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

[2008] AATA 1031

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1031

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1726

GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANCIS DONOVAN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date17 November 2008

PlaceBrisbane (heard in Cairns)

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – Participation failure – Applicant’s conduct at job interview – Whether applicant’s conduct at interview constitutes participation failure – Committed participation failure – Failure to comply with requirement that notified – Requirement to comply reasonable – Notified of effect of failure to comply – No reasonable excuse – Decision affirmed

PRACTICE AND PROCEDURE – Jurisdiction – Reviewable decision – Newstart participation failure – First participation failure – Whether decision to record first participation failure reviewable – In present circumstances Tribunal has jurisdiction

Social Security Act 1991 (Cth), s 624

Social Security (Administration) Act 1999 (Cth), ss 178, 179

REASONS FOR DECISION

17 November 2008 Senior Member Bernard J McCabe         

1.      Mr Francis Donovan, the applicant, is unemployed and in receipt of newstart allowance from Centrelink. The Secretary to the Department of Education, Employment and Workplace Relations, the respondent, says Mr Donovan has committed a participation breach in that he failed to conduct himself appropriately at a job interview in January 2008. Mr Donovan disagrees. He has asked the Tribunal to reconsider the decision.

2.      A question arose at the outset of the hearing over whether there was a reviewable decision before the Tribunal. The Tribunal ordinarily deals with the decision to impose a non-payment period following the accumulation of three participation breaches within a 12 month period. In this case, there has been at most one participation breach. As a practical matter, that will only be significant if Mr Donovan commits a further two breaches between now and January 2009. For the reasons I give below, I accept there is a reviewable decision. I am also satisfied Mr Donovan conducted himself inappropriately in January 2008 and in so doing committed a participation breach.

The facts

3.      Mr Donovan entered into an activity agreement with his employment service provider. An unsigned copy of that agreement is included in Exhibit 1 at folios 20-24. The agreement refers to a commitment to accept referrals to all suitable positions.

4.      Mr Donovan says he was away in Normanton with his partner and her family in early January 2008 when he received a telephone call from the manager of Pace Linen, a commercial laundry in Cairns. He was asked to attend for an interview. Mr Donovan said he would attend when he returned at the end of that week.

5.      The applicant says he had not heard of Pace. He said he was not sure of its location. He says he obtained an address for the company and resolved to make a visit so he could familiarise himself with its location. On 14 January, he arrived at the company’s premises. At the hearing, he insisted he was not attending for the purposes of a job interview. He said he certainly was not dressed appropriately for an interview: he was wearing thongs, stubbies (work shorts) and a polo shirt. He struck up a conversation with the manager, who then proceeded to ask him a series of questions and discussed the job. Mr Donovan says he thought the conversation went well, and he and the manager parted company on good terms. But Mr Donovan insisted he was merely there to arrange a time for an interview.

6.      Mr Donovan’s case manager at his employment service provider, Ms Frousheger, supplied a statement for the purposes of the hearing. The statement records her recollections of a meeting she had with Mr Donovan on 17 January 2008. At that point, Ms Frousheger had not obtained any feedback from the manager at Pace. Ms Frousheger said Mr Donovan told her he had refused the position because he had “something else in the pipeworks”. She subsequently heard from the manager at Pace, who said Mr Donovan was not interested in the job because he had other opportunities. He had also dressed inappropriately for the interview.

7.      Ms Frousheger says Mr Donovan had been asked to attend an interview at Pace on 14 January 2008 at 10am. That evidence is directly at odds with the evidence given by Mr Donovan who insisted the meeting was not intended to be an interview.

8.      I gave Mr Donovan the opportunity to question Ms Frousheger. He said he did not wish to do so. Indeed, he was initially reluctant to read her statement, although I insisted that he do so during the course of a brief adjournment. I also note Mr Donovan appeared to be affected by alcohol at the hearing, albeit not so badly affected that I had reason to doubt he was fit to participate in the proceedings. He confirmed he had been drinking earlier in the day. 

9.      I prefer the account of Ms Frousheger to that offered by Mr Donovan. His evidence was vague and inconsistent. His story – of stumbling into an impromptu interview at precisely the time which Ms Frousheger says had been arranged for a formal interview – seems unlikely. I am satisfied Mr Donovan was told he was expected to attend at Pace for an interview at a particular time. I accept he was not appropriately dressed. I also accept he made it clear to the manager at Pace that he was not interested in the position.

The legislation

10. Section 624(1) of the Social Security Act 1991 (“the Act”) says a person commits a newstart participation failure if he or she fails to comply with a requirement that was notified to him under the Act, provided the requirement was reasonable and the notification includes a statement setting out the consequences of failing to comply. I am satisfied Mr Donovan was told of the requirement to attend the interview, and the notification was reasonable and included a warning of the consequences if the applicant failed to comply with the notice.

11. Section 624(2) of the Act says there is no participation failure if the applicant had a reasonable excuse. There is a legislative instrument that helps to define the expression “reasonable excuse”: see Social Security (Reasonable Excuse) (DEWR) Determination 2006. I did not understand Mr Donovan to argue that he had a reasonable excuse for not complying with the requirement. In any event, I am not satisfied that the facts I have found disclose such an excuse. It follows Mr Donovan has committed a participation failure.

Jurisdiction

12. The Tribunal has jurisdiction to review decisions made by an officer under the social security law: s 178 of the Social Security (Administration) Act 1999 (“the SSA Act). The Tribunal’s jurisdiction only arises once the Social Security Appeals Tribunal (“the SSAT”) has completed its work: s 179 of the SSA Act. In this case, the SSAT affirmed the decision of Centrelink to apply a newstart participation failure to Mr Donovan. It could be argued that there is no decision to affirm since s 624(1) of the Act does not require a decision-maker to do anything other than form a view. Even then, it is only necessary to form a view in connection with a decision to impose a non-payment period under another section. There has been no decision to that effect, nor could there be in the absence of two other breaches. Even so, I accept there has been a decision to record a participation failure that might count against Mr Donovan. In those circumstances, and in the absence of submissions suggesting the Tribunal does not have jurisdiction, I accept the matter is properly before the Tribunal.

Conclusion

13.     The decision under review is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:....................................[Sgd]..........................................
  Michael Buckingham, Associate

Date of Hearing  4 November 2008
Date of Decision  17 November 2008
Applicant was self-represented
Advocate for the respondent     Mr J Guthrie, Centrelink