Dates; Secretary Department of Education, Employment and Workplace Relations and
[2008] AATA 54
•18 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 54
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1631
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
GRAHAM DATES
Respondent
DECISION
Tribunal Senior Member M D Allen Date18 January 2008
PlaceSydney
Decision The decision under review is SET ASIDE and this matter remitted to the Applicant with the direction that the decision of the Authorised Review Officer of 8 September 2006 is to be reinstated.
................[sgd].....................
M D Allen Senior Member
CATCHWORDS
SOCIAL SECURITY – review of decision setting aside decision of social security appeals tribunal imposing upon respondent an eight week period in which newstart allowance was not made payable to him – whether respondent was dismissed for misconduct as a worker which employer regarded as terminating contract of employment and not for some other reason – what amounts to misconduct answered against background of particular employee’s circumstances – not tribunals jurisdiction to regard impugned conduct as amounting to misconduct justifying dismissal – if employee gives employer excuse to terminate employment because of perceived conduct, employer entitled to act upon opportunity – decision under review set aside
LEGISLATION
Social Security Act 1991 subsections 629(1) and 629(1)(c)
CASE LAW
Re Secretary, Department of Employment and Workplace Relations v Payne [2007] AATA 1745
REASONS FOR DECISION
18 January 2008 Senior Member M D Allen 1. This is an application by the Secretary of what is now known as the Department of Education, Employment and Workplace Relations (formerly the Department of Employment and Workplace Relations) to set aside a decision of the Social Security Appeals Tribunal made the 18th day of October 2006.
2. That decision set aside a decision of a Centrelink Authorised Review Officer who upheld the imposition upon the Respondent of an eight week period in which Newstart Allowance was not payable to him on the ground that he had become unemployed due to his misconduct as a worker.
3. Subsection 629(1) of the Social Security Act 1991 states inter alia:
“A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:
(a) …
(b) …
(c) is unemployed due to the person’s misconduct as a worker; or
(d) …
(e) …”
4. The Respondent gave evidence to the Tribunal. This evidence at times conflicted with the evidence he allegedly gave to the SSAT but the reasons for decision of that Tribunal does not purport to be a transcript of his evidence before that Tribunal. Where there is any perceived conflict I propose to act upon the sworn evidence of the Applicant before me.
5. There is no dispute that the Respondent was employed as a driver operating out of Newcastle by a company D.C.T. Pty Ltd, whose head office is in Queensland. The Employment Separation Certificate issued by that company states, that the Respondent was dismissed because of misconduct, the reason being that he allowed members of his family to carry out his normal daily duties without notifying management of his absence.
6. Mr Mathew Easter is the Payroll Officer of D.C.T. Pty Ltd. In evidence to this Tribunal he stated that if the Respondent was unable to carry out his duties as a driver, he would organise casual employees himself and notify the company in advance. The casual drivers proposed by the Applicant would have to be approved by the company.
7. The impugned conduct of the Respondent was that he had arranged for his son Craig Dates to drive a company vehicle for him without informing the company and the company was only advised of the arrangement when a depot manager telephoned the company offices.
8. If the company had been aware that Craig Dates was the proposed driver, then it would not have approved that arrangement, as Craig Dates had previously been employed by the company and there were issues relating to him.
9. If relief drivers were authorised by the company then they were paid directly by the company. If, as Paymaster, Mr Easter had received any request for payment from Craig Dates, he would have not paid him as Craig Dates was not entitled to drive the company’s trucks.
10. The Respondent for his part said that as the normal relief driver in Newcastle was not available, he had telephoned the company in Brisbane and had spoken to a person he knew as “Alf”. Alf had said “just get hold of who you can” to which the Respondent said he was going to put his “young bloke in it”. Alf acquiesced in this arrangement.
11. The person “Alf” is no longer employed by the company. I am however more persuaded by Mr Easter’s evidence. According to Mr Easter, and not challenged by the Respondent, the Respondent would notify the company in advance if a relief driver was to be used. That did not occur when the Respondent engaged his son. Relief drivers were paid by the company but on the occasion Craig Dates drove the Respondent paid him out of his own monies and I draw the inference that this was done in order to keep from the company the fact that the Respondent’s son was carrying out his duties for him.
12. Even on the Respondent’s own evidence Craig Dates when driving had had on one occasion a passenger. Although the Respondent stated that at times the company policy of no passengers to be carried in company vehicles was waived or a blind eye turned, the evidence of Mr Easter was that the company always adhered to the policy of no passengers in company vehicles.
13. It is not necessary that I determine in these proceedings whose version of events is correct. The SSAT proceeded to question whether the impugned conduct by the Respondent could be regarded as misconduct justifying dismissal. In my opinion this approach is misconceived, notwithstanding decisions of this Tribunal that have adopted that approach.
14. In this matter I am sitting as an Administrative Tribunal, not a Court, to ascertain whether a Social Security Benefit should be paid to in this case, the Respondent, a former employee.
15. I am not sitting as an Industrial Tribunal and even if I were to consider that the penalty of dismissal was unduly severe, that is irrelevant to my task.
16. My task, as I understand the legislation in question namely paragraph 629(1)(c) of the SSA is to satisfy myself that the dismissal of the former employee was for perceived misconduct and not some other reason. Thus although an Industrial Tribunal or Court may regard the impugned conduct as not amounting to misconduct justifying dismissal, that is not my jurisdiction. All I need to satisfy myself is that the employer dismissed the former employee because of conduct engaged in by the employee and which the employer regarded as terminating the mutuality of the contract of employment and not for some other reasons.
17. It maybe, as in this case, it is suggested that the employer wished to terminate the services of the employee for other reasons. Suffice is to say that if the employee gives the employer an excuse to terminate his employment because of perceived conduct, the employer is entitled to act upon the opportunity given to him and a dismissal for misconduct cannot be construed otherwise even though the employer readily availed himself at the opportunity offered to him.
18. The task for the Administrative Appeals Tribunal is to be satisfied that the Respondent was dismissed for misconduct as a worker and not for some other reason. As to what constitutes misconduct as a worker, Deputy President Forgie in Secretary Department of Employment and Workplace Relations and Payne [2007] AATA 1745 at para 63 pointed out that what amounts to misconduct and to persons’ being unemployed due to misconduct at work can only be answered against the background of a particular employee’s circumstances in a particular workplace.
19. In this matter it is clear that the company took the view that the actions of the Respondent amounted to misconduct as a worker and I am satisfied that it was for reasons of misconduct that the Applicant was dismissed.
20. Once it is accepted that the Respondent became unemployed due to his misconduct as a worker, there is no discretion as s 629(1) SSA makes mandatory a non-payment of Newstart Allowance for a period of eight weeks.
21. The decision under review is set aside and this matter remitted to the Applicant with the direction that the decision of the ARO of 8 September 2006 is to be reinstated.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: ........[sgd]........
Mwela Kapapa, AssociateDate of Hearing 10 January 2008
Date of Decision 18 January 2008Solicitor for the Applicant Centrelink Legal Services
Solicitor for the Respondent Self-represented
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