DTMV and Secretary, Department of Social Services (Social services second review)

The Administrative Appeals Tribunal considered a dispute between DTMV (the applicant) and the Secretary of the Department of Social Services concerning the application of an income maintenance period (IMP) to the applicant's Jobseeker Payment (JSP) claim. The applicant had received a redundancy payment and an ex gratia payment from his former employer. The Secretary determined that these payments constituted termination payments, triggering an IMP, which the applicant sought to have reviewed.

The central legal issues before the Tribunal were whether the ex gratia payment of $51,072 was appropriately considered a termination payment for the purposes of calculating an IMP, and if so, whether any part of the IMP should be waived due to severe financial hardship. The applicant accepted that his redundancy, unused annual leave, and long-service leave payments were termination payments, but argued that the ex gratia payment would have been made regardless of his dismissal.

The Tribunal's reasoning focused on the definition of "termination payment" under the Social Security Act 1991 (Cth). While the definition was amended to include "any other payment that is connected with the termination of a person’s employment," the Tribunal found that the ex gratia payment in this instance was not sufficiently connected to the termination. The Tribunal noted that the Explanatory Memorandum to the relevant amendment provided examples of termination payments, including gratuity payments or "golden handshakes," but distinguished the applicant's ex gratia payment as one that would have been made irrespective of the termination.

Consequently, the Tribunal set aside the reviewable decision and remitted the matter to the Secretary for reconsideration. The direction was that the $51,072 ex gratia payment should not be treated as a termination payment for the purpose of calculating the income maintenance period.