6.      An Authorised Review Officer affirmed the decision under review on 28 March 2008.  The consequence of this was that an eight week non-payment period was applied to Mr Walker’s Newstart Allowance (NSA) as his unemployment was considered to be due to a voluntary act, which act was not reasonable.

7.      Mr Walker sought review from the Social Security Appeals Tribunal (the SSAT) and on 12 May 2008 the SSAT affirmed the decision under review.

8.      Mr Walker sought review of that decision to this Tribunal.

the hearing

9.      The hearing was conducted by telephone with Mr Walker, who is now living in Horsham.

10.     The Tribunal heard evidence from Mr Walker and from his counsellor, Mr Henwood.  The Tribunal also had regard to the T documents and to a Job Capacity Assessment Report that had been carried out in August 2008.

issue

11.     The issue to be determined in this case is whether Mr Walker’s unemployment was due to a voluntary act on his behalf and if so, was his act of becoming unemployed reasonable.

legislation

12.     The relevant legislation is contained in the Social Security Act 1991 (the Act).

13. When a person is in receipt of NSA, the Act sets out a regime whereby they can face an eight week non-payment period if they fail to comply with aspects of the activity test. Sections 629(1) and (4) provide as follows:

“629     Allowance not payable because of repeated or more serious failure

(1)A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:

…

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

…

(4)Paragraph (1)(b) does not apply if the Secretary is satisfied that the person’s voluntary act was reasonable.

…”

14.     The Act does not provide any specific guidance as to the meaning of “reasonable”.  Policy Guidelines (the Guidelines) are provided in the Guide to the Social Security Law at chapter 3.2.13.10 which states:

“Further Information – voluntary unemployment (serious failure)

When a person ceases employment due to a voluntary act either prior to or while in receipt of payment, the voluntary act must have been reasonable.  The rationale for this policy is based on a community expectation that unemployment payments are to assist people in genuine need.  A person who chooses to leave employment with no good reason cannot expect community assistance.  In determining whether or not the voluntary act was reasonable the delegate must consider whether or not the work was unsuitable for this person (3.2.8.20) and must take into account the job seeker’s personal circumstances (3.2.13.30).

Note:  In determining whether or not the voluntary act was reasonable, the delegate should consider, on a case-by-case basis, all relevant issues which may be presented, including claims of sexual harassment, bullying and unsafe work conditions.”

15.     In relation to whether a person’s work was “unsuitable”, further guidance is provided in chapter 3.2.8.20 which states in part:

“Assessing unsuitable work

For the purposes of NSA and YA, work may be unsuitable for a job seeker if it:

·requires particular skills, experience or qualifications that the person does not have, and appropriate training will not be provided by the employer,

·may aggravate a pre-existing illness, disability (1.1.D.160) or injury and medical evidence has been provided,

·Involves health or safety risks and would contravene an occupational health and safety law,

·the job seeker is a principal carer of a child or children under section 5(1) of the Social Security Act 1991 and appropriate care and supervision of the child(ren) is not available during the hours the person would be required to work,

·the terms and conditions for the work are less generous than the applicable statutory conditions,

·involves commuting from home to work that would be unreasonably difficult,

·involves enlistment in the Defence force or the Reserve forces,

·requires the person to change residence, or

·in the Secretary’s opinion, is unsuitable for any other reason.”

mr walker’s reasons for failing to maintain his employment as a meat worker

16.     Mr Walker’s evidence to the Tribunal was that in February 2008, he was addicted to both cannabis and amphetamines.  His life was chaotic and unstable.  At the time he was in a relationship with a woman who was also addicted to drugs.  He was not in control of his life at all.

17.     He said that she left her employment and so he left his. 

18.     He did not have a stable family life and has suffered periods of depression from quite an early age. 

19.     He said that he was in a very poor frame of mind and health at the time, having been addicted to drugs for some time.  When he started the new job he found that illegal drugs were actually available in the working environment at the abattoir.  He said this in itself put him in a very difficult situation. 

20.     He told the Tribunal that he had been abusing drugs for a number of years and it is only recently since seeing a counsellor that he has been able to begin to overcome his drug addiction and move forward in his life.

21.     His evidence was that he has now found stable accommodation in Horsham and is making a new life for himself away from the Mount Gambier environment, where he felt he could not break the cycle of drug dependency and addiction.  He said that at the time that he was working briefly at the abattoir, he was still commuting to Mount Gambier to obtain more drugs because of the level of his addiction and he was also acquiring drugs in the workplace.

22.     Mr Henwood, who is a drug and alcohol counsellor in Horsham, also gave evidence on his behalf.

23.     He told the Tribunal that he has now been working with Mr Walker since March 2009 and assisting him to overcome his addiction.

24.     Mr Henwood said that when he first met Mr Walker in March 2009, Mr Walker had the demeanour of a person who was or had been a hard drug addict.  He said he was in poor physical condition with missing teeth, and Mr Henwood had absolutely no doubt that Mr Walker was or had been a hard drug addict who was now attempting to rebuild his life.

25.     He also commented that it is not uncommon for drugs to be available at an abattoir because the work is so difficult and tedious.  He has come across other drug addicts who have complained that working in an abattoir is unsuitable if they are endeavouring to avoid drugs because they are available in the work environment. 

26.     He added some credibility to Mr Walker’s assertion that there were drugs freely available at the abattoir.

consideration and application of the law

27.     Mr Walker concedes that he left his employment voluntarily and the issue is whether his voluntary act was reasonable.  The evidence also raises the issue of whether the employment was unsuitable.

28.     The Guidelines say that a decision-maker can take into account a person’s personal circumstances in determining whether they left their employment voluntarily.

29.     The Tribunal finds:

·In February 2008 and for several years prior to that date, Mr Walker had a significant drug dependency, including dependency on cannabis and amphetamines.

·Mr Walker also has a long history of depressive illness.

·In February 2008, his drug dependency was such that his judgement was impaired when it came to making decisions about whether or not to stay at Teys Bros Meatworks.

·At Teys Bros, Mr Walker found himself exposed to people using drugs which also made it an unsuitable working environment.

consideration and application of the law

30.     The test to apply is whether the work in question was suitable or whether the voluntary act of leaving work was reasonable or whether a combination of both existed in this case.

31.     The Tribunal is satisfied that Mr Walker had little control over his life at the time that he voluntarily left the employment.  He had a drug or alcohol dependency which is specifically referred to in the Guidelines, and it would appear he also had psychiatric problems at the time.

32.     The Tribunal is satisfied that although he ostensibly voluntarily left his employment, his judgment was impaired at the time as he was addicted to drugs which controlled his life and actions for many years.

33.     The Tribunal is also satisfied that the work in question was not suitable, given the particular circumstances of Mr Walker’s drug addiction at the time.  The availability of drugs in the workplace aggravated his pre-existing addiction and provided an unsuitable working environment for someone who was trying to make a new start in a job after a long period of unemployment.

34.     In all the circumstances, the Tribunal is satisfied that Mr Walker’s personal circumstances overwhelmed his judgment at the time and his departure from Teys Bros was as a result of his psychiatric problems and drug addition at the time.

35.     In addition, what he had possibly hoped would assist him in sorting out his life, exposed him to co-workers using drugs.

36.     The Tribunal set aside the decision of the SSAT and found that in the circumstances, it was reasonable for Mr Walker to have left his employment and there will not be an imposition of an eight week non-payment period.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         ............J Coulthard..........................................
  Associate

Dates of Hearing  19 February 2009 and 29 May 2009
Date of Decision  29 May 2009
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Mr C Visser
  Centrelink Legal Services and Procurement Branch