DUNCAN and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 943
•9 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 943
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1454
General Administrative Division ) Re Marc DUNCAN Applicant
And
Secretary, Department of Education, Employment and Workplace Relations
Respondent
DECISION
Tribunal Dr Ion Alexander, Member Date9 December 2009
PlaceSydney
Decision The decision under review is set aside. ..................[sgd]............................
Dr I Alexander
Member
CATCHWORDS
Social security – newstart allowance – eight week non-payment period –misconduct as a worker – voluntary act of the person – voluntary act was reasonable –the decision under review is set aside.
LEGISLATION
Social Security Act 1991 – sections 629
REASONS FOR DECISION
9 December 2009
Dr Ion Alexander, Member
1. In this application Mr Duncan seeks review of a decision of the Social Security Appeals Tribunal (SSAT) dated 19 March 2009.
2. The decision had affirmed the decision of a Centrelink Authorised Review Officer (ARO) to apply an eight week non-payment period with respect of a claim for newstart allowance pursuant to Section 629(1)(c) of the Social Security Act 1991 (the Act) on the ground that Mr Duncan had become unemployed due to his misconduct as a worker. The original decision to impose the eight week non payment period was made on 7 October 2008.
3. Mr Duncan had applied for newstart allowance after having been dismissed by his employer on the 11 September 2008 because of alleged misconduct following an altercation with another employee.
4. At the hearing on 12 November 2009 Mr Duncan was unrepresented but gave oral evidence.
5. After having reviewed all the evidence and for reasons that follow I find that Mr Duncan was unemployed due to a voluntary act of his and I am satisfied that his voluntary act was reasonable.
6. This means that he was eligible for newstart allowance without an 8 week non- payment period and that his application has been successful.
Documentary Evidence
7. An employment separation certificate dated 11 September 2008 stated that Mr Duncan was employed at Castle Chemicals Pty Ltd at Sandgate from 23 July 2007 until 11 September 2008 when he was dismissed for “misconduct as an employee”.
8. The certificate states that Mr Duncan was stood down following a “physical altercation with workmate” and that he was offered a second chance with counselling which he did not accept.
9. In a written statement dated 23 September 2008 Mr Duncan reported that the incident at work occurred because another employee, Mr P, had sprayed him with liquid while cleaning out a pump.
10. Mr Duncan responded by spraying Mr P with some water. Mr P responded by swearing at Mr Duncan and threatening to knock him out. The two men then grabbed each other but were quickly separated by the foreman.
11. Mr Duncan claimed that he was stood down for two days and that the other employee was allowed to continue at work.
12. Subsequently the “boss”, the General Manager, told Mr Duncan he would be sent to a counsellor for six sessions and depending on the result a decision would be made as to whether his employment would continue.
13. Mr Duncan was also told that he would be expected to do additional work for the same pay.
14. In the record of a telephone interview conducted by a Centrelink ARO dated 30 October 2008 the General Manager of Castle Chemicals Pty Ltd, Mr B, confirmed that Mr Duncan had been stood down following a physical altercation with another employee.
15. Mr B said that on the following day he had informed Mr Duncan that he would continue to be employed if he came to work on the next morning at 7.30 am and apologized to all the witnesses to the incident and also attend counselling that the employer was prepared to pay for.
16. Mr B said that Mr Duncan did not turn up the following morning and after unsuccessfully trying to contact him by telephone assumed that Mr Duncan no longer wanted his job and terminated his employment with an SMS message.
17. Mr B claimed that although Mr Duncan had some past issues with aggression and some problems with attendance his employment would have continued if he had complied with the employer’s requests.
Oral evidence
18. In his oral evidence Mr Duncan confirmed the substance of his written statement but added some details.
19. Mr Duncan said that at the time he had been sprayed with liquid by Mr P he had been concerned that the liquid may have contained acid and/or solvent. He also said that when he walked over to the toilet facility to wash off the liquid Mr P had continued to abuse him verbally and that was when they physically grabbed each other.
20. Mr Duncan stated that after the incident the General Manager, Mr B, stood him down for two days and told him to make contact that afternoon. The other employee was apparently not stood down.
21. Mr Duncan tried to contact Mr B but was unable to do so and on the following day received an SMS message directing him to attend a meeting at 1pm
22. Mr Duncan attended that meeting and explained that Mr B told him that he sided with Mr P because of his history of having been bullied at school.
23. Mr B then told Mr Duncan that if he wanted to continue his employment he would have to agree to apologize to the witnesses of the incident as well as other members of the company, attend six sessions with a counsellor and perform extra duties for the same pay.
24. Mr Duncan said that although his employer was prepared to pay for the counsellor the sessions would occur after work on his time and he was told his job was not guaranteed even if he agreed to the counselling.
25. Mr Duncan explained that he considered he had been unfairly treated in that he had been singled out for an incident which had been provoked by the other employee. He added that he felt he was in a no win situation and that in the circumstances the demands by his employer were not reasonable and therefore he decided not to return to work even though he understood that he would lose his job.
26. Mr Duncan explained that there had been recurring difficulties with Mr P since about three months into his employment and that other employees had similar difficulties.
27. Mr Duncan described Mr P as a long standing employee who was frequently verbally abusive to other employees and indicated that there had been numerous complaints to the General Manager about Mr P’s behaviour. According to Mr Duncan, the General Manager treated Mr P more favourably than other employees and despite several warnings Mr P’s behaviour would improve for only a few days.
28. Mr Duncan claimed that he was aware of at least four other employees who had been dismissed following difficulties with Mr P.
29. In response to a question from the Tribunal Mr Duncan explained that his so called attendance issues arose because as part of his workplace agreement he had given up his leave entitlements for an increase in his pay. His partner was pregnant at the time and he had needed some time off to help with the care of his other young child.
30. I note that since Mr Duncan was dismissed he and his partner have separated because they were no longer able to afford rent for accommodation. His partner and two daughters aged 1 and 2 years are now living with the maternal grandmother and he has moved in with his mother. Mr Duncan also has child support commitments for two older children from a previous relationship.
31. Mr Duncan explained that he decided not to return to work despite the financial and other consequences because he felt that the circumstances at work would not change and that he would continue to suffer regular harassment because Mr P would continue to benefit from more favourable treatment.
32. In oral evidence Mr Duncan’s partner confirmed that he had been having difficulties at work for some time and that he had regularly complained about harassment by Mr P and that this was making him feel depressed. She explained that Mr Duncan would have liked to have kept his job but felt that he had no real choice in refusing the conditions to continue employment because the General Manager was unlikely to change his attitude.
legislation
33. As Centrelink made the original decision which became the subject of this review on 7 October 2008 I must review the decision according to the legislation that was in force on that date.
34. Section 629 (now repealed) of the Social Security Act 1991 as in force on 7 October 2009, determined the circumstances in which newstart allowance may not be payable because of repeated or more serious failure. That section provided, relevantly, as follows:
(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
(c) is unemployed due to the person’s misconduct as a worker; or
…
(4) Paragraph (1)(b) does not apply if the Secretary is satisfied that the person’s voluntary act was reasonable.
35. The relevant provisions for the purpose of this application are paragraph 629(1)(b), paragraph 629(1)(c) and subsection 629(4) which stated that paragraph 629(1)(b) does not apply “if the Secretary is satisfied that the person’s voluntary act was reasonable”.
issues
36. Accordingly, the issues before the Tribunal are:
(i)Whether Mr Duncan’s unemployment was due to his misconduct as a worker; and
(ii)Whether an eight week non payment period should apply to his newstart allowance.
Consideration
37. The first issue to determine is whether Mr Duncan’s unemployment was due to his misconduct as a worker.
38. Notwithstanding the fact that the employment separation certificate states that Mr Duncan was dismissed because of his misconduct as an employee I consider, on the evidence before me, that the reason for his unemployment warrants further examination.
39. There is no dispute that Mr Duncan was involved in an incident that could be considered as misconduct as a worker.
40. I note that misconduct is not defined in the Act and I read nothing in the legislation that requires me to consider whether Mr Duncan’s actions could be regarded as misconduct justifying dismissal.
41. Also any question as to whether his dismissal was unfair is not a matter within the jurisdiction of this Tribunal.
42. The question, therefore, is whether the evidence supports a conclusion that Mr Duncan was unemployed due to his misconduct as a worker or for some other reason and in particular, whether his unemployment was due either directly or indirectly to a voluntary act of his.
43. In my view of the evidence, the facts of the case clearly suggest that immediately following the incident at work Mr Duncan was stood down but not dismissed and that his employment would have continued if he had accepted the conditions demanded by his employer.
44. In fact Mr Duncan was dismissed after he failed to return to work on the designated day and to apologise to the other employees.
45. I note in particular the notes of the ARO’s interview with the General Manager which stated that
Later that day, he sent him a text and said that because Mr Duncan did not turn up as requested at 7.30am, Mr B….. assumed that Mr Duncan did not want his job and therefore his employment was termination” [sic].
46. Accordingly I find that Mr Duncan was not dismissed as a result of his misconduct as a worker but due to his voluntary act of failing to agree to the conditions demanded by his employer.
47. Pursuant to subsection 629(4) I must now consider whether Mr Duncan’s voluntary act was reasonable.
48. Mr Duncan’s evidence, supported by his partner, and not challenged by the respondent demonstrated that there had been recurring difficulties with the behaviour of another employee and that this behaviour was not being managed appropriately by the employer.
49. I accept Mr Duncan’s evidence that he felt that he had been unfairly treated and that in the particular circumstances he considered that the conditions demanded by his employer with respect to continuing employment were unreasonable. I also accept Mr Duncan’s assessment that if he had returned to work his situation in the workplace was unlikely to have changed.
50. In other words I am satisfied that on the evidence before me Mr Duncan had a reasonable excuse for his voluntary act of refusing to abide by the conditions demanded by his employer for continued employment.
Decision
51. For reasons set out above I find that Mr Duncan was eligible for newstart allowance without an eight week non-payment period.
52. The decision under review is set aside.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member
Signed: .............[sgd]......................................................
AssociateDates of Hearing: 12 November 2009
Date of Decision: 9 December 2009
Representative for the Applicant: Self-representedRepresentative for the Respondent: Mr K Bullock, Centrelink Legal Services and Procurement Branch
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