Cullen and Secretary, Department of Social Services (Social services second review)
[2019] AATA 777
•1 May 2019
Cullen and Secretary, Department of Social Services (Social services second review) [2019] AATA 777 (1 May 2019)
Division:GENERAL DIVISION
File Number:2018/7223
Re:Stephen Cullen
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:1 May 2019
Place:Brisbane
The Tribunal affirms the decision under review.
..........................[SGD]..............................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – New Start Allowance – cancellation – refusal or failure to accept an offer of suitable employment – reasonable excuse – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Administration)(Reasonable Excuse – Participation Payments) Determination 2018 (Cth)CASES
Secretary, Department of Education, Employment and Workplace Relations and Parsons [2009] AATA 77REASONS FOR DECISION
Member D Mitchell
1 May 2019
INTRODUCTION
Mr Stephen Cullen (the Applicant) has been receiving Newstart Allowance (NSA) since 25 March 2016.[1]
[1] Exhibit 1, T Documents, T 25, page 114, Centrelink mainframe screen captures.
Due to an event that took place on 29 August 2018, the Respondent made a decision to cancel the Applicant’s NSA and impose a non-payment period of four weeks (from 17 August 2018 to 14 September 2018).[2] The Applicant was notified of this decision on 7 September 2018.[3]
[2] Exhibit 1, T Documents, T 25, pages 100-113, Centrelink mainframe screen captures.
[3] Exhibit 1, T Documents, T 9, pages 51-52, Cancellation of your Newstart Allowance.
On 12 September 2018, an authorised review officer (ARO) affirmed that decision.[4]
[4] Exhibit 1, T Documents, T 10, page 53-58, Decision and Notes of Authorised Review Officer.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision of the ARO on 19 November 2018.[5]
[5] Exhibit 1, T Documents, T 2, pages 3-7, Decision of the Social Security and Child Support Division.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 4 December 2018.[6]
[6] Exhibit 1, T Documents, T 1, pages 1-2, Application for Review.
On 21 March 2019, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave sworn evidence in person.
The issues to be determined by the Tribunal is whether the Applicant refused or failed to accept an offer of suitable employment on 29 August 2018 and, if so, had a reasonable excuse for refusing or failing to accept the offer.
BACKGROUND
The Applicant has been receiving NSA since 25 March 2016[7] and has been connected to HELP Enterprises (HELP), a Disability Employment Service provider located in Nerang, since February 2017.[8]
[7] Exhibit 1, T Documents, T 25, page 93, Centrelink mainframe screen captures.
[8] Exhibit 1, T Documents, T 25, page 114, Centrelink mainframe screen captures.
On 19 July 2018, the Applicant entered into a Job Plan with HELP which set out the Applicant’s mutual obligation requirements that must be undertaken in return for receiving NSA. The requirements include attending job interviews, do other activities as directed by the provider and follow up on any job referrals or opportunities that may lead to paid employment and not just work that he would like to do.[9]
[9] Exhibit 1, T Documents, T 21, pages 72-75, Job Plan form.
Ms Lisa Clark, as a Coach at HELP was working with the Applicant to assist him to find employment. Ms Clark arranged a job interview for the Applicant with
Mr Jehad Abu-Dabat, a local employer who owns several businesses.[10]
[10] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 2, paragraph 7.
According to a ‘Non-Compliance Event Report for Job Seeker failed to accept suitable job’ filed by Ms Clark on 29 August 2018:[11]
· the Applicant attended the business premises and spoke to Mr Abu-Dabat about the employment being offered;
· Mr Abu-Dabat offered the Applicant a part time job working in his fruit and vegetable store; and
· the Applicant failed to accept this offer of employment.
[11] Exhibit 1, T Documents, T 8, pages 45-50, Non Compliance Event report for Job Seeker failed to accept suitable job.
On 7 September 2018, the Respondent issued a notice to the Applicant advising him that his NSA had been cancelled from 17 August 2018, and that he would not be able to receive any payment until at least 14 September 2018.[12]
[12] Exhibit 1, T Documents, T 9, page 51, Cancellation of Newstart Allowance.
The Applicant sought review of the decision, on 12 September an ARO affirmed the decision making the following key findings: [13]
· On 19 July 2018, you entered into a Job Plan with Help Enterprises Limited and agreed to accept suitable work if it was offered to you.
· On 29 August 2018, you were offered work [at the fruit and vegetable store].
· The work was suitable for you.
· You refused the offer of work.
· On 7 September 2018, the department cancelled your Newstart Allowance from 17 August 2018.
· You have a four-week non-payment period.
[13] Exhibit 1, T Documents, T 19, pages 143-150, Decision and notes of Authorised Review Officer.
On 19 November 2018, the SSCSD affirmed the ARO’s decision.[14]
[14] Exhibit 1, T Documents, T 2, pages 3-8, Decision of the Social Security and Child Support Division.
THE LAW
The relevant law in relation to the payment of NSA is found in the Social Security Act 1991 (the Act), Social Security (Administration) Act 1999 (the Administration Act) and Social Security (Administration)(Reasonable Excuse – Participation Payments) Determination 2018 (the Determination).
Sections 593, 601 and 605 of the Act provide that for a person to qualify for NSA they must meet any participation requirements or activity test requirements that apply to them.
The Administration Act sets out the definition of work refusal failure, the relevant compliance action and outcomes in relation to participation payments.
Section 44AA of the Administration Act provides that NSA is a participation payment.
Section 42AD of the Administration Act relevantly provides:
42AD Work refusal failures
A person commits a work refusal failure if:
(a)the person is receiving a participation payment; and
(aa) …. and
(b)the person refuses or fails to accept an offer of suitable employment.
Note: In certain circumstances a person is taken to be receiving a participation payment even if it is not payable to the person: see section 42AQ.
Section 42AG of the Administration Act relevantly states:
42AG Compliance action for work refusal failures
Usual rule
(2)If a person commits a work refusal failure, the Secretary must determine that the person’s participation payment is not payable to the person for a period (see section 42AL).
Special rule – no reasonable excuse
(3)However, if the person does not satisfy the Secretary that the person has a reasonable excuse for the work refusal failure (see section 42AI), the Secretary must determine that the person’s participation payment is cancelled (see section 42AP).
Note: Participation payments will not be payable to the person for the person’s post-cancellation non-payment period (see subsection 42AP(5)).
(4)A determination made under subsection (2) for a work refusal failure has effect despite any determination made under subsection (1) for the failure.
Section 42AI of the Administration Act refers to matters that must or must not be taken into account in determining what is a reasonable excuse:
42AI Reasonable excuses—matters that must or must not be taken into account
Matters to be taken into account
(1) The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether a person has a reasonable excuse for committing:
(a) a mutual obligation failure (see paragraph 42AF(2)(b)); or
(b) a work refusal failure (see subsection 42AG(2)).
(2) To avoid doubt, a determination under subsection (1) does not limit the matters that the Secretary may take into account in deciding whether the person has a reasonable excuse.
Matters not to be taken into account
(3) The Secretary may, by legislative instrument, determine matters that the Secretary must not take into account in deciding whether a person has a reasonable excuse for committing:
(a) a mutual obligation failure (see paragraph 42AF(2)(b)); or
(b) a work refusal failure (see subsection 42AG(2)).
Section 42AP of the Administration Act relevant provides:
42AP Cancelling participation payments
(1)This section applies if the Secretary determines under Subdivision C that the participation payment of a person who has committed a mutual obligation failure, a work refusal failure or an unemployment failure is cancelled.
When payments are cancelled
(2)For a mutual obligation failure or a work refusal failure, the participation payment is cancelled at the start of the following day (the cancellation day):
(a)The first day of the instalment period in which the person commits the failure (unless paragraph (b) applies);
(b)If the Secretary determines that a later instalment period is more appropriate – the first day of that later instalment period.
…………
(5) A participation payment (whether or not the same as the participation payment that was cancelled) is not payable to the person for the period (the post-cancellation non-payment period) of:
(a)4 weeks beginning on the cancellation day ….
The Determination sets out the matters that must be taken into account[15] and must not be taken into account,[16] when deciding whether a person has a reasonable excuse for committing a work refusal failure.
[15] Section 5 of the Determination.
[16] Section 6 of the Determination.
Section 5 of the Determination sets out, for the purposes of subsection 42AI(1) of the Administration Act, the matters that must be taken into account in deciding whether a person has a reasonable excuse for committing a failure. These are set out in subsection 2 as follows:
(2) The matters are:
(a) the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure;
(b) the literacy and language skills of the person;
Example for paragraph (b):
If the person is unable to comprehend a requirement or an instruction, despite the requirement or instruction being delivered in a form that the person is most likely to comprehend.
(c) an illness, injury, impairment or disability of the person;
(d) a cognitive, neurological, psychiatric or psychological impairment or mental illness of the person;
(e) a drug or alcohol dependency of the person;
(f) unforeseen family or caring responsibilities of the person;
(g) the person was subjected to criminal violence (including domestic violence and sexual assault);
(h) the person was adversely affected by the death of an immediate family member or close relative;
(i) the person was undertaking paid work at the time of the failure;
(j) the person was attending a job interview at the time of the failure.
ISSUES
The issues for the Tribunal to consider are:
1.Whether the Applicant refused or failed to accept an offer of suitable employment on 29 August 2018; and
2.If so, whether the Applicant had a reasonable excuse for refusing or failing to accept this offer?
CONSIDERATION
Did the Applicant refuse or fail to accept an offer of suitable employment on 29 August 2018?
There is much conjecture in relation to the events that occurred on 29 August 2018. What is not in dispute is that the Applicant:
· attended the business premises of Mr Abu-Dabat (the prospective employer) on two occasions on the morning of 29 August 2018, without his HELP Coach present;
· visited the HELP office between his visits to the prospective employer, he spoke to Ms Clark by telephone after leaving the HELP office and prior to his returning to the business premises of Mr Abu-Dabat; and
· had a conversation with Mr Abu-Dabat on 29 August 2018 about employment opportunities.[17]
[17] Exhibit 1, T Documents, T 8, pages 45-50, Non Compliance Event report for Job Seeker failed to accept suitable job; T 18, pages 68-69, Statement by Applicant; Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, Annexures 1 and 2; Exhibit 4, Applicant statement dated 9 February 2019; Exhibit 10, Note File History for Mr Stephen Cullen.
The evidence before the Tribunal includes a number of written statements from the Applicant, witness statements from Ms Clark and Mr Abu-Dabat, section 37 T-Documents, the Respondent’s Statement of Issues, Facts and Contentions with attachments, medical certificates and HELP file history.
Further at Hearing the Applicant gave sworn evidence in person and both Ms Clark and Mr Abu Dabat gave evidence under affirmation via telephone.
The Respondent contends that the Applicant was offered suitable employment on
29 August 2018 and that he refused or failed to accept this offer, committing a work refusal failure pursuant to section 42AD of the Administration Act.[18] The Respondent relies on the following evidence:[19]
[18] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraphs 20-21, page 4.
[19] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraph 22, page 4.
a) Non Compliance Report (for Job Seeker failed to accept suitable job) dated 29 August 2019 (T8, at f49) that states:
I went to meet employer at 11.30 as arranged - employer was aware that I was meeting with 2 perspective interviewees at that time. When I got out to employer at 11.15 he advised me one of the job seekers called Stephen had already attended at 10.45 approx, he had gone to the front shop and asked where (expletive) Lisa was, the worker was unaware but called the owner JR.
The JS then asked JR where (expletive) Lisa was as she was meant to be meeting him there. The employer said you are early Lisa advised she would meet me at 11.30 with potential employees, however lets talk about what you can do. JS mentioned that he was told about the HR driver job, and employer explained that was with his business partner Miami landscapes on his site and pointed out the landscaping business to the JS - employer stated it was a part time truck driver role. JS said look at the dust and l am not fit to drive an (expletive) truck I have a bad back. The employer then said OK fair enough I have the perfect job for you in that case working in my store at the front, just 4 hours a day no heavy lifting, just stocking the fruit and vegetables and making sure the store is tidy and clean and being friendly with any customers that might need assistance., and it is an immediate start, we can give you your first shift tomorrow. The JS said I am not working in an (expletive) shop with fruit and veg you can stick that, all I want is for Lisa (EC) to get me my tickets to work in the mines, and he walked off leaving the employer very confused, as he has not had someone come for an interview ever and turn down work. The employer has advised me that the second candidate I organised that arrived at the correct time interviewed well and did accept his offer of employment and will start tomorrow.
b) Participation Compliance Workflows Summary Report (T25, f110-111) dated 29 August 2018 that states:
Further comments from provider: conversations that took place during the course of the morning prior to the job seeker going to the employer at a time prior to that arranged and discussed earlier with the JS. Also the JS said he refused to go even after I had offered him assistance with a fuel card, so it was unexpected that he did go and before the appointed time. I had asked job seeker to call me at 9:30 to discuss the details but he did not do that and instead making an earlier trip to the employer at which point nobody was at the work site for him to talk to. He arrived at our office in a very abusive mood, and so I quickly called the employer to ask if I could come any earlier but he said 11.30 was more suitable. When I went back to see the JS he had already left the building which is when I tried to call him to say I would meet him at the site at 11.30 but he refused to go and hung up the call and said he would complain to the government. It is therefore quite confusing that he did attend at a time not arranged.
c) Applicant's statement dated 30 September 2018 (T18, f68-69) that states:
17. I arrive at Miami landscapes again. I go to the gardening shop and ask the woman at the cash register about a job she doesn't know anything about it. And called the owner he'ell be here in ten min.
18. I go to my car and wait for 20.min. then go back in side and say to the lady is the owner here his car is there so we walk over to him.
19. He says the job is working in the fruit shop.
20. Confused and shocked I say I have not done that before I don't think it's suitable for me. He says you don't want the job then I said not really and leave.
d) Statement by Jehad Abu-Dabat dated 4 March 2019 that states:
7. On 29 August 2018, well before the 11.30am appointment time a man, who I now understand to be Stephen Cullen, came in and asked to speak with me about the job that was on offer.
8. Mr Cullen said to me don't expect me to drive a truck because he thought it was too dusty and that he had a bad back.
9. I told Mr Cullen that I actually wanted to give him a job in my grocery store, this would be behind the till and would not involve any heavy lifting and I offered him this job.
10. I recall Mr Cullen made several remarks about my offering him this work, telling me there were lots of other people who could do this work and why offer this work to him.
11. I asked Mr Cullen whether he wanted the job or not and he told me he didn't and then left the premises.
At the Hearing the Applicant told the Tribunal that:
· Mr Abu-Dabat said the job was in the fruit shop.
· He told Mr Abu-Dabat that he had never worked in a fruit shop or in retail; he was in earth moving and construction. He told Mr Abu-Dabat that he did not think the fruit shop job was suitable.
· When Mr Abu-Dabat asked him ‘so you don’t want the job’ he said ‘not really’ and he went home.
· He went to Mr Abu-Dabat’s house which is next door to the business premises on 31 August 2018 and asked him what he said to get him cancelled. The Applicant said that Mr Abu-Dabat told him he had refused the job, that he would have trained him, there was no lifting, he was meant to be there at 11.30 am and the job would be 4 hours a day.
· He did not refuse the job, he said it was not suitable, but would do it if he had to. Mr Abu-Dabat asked him to leave his house.
· The appointment was not clear; he did not know the kind of job or circumstances and that he believes it was a job alert and not compulsory. He would normally get something in writing not via text message.
· He contends that Mr Abu-Dabat did not offer him a job and that he said ‘you should be able to get someone’.
· He would not know if he can do the job until he tries. He can do anything.
· He does not know how to work a till.
· It was a misunderstanding – he was just saying the job was not suitable, if he had of known what would happen he would have said yes.
· He was trying to get HELP to assist him to do courses that would allow him to get a job in the mines.
On cross-examination by the Respondent, the Applicant told the Tribunal:
· He did not read the Job Plans he just signed them.
· He agreed that he was required to gain and maintain employment.
· He agreed he knew he had to look for suitable work not just what he wants to do, he agreed that it was any job he was capable of doing.
· He agreed that if HELP says he must contact them, he does and if offered a job he should take it – if the job is suitable.
· His best job would be in an excavator in the mines it has a canteen for food and a gym for his back.
· He could have tried the fruit shop job.
· The job in the fruit shop was not offered to him, he was asked if he was interested in the job.
· When asked ‘you did not want the job’, the Applicant replied ‘no not particularly but would if had to’.
· When asked ‘you were offered and refused’, the Applicant replied ‘no, was not offered the job’.
At Hearing, Ms Clark gave evidence which was consistent with her witness statement[20] and the ‘Non Compliance Event report for job seeker failed to accept suitable job’.[21] It was clear that the relationship between Ms Clark and the Applicant was strained. Ms Clark confirmed to the Tribunal that her records of what occurred on 29 August 2018 and the interactions leading up to, and after this date with the Applicant were made directly into the system at the time the interaction occurred or on the rare occasion were taken down on paper and then transcribed into their system.
[20] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, Annexure 2, Witness Statement of Lisa Clark.
[21] Exhibit 1, T Documents, T 8, pages 45-50, Non Compliance Event report for Job Seeker failed to accept suitable job.
At Hearing, Mr Abu-Dabat gave evidence which was consistent with his witness statement.[22] Mr Abu-Dabat told the Tribunal in response to a question asked by the Applicant that he had offered the Applicant a job and he refused the job saying ‘why me hundreds of people would love to work at the fruit shop’.
[22] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, Annexure 1, Witness Statement of Jehad Abu-Dabat.
The evidence provided by the Applicant is somewhat contradictory in relation to whether or not he believed he had been offered a job, and whether he had refused such an offer or failed to accept such an offer of employment on 29 August 2018. What is clear is that the Applicant did not want to work in the fruit shop and did not leave Mr Abu-Dabat, as the perspective employer, with any doubt that he did not want the job.
The Tribunal prefers the evidence of Ms Clark and Mr Abu-Dabat in relation to the genuine offer of employment and the Applicant’s subsequent refusal or failure to accept the offer of employment. Both Ms Clark and Mr Abu-Dabat provided evidence that the second job seeker who attended Mr Abu-Dabat’s premises after the Applicant accepted the position and commenced the next day.
Accordingly, based on the evidence before the Tribunal, I find that the Applicant refused or failed to accept an offer of employment on 29 August 2018.
The Tribunal must now consider whether the job offer was for suitable employment. The Respondent contends that the job offered to the Applicant on 29 August 2018 was suitable[23] relying upon the following evidence:[24]
[23] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraph 24, page 5.
[24] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraph 25, pages 5-6.
a) Participation Compliance Workflows Summary Report dated 29 August 2018 (T25, at f 110) that states:
Stephen has refused an acceptable job offer due to stating he has no previous experience. Training would have been given on the job. The job Stephen was offered did not entail heavy lifting which was confirmed by the employer. Therefore, would not exacerbate his condition. As there are no other significant barriers Stephen would face with the employment, the job was suitable. Penalty applied.
b) Statement by Jehad Abu-Dabat dated 4 March 2019 that states:
9. I told Mr Cullen that I actually wanted to give him a job in my grocery store, this would be behind the till and would not involve any heavy lifting and I offered him this job.
15. I can confirm this was a genuine job offer, it was part time work of about 20 hours per week at award wages of $23.65 per hour
c) Applicant's evidence contained in the decision of the AAT1:
20. When asked why the job was not a suitable job Mr Cullen explained that the work was only for a period of four hours a day and it would take him time and money (fuel and tyres) to drive there and back. He wanted HELP to fund a safety course for him to enable him to apply for a job in the mines. He estimated that he could earn over $100,000 a year in the mines on a fly- in fly-out basis and then retire with a lot of money after about three years. He described that job as a suitable job. However, the job in the fruit shop was not suitable because it would cost him money as he had to drive there and back for so few hours of work.
The Respondent further contended that the Applicant’s assertion that the position offered to him by Mr Abu-Dabat was not suitable because it was only for four hours a day and it would take him time and money to drive there and back is not a basis for finding this was not suitable employment. The Respondent contends that the fruit and vegetable store is approximately 16 kilometres from the Applicant’s home address and that the travel time or cost would not be excessive compared to the amount of income that could have been derived had he accepted the position.[25]
[25] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraphs 27-29, page 6.
Based on the evidence before the Tribunal, I find that the job at the fruit and vegetable shop constituted suitable employment as the Applicant would have been provided with the required training, it was in a reasonable traveling vicinity of the Applicant’s home, and the duties would not require heavy lifting. The Tribunal is not persuaded by the Applicant’s contentions that the job was not suitable because he did not have relevant experience and he wanted employment in the mines which would be more suited to his past work experience.
I find that the Applicant committed a work refusal failure pursuant to section 42AD of the Administration Act by refusing or failing to accept the job he was offered at the fruit and vegetable shop, being a job that constituted suitable employment.
Did the Applicant have a reasonable excuse for refusing or failing to accept the offer of employment?
As I have found that the Applicant committed a work refusal failure, I must consider whether in accordance with section 42AG of the Administration Act the Applicant had a reasonable excuse for refusing or failing to accept the offer of employment.
The Respondent contends that the Applicant has not raised any of the matters set out in section 5 of the Determination as his reasons for failing to accept the offer of employment made to him by Mr Abu-Dabat on 29 August 2018.[26] Based on the evidence before the Tribunal I accept that contention.
[26] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraphs 31-32, pages 6-7.
As set out above the Applicant contended that the job was not suitable, there was a misunderstanding and as such he contended that he had a reasonable excuse for not accepting the job. The Applicant further told the Tribunal at Hearing:
· When asked by the Respondent whether he had said the following to the SSCSD:
20. When asked why the job was not a suitable job Mr Cullen explained that the work was only for a period of four hours a day and it would take him time and money (fuel and tyres) to drive there and back. He wanted HELP to fund a safety course for him to enable him to apply for a job in the mines. He estimated that he could earn over $100,000 a year in the mines on a fly- in fly-out basis and then retire with a lot of money after about three years. He described that job as a suitable job. However the job in the fruit shop was not suitable because it would cost him money as he had to drive there and back for so few hours of work.
the Applicant said yes he had said that and he was trying to say he was going to retire in a couple of years and the fruit shop will not give him enough to retire, he wanted Ms Clark to help him do the courses to get into the mines.
· He did not refuse the job because he wants to go to the mines, rather the issue is that Ms Clark has not done her job.
· He has health issues relating to his back and dust allergies.
· When asked by the Respondent, the Applicant agreed that the medical evidence before the Tribunal did not state that he could not work in the fruit shop.
· He could have tried doing the job, but thought they were nuts, he should have got the offer in writing, but he did not think the job was suitable.
· He had a reasonable excuse for refusing the job in the context of what happened on the morning of 29 August 2018, unusual circumstances, what the job was (he thought it was a truck driving job) and medical issues.
Ms Clark gave evidence that the Applicant had advised her that he suffered from back problems, however had not provided any medical documentation to HELP or to her knowledge to Centrelink about these issues.[27]
[27] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, Annexure 2, Witness Statement of Lisa Clark.
In statements dated 9 February 2019 and 30 September 2018[28] the Applicant make reference to his health problems being a reason as to why the job was not suitable,[29] however he has not provided the Tribunal with any corroborating evidence in relation to his conditions at 29 August 2018 or their overall impact on his ability to undertake the job in the fruit and vegetable shop.
[28] Exhibit 1, T Documents, T 18, page 69, paragraph 27, Statement by Applicant.
[29] Exhibit 4, Applicant statement dated 9 February 2019.
In the statements dated 9 February 2019[30] and 30 September 2018[31] the Applicant outlines his previous interactions with job providers when he has had an interview arranged and also stated that he had not read the entirety of the text relating to his appointment on 29 August 2018. It is also clear from these statements, and the evidence provided at Hearing, that the Applicant had a challenging relationship with Ms Clark and there was some confusion on the Applicant’s part in relation to his appointment on 29 August 2018 and the job to which it related.
[30] Exhibit 4, Applicant statement dated 9 February 2019.
[31] Exhibit 1, T Documents, T 18, pages 68-69, Statement by Applicant.
In a Participation Compliance Workflow Summary Report dated 29 August 2018 it states:[32]
Stephen states he explained to the employer that he had not worked in a grocery store previously, therefore he did not believe it was a suitable job. Stephen has explained he believes the job was a scam and there was no job at all, as he was originally under the impression he was going to a truck job, then a gardening job and finally a grocery job. Stephen explains that at no point was it explained he would be trained on the job. Stephan explained he also had back issues, but then stated as long as the company had compo he would accept the job. Stephan was very adamant he was being set up by his provider as he states he had issues previously in regards to job search requirements.
[32] Exhibit 1, T Documents, T 25, page 110, Centrelink mainframe screen captures.
The Respondent contends that the Applicant’s impression that he was going to be offered a truck driver’s position as opposed to a position in a fruit and vegetable shop does not itself make such a position unsuitable.[33] The Respondent contends that the Applicant did not have a reasonable excuse for refusing or failing to accept an offer of suitable employment on 29 August 2018.[34]
[33] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraph 34, page 7.
[34] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraph 37, page 8.
Of relevance to the consideration of the circumstances surrounding the job being offered and how the job is offered the decision in Secretary, Department of Education, Employment and Workplace Relations and Parsons [2009] AATA 77 (6 February 2009) is relevant. The Tribunal noted:
18. While Mr Parsons may have preferred a job that involved fork-lift driving alone, he had signed an activity agreement that required him to accept jobs he was capable of doing. Centrelink submitted that merely because the position offered was not the job for which Mr Parsons understood he had initially applied for does not make his actions in leaving the job reasonable. Centrelink argued that if a suitable position is offered instead of the one applied for, this does not in itself render the job unsuitable. Centrelink cited as authority the comments of Lindgren J in Pendell Marabouti v Department of Employment, Education, Training and Youth Affairs [1998] FCA 1452:
The first allegedly relevant consideration was that the job offered was not the job for which Mr Marabouti had applied. However, the CMAA refers to "a suitable job offer that becomes available". It does not refer to the circumstances in which the offer becomes available. In particular, it does not specify that the person must have applied for the job offered. The fact that a person applies for one job, is unsuccessful and is offered another does not, in itself, render the latter job unsuitable.
Based on the evidence before the Tribunal, in particular that provided by the Applicant, while I accept there was a misunderstanding in relation to the what the job was for and when the interview was to take place, the overall evidence of the Applicant is not consistent and I am not persuaded that he had a reasonable excuse to refuse or fail to accept the offer of suitable employment made to him on 29 August 2018. Rather, the Applicant refused or failed to accept the offer of employment because he did not want the job as he did not think it was a suitable role. The Applicant would prefer to undertake the training required to secure a position in the mines and he did not appreciate that the consequence of his actions would be that his NSA would be suspended.
CONCLUSION
I find that the Applicant:
(a)refused or failed to accept the offer of employment made to him on 29 August 2018;
(b)the job offered to him on 29 August 2018 constituted suitable employment; and
(c)did not have a reasonable excuse for refusing or failing to accept the offer of employment made to him on 29 August 2018.
Accordingly, the decision under review is affirmed.
I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
.........................[SGD]...............................................
Associate
Dated: 1 May 2019
Dates of hearing: 21 March 2019 Applicant: In Person Advocate for the Respondent: Mr Rick McQuinlan Solicitors for the Respondent: Department of Human Services
0
2
0