Fitsum Gebrezgabhir and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 904
[2012] AATA 904
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2750
Re
Fitsum Gebrezgabhir
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert
Date 19 December 2012 Place Melbourne The Tribunal affirms the decision under review.
[sgd]....................................................................
Mr Conrad Ermert - Member
Catchwords
Disability Support Pension - eight week non-payment period - failed to accept an offer to start work - whether job offer suitable - whether excuse reasonable - whether capacity to undertake serious failure requirements - whether severe financial hardship - decision affirmed
Legislation
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975
REASONS FOR DECISION
Mr Conrad Ermert
19 December 2012
INTRODUCTION
Mr Gebrezgabhir, the applicant, has received Newstart Allowance (NA) since January 2010 and continues to receive the allowance. On 14 October 2011 Mr Gebrezgabhir was interviewed for a position with A & I Industries Pty Ltd (A&I). He was offered a job commencing on 17 October 2011. The employment was arranged by Tracy the Placement People (Tracy), an Employment Services Provider. After leaving the interview at A&I, Mr Gebrezgabhir returned to the Tracy office where his Case Manager gave authority to provide him with safety boots and a shirt. Later that day Mr Gebrezgabhir informed Tracy staff that he was not available to start work on 17October as he had to care for his son.
On 21 October 2011 Centrelink made a decision to apply an eight week non‑payment period to Mr Gebrezgabhir’s Newstart Allowance because he had refused a suitable offer of work without a reasonable excuse. Centrelink is the service provider for the respondent. Mr Gebrezgabhir requested a review of this decision. An Authorised Review Officer (ARO) of Centrelink affirmed the decision on 11 April 2012. Mr Gebrezgabhir requested a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the ARO’s decision on 29 May 2012.
On 29 June 2012 Mr Gebrezgabhir lodged an application for review of the SSAT decision with this Tribunal.
THE HEARING
Mr Gebrezgabhir attended the hearing and gave evidence (under affirmation) with the assistance of an interpreter in the Tigrinya language. Mr Andrew Carson, an advocate from the Centrelink Program Litigation and Review Branch, represented the Secretary to the Department of Education, Employment and Workplace Relations (the Secretary). I took into evidence the documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents and Supplementary T‑documents ST1 and ST2 attached to the Secretary’s Statement of Facts and Contentions).
THE LEGISLATION
The Social Security (Administration) Act 1999 (the Administration Act) contains the relevant law. Section 42N states:
(1)The Secretary may determine that a person commits a serious failure if:
(a)the person is receiving a participation payment; and
(b)the person refuses or fails to accept an offer of suitable employment.
Note:A participation payment is not payable for 8 weeks for a serious failure (see section 42P).
(2)Despite subsection (1), the Secretary must not determine that a person commits a serious failure under that subsection if:
(a)the person satisfies the Secretary that the person has a reasonable excuse for the failure; or
...
Note: The Secretary must take certain matters into account for the purposes of paragraph(a) (see section 42U).
Section 42U states relevantly that:
(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:
...
(d)a serious failure (see paragraph 42N(2)(a)).
(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.
The legislative instrument relevant to section 42U(1) is the Social Security (Reasonable Excuse – Participation Payment Obligations)(DEEWR) Determination 2009 (No 1) (the Determination), which includes in section 5(2) the following relevant matters to be taken into account in determining whether a person had a reasonable excuse:
...
(b)the literary and language skills of the person; and ...
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.
(g)unforeseen family or caring responsibilities of the person;
Section 42NC is also relevant and states:
If the Secretary determines that a person commits a serious failure, the Secretary must also determine that this section applies unless the Secretary is satisfied that:
(a)the person does not have the capacity to undertake any serious failure requirement; and
(b)serving the serious failure period would cause the person to be in severe financial hardship.
THE ISSUES
The issues to be decided are:
·Whether Mr Gebrezgabhir failed to accept an offer of suitable employment;
·If so, whether he had a reasonable excuse for so doing;
·If not, whether he has the capacity to undertake any serious failure requirement; and
·whether serving the non-payment of the Newstart Allowance would cause him severe financial hardship.
THE EVIDENCE
Mr Gebrezgabhir stated that after he received the job offer he was told by his ex‑wife that she had to attend a medical appointment on 17 October and he had to take care of their son. Mr Gebrezgabhir said his ex-wife was very sick and he wanted to help.
In answers to questions from Mr Carson, Mr Gebrezgabhir said that his discussions with staff of Tracy and A&I were conducted in English, without the use of an interpreter. Mr Gebrezgabhir also agreed that the course for his Security Certificate was conducted in English, as are the classes he is currently attending. He said that he is struggling with the language but can understand the essentials.
Mr Gebrezgabhir confirmed that his ex-wife receives a tax benefit for their son and is assessed as having 100 per cent care. Mr Gebrezgabhir said that he went to her house during the morning of 17 October. She returned from her appointment about 3.00pm, after which he left. Mr Carson asked whether Mr Gebrezgabhir told his ex-wife about his job offer, whether she could have changed the time of her appointment to coincide with a period of her son’s child-care or whether he had asked A&I if he could finish early on the 17 October. Mr Gebrezgabhir said he had done none of those things because he did not know the system. He was confused at the time and he panicked.
Mr Gebrezgabhir said he did not understand the explanations in the decisions of the ARO and the SSAT regarding the compliance requirements and the option of undertaking those requirements in place of the non-payment period. After Mr Carson described the compliance requirements, Mr Gebrezgabhir confirmed that there were no reasons why he could not undertake compliance activities. He said that now that he understood the options available he would contact Centrelink to confirm his willingness to undertake compliance activities.
In his submissions Mr Gebrezgabhir said that he now knew what he had to do. He confirmed that he consented to undertaking the compliance activities and would contact Centrelink accordingly.
Mr Carson referred to the submissions contained in the Secretary’s Statement of Facts and Contentions. He submitted that there was no disagreement that Mr Gebrezgabhir had been offered a job, starting on 17 November, and that the job was reasonable. Mr Carson submitted that Mr Gebrezgabhir, by not attending A&I on 17 October, had not taken up the job offer and accordingly had failed to accept the offer.
Mr Carson also submitted that Mr Gebrezgabhir’s explanation for not accepting the offer was not reasonable. In regard to section 5(2)(g), unforeseen family caring responsibilities, in the Determination, Mr Carson submitted that Mr Gebrezgabhir has no shared care responsibilities for his son. He submitted further that Mr Gebrezgabhir had failed to explain his job obligations to his ex-wife and had made no effort to change his wife’s medical appointment or to make alternative arrangements that would allow him to take up the job offer.
In regard to Section 5(2)(b) of the Determination, the literary or language skills of the person, Mr Carson submitted that Mr Gebrezgabhir has a sufficient knowledge of English to understand the essentials of his job offer requirements. Mr Carson cited Mr Gebrezgabhir’s evidence that his communication with the staff of Tracy and A&I were conducted in English without an interpreter. Mr Carson submitted that no other issues were applicable to Mr Gebrezgabhir’s situation and therefore Mr Gebrezgabhir had no reasonable excuse for failing to accept the job offer.
Mr Carson asked the Tribunal to affirm the SSAT decision.
CONSIDERATION
Did Mr Gebrezgabhir fail to accept an offer of suitable employment?
There is no dispute that A&I offered Mr Gebrezgabhir employment starting on Monday 17 October 2011 and that the employment was suitable. There is also no dispute that Mr Gebrezgabhir did not attend A&I to commence his employment. I accept Mr Carson’s submission that by failing to take up the job offer Mr Gebrezgabhir failed to accept an offer of suitable employment (section 42N(1)(b) of the Administration Act and I find accordingly.
There is also no dispute that at the time of failing to accept the offer, Mr Gebrezgabhir was receiving NA, thereby satisfying section 42N(1)(a) of the Administration Act. Accordingly, I find that Mr Gebrezgabhir satisfies the provisions of section 42N(1) of the Administration Act.
Did Mr Gebrezgabhir have a reasonable excuse?
Mr Gebrezgabhir testified that, during the afternoon of Friday 14 October, his ex-wife told him she had a medical appointment on Monday 17 October and that he was needed to look after their son. His evidence was that on the morning of 17October he went to his ex-wife’s house and looked after his son, until she returned at about 3.00pm.
In his oral evidence, Mr Gebrezgabhir agreed that he did not tell his ex-wife about the job he had been offered and his need to be at his employers’ premises on Monday 17 October. Mr Gebrezgabhir also testified that he made no attempt to effect a change in the time of his ex-wife’s appointment, or to make alternative arrangements with A&I.
Section 5(2)(g) of the Determination provides for unforeseen family caring responsibilities. I note Mr Gebrezgabhir has no formal caring responsibilities for his son, who is assessed by Centrelink as being 100 per cent in the care of Mr Gebrezgabhir’s ex‑wife.
Mr Gebrezgabhir testified that he had a social responsibility to look after his son. Even if I accepted that Mr Gebrezgabhir had such a social responsibility, I do not accept that the need for care was unforeseen. Mr Gebrezgabhir became aware of the requirement on the afternoon of Friday 14 October. He had sufficient time to contact the Tracy staff to tell them that he would not start work with A&I on the Monday. He could equally have contacted A&I to request a change of the start date. He could also have contacted his ex‑wife to tell her of his job obligation and ask her to have her appointment changed. He did none of these things, although there was time available.
I do not accept that Mr Gebrezgabhir had a caring responsibility for his son on Monday 17 October. Further, I do not consider that Mr Gebrezgabhir’s perceived responsibility was unforeseen. Accordingly, I find that Mr Gebrezgabhir did not meet the provisions of section 5(2)(g) of the Determination.
In regard to Mr Gebrezgabhir’s language skills, I note the evidence of his discussions in English with the staff of Tracy and A&I. I also note the successful completion of his Security Certificate course, which he agreed was conducted in English. In addition, Mr Gebrezgabhir’s evidence was that he understood basic English. Accordingly, I find that Mr Gebrezgabhir has a sufficient understanding of English to not come within the provisions of section 5(2)(b) of the Determination.
There was no evidence of any other issues to be taken into account in determining whether Mr Gebrezgabhir had a reasonable excuse for not taking up the job offer. I find that Mr Gebrezgabhir had no reasonable excuse for failing to accept the offer of suitable employment (section 42U(2)).
I have found that on 17 October 2011 Mr Gebrezgabhir was receiving a participation payment (section 42N(1)(a)) and he failed to accept an offer of suitable employment (section 42N(1)(b)). As a consequence, I find that Mr Gebrezgabhir committed a serious failure in accordance with the provisions of section 42N of the Administration Act.
Does Mr Gebrezgabhir have the capacity to undertake any serious failure requirement?
Section 42NC(a) of the Administration Act requires me to consider whether Mr Gebrezgabhir has the capacity to undertake any serious failure requirement. Mr Gebrezgabhir stated in evidence that there was no reason why he could not undertake a serious failure requirement. He confirmed this position in his submissions by stating his intention to contact Centrelink to initiate the process.
Accordingly, I find that Mr Gebrezgabhir has the capacity to undertake any serious failure requirement.
Would serving the serious failure period cause Mr Gebrezgabhir severe financial hardship?
There was no evidence presented of Mr Gebrezgabhir’s financial circumstances. His NA continues to be paid awaiting the outcome of this hearing. Furthermore, Mr Gebrezgabhir now understands that by undertaking a serious failure requirement his payments will continue. Accordingly, I find that Mr Gebrezgabhir will not be in financial hardship by serving a serious failure period.
CONCLUSION
I have found that Mr Gebrezgabhir committed a serious failure by failing to accept an offer of suitable employment without a reasonable excuse, contrary to the provisions of section 42 of the Administration Act. I have also found that there are no reasons why Mr Gebrezgabhir cannot undertake serious failure requirements, and that he will not be in severe financial hardship by serving a serious failure period.
Accordingly, I find that the decision to apply an eight week serious failure non‑payment period was correctly applied. This means that Mr Gebrezgabhir’s application is not successful.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 34 (thirty-four)
paragraphs are a true copy of the
reasons for the decision herein of
Mr Conrad Ermert, Member.[sgd].....................................................................
Administrative Assistant
Dated 19 December 2012
Date of hearing 23 November 2012 Applicant In person Advocate for the Respondent Mr Andrew Carson - Centrelink Program Litigation & Review Branch
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Unforeseen Family Caring Responsibilities
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Reasonable Excuse
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Standing
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Limitation Periods
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