Florenca and Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 447
•19 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 447
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0824
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL FLORENCA Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Deputy President S D Hotop Date19 June 2009
PlacePerth
Decision The Tribunal affirms the decision under review. ..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
SOCIAL SECURITY – newstart allowance – applicant entered into Newstart Activity Agreement – applicant commenced employment on 21 August 2008 – applicant voluntarily left employment on same date – applicant unemployed due to his voluntary act – applicant’s voluntary act not reasonable – newstart allowance not payable to applicant for period of 8 weeks – decision under review affirmed
Social Security Act 1991 (Cth), s 629(1)(b) and s 629(4)
REASONS FOR DECISION
19 June 2009 Deputy President S D Hotop Introduction
1. Michael Florenca (“the applicant”), who is 41 years of age, had been receiving newstart allowance under the Social Security Act 1991 (Cth) (“the Act”). On 4 September 2008, however, a Centrelink officer decided to impose an 8-week non-payment period in respect of the applicant’s newstart allowance on the ground that, on 21 August 2008, he had voluntarily left his employment without good reason. That decision was affirmed by a Centrelink authorised review officer (“ARO”) on 9 October 2008 and the latter decision was, in turn, affirmed by the Social Security Appeals Tribunal (“SSAT”) on 9 January 2009.
2. The applicant has applied to this Tribunal for review of the decision of the ARO as affirmed by the SSAT.
The Relevant Legislation
3. Section 593(1) of the Act prescribes various qualification criteria for newstart allowance. In accordance with that subsection a person will generally be qualified for newstart allowance in respect of a period if, throughout that period, that person is unemployed and satisfies the “activity test”.
4. Pursuant to s 601(1) of the Act a person will generally satisfy the “activity test” in respect of a period if, throughout that period, that person is:
“ (a) actively seeking; and
(b) willing to undertake;
paid work in Australia, other than paid work that is unsuitable to be undertaken by the person”.
5. Section 605(1) of the Act authorises the Secretary to the Department of Education, Employment and Workplace Relations (“the respondent”) to require a person who has claimed, or is receiving, newstart allowance to enter into a “Newstart Activity Agreement”. Section 606(1) of the Act provides:
“ … a Newstart Activity Agreement with a person is to require the person to undertake one or more activities that the Secretary regards as suitable for the person.”
6. Sections 624 and 626 of the Act provide for circumstances in which newstart allowance is not payable to a person where that person commits a “newstart participation failure”. Section 624(1) prescribes the circumstances in which a person generally “commits a newstart participation failure”, including:
· failure to satisfy the activity test; or
· failure to comply with a term of a Newstart Activity Agreement.
Section 626(1) provides that newstart allowance is not payable to a person for a certain period in circumstances where that person has, inter alia, committed a newstart participation failure.
7. Section 629(1) of the Act provides (relevantly) that a newstart allowance is not payable to a person for a period of 8 weeks if the person:
“(b) is unemployed due, either directly or indirectly, to a voluntary act of the person; …”
Subsection (4) of s 629 provides, however, that para (1)(b) does not apply “if the Secretary is satisfied that the person’s voluntary act was reasonable”.
The Evidence
8. The evidence before the Tribunal comprised:
· the “T Documents” (T1–T18, pp1–100) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· a signed statement of Lynette Elder, dated 8 June 2009 (Exhibit R1); and
· the oral evidence of the applicant and of Lynette Elder.
The evidence of the applicant
9. The applicant’s evidence may be summarised as follows:
· he entered into a Newstart Activity Agreement with “PVS Workfind” on 19 August 2008 whereby he agreed that (inter alia) he would “accept all referrals to suitable positions, as identified by PVS Workfind, Fremantle between 19/08/2008 and 19/02/2009” (T6);
· on 21 August 2008 he attended the premises of “The Furniture Spot” store in O’Connor, Western Australia for the purpose of commencing work as a storeperson;
· he spoke to The Manager, Ms Elder, but he did not clearly recall that conversation, although he did recall completing various forms including a tax declaration;
· he regarded his attendance at The Furniture Spot that day as a work trial to see whether he liked the job and whether it was suitable for him;
· he was aware the job was an ongoing position because Ms Elder was looking for a full-time storeperson;
· he thought that the job was just a “straight stores position” involving loading and unloading duties and associated paperwork, and such a job would have been suitable for him;
· he found, however, that the job also involved assembling furniture from kits and he then “knew” that this job was not suitable for him because he has “no handyman skills” and is “not good with diagrams” and not good at putting pieces together;
· he managed to assemble a chair but the other storeperson had to “level it up” because he could not;
· “what really put [him] off” the job was that, if furniture pieces were missing from a kit, “you had to mock them up as you went along”;
· there was an occasion on that day where the other storeperson was assembling furniture including a mirror and, because a piece of backing wood was missing from the kit, he made up a replacement piece and drilled the necessary holes in it;
· had he been required to assemble that item of furniture, he would not have been able to do this himself and he would have instead drilled a hole in the mirror;
· he then “knew” that the job was “not for [him]” and he spoke to Ms Elder and told her that he was “not up to the job” because he was “not a handyman’s bootlace”;
· he did not recall Ms Elder telling him, during their conversation on 21 August 2008 before he started work, that the job also involved furniture assembling duties;
· he does not recall any offer of training in assembling furniture being made to him;
· before he left The Furniture Spot premises (at approximately 3.00 pm) he “outlined” to Ms Elder why he could not do the job;
· he received payment for the hours he worked at The Furniture Spot on 21 August 2008.
The evidence of Lynette Elder
10. A signed statement of Ms Elder, dated 8 June 2009, was tendered in evidence by the respondent (Exhibit R1). The contents of that statement are as follows:
“ …
2. I am the Manager of The Furniture Spot store at O’Connor, Western Australia.
3.On 21 August 2008 I conducted an interview with Mr Michael Florenca for a storeperson’s position. At the interview I informed Mr Florenca that the position required assembling, lifting and carrying kit form furniture. I also advised him of the hours of employment and pay rate.
4.Mr Florenca was offered the storeperson’s position for [a] standard casual one month trial period. He completed the relevant paperwork and commenced work that day.
5.Later that afternoon Mr Florenca walked up to me and said something to the effect of ‘I can’t do this, I am going to leave’, and walked out.
6.I was not aware of any problems that Mr Florenca had with the position, nor did he approach me to ask for assistance.”
11. Ms Elder’s oral evidence may be summarised as follows:
· she has been the Manager of The Furniture Spot store in O’Connor for the last 18 months;
· assembling furniture was not a large part of the storeperson job which was offered to the applicant on 21 August 2008;
· the furniture assembling involved was just for display purposes, and was “very basic”;
· when the applicant told her that he could not do the job and was leaving, she asked him what the problem was but there was no opportunity for any discussion before he left, although she believed that he had had difficulty putting a chair together;
· the applicant did not indicate to her at the job interview that furniture assembling duties would be a problem for him;
· the applicant did not approach her for any assistance during that day;
· two storepersons are employed by her because that job involves some heavy lifting which requires two persons to do it;
· if the applicant was having a problem with his work duties he could have asked the other storeperson for assistance and it would have been given;
· occasionally pieces, such as screws, are missing from furniture kits which are delivered to her store;
· in the unlikely event that a more substantial furniture part was missing from a kit, they would normally request that a replacement part be supplied by the manufacturer;
· it is not a job duty of a storeperson to fabricate a part which is found to be missing from a furniture kit and, although a storeperson might do this, there is no requirement or expectation by her that a storeperson would do so.
Analysis
12. This matter falls to be determined in accordance with s 629 of the Act.
13. The first issue for the Tribunal’s determination is whether the applicant became “unemployed due, either directly or indirectly, to a voluntary act” by him, for the purposes of para (b) of s 629(1) of the Act. It is common ground that none of the other paragraphs of s 629(1) is applicable in this case.
14. On the basis of the evidence before it, the Tribunal finds that the applicant commenced paid employment at The Furniture Spot store in O’Connor in the morning of 21 August 2008 and was employed there on that day until approximately 3.00 pm when he told the Manager, Ms Elder, that he was unable to do the job and was leaving and then left the premises without any intention of returning to that employment. The Tribunal finds that the applicant’s act of leaving the premises of The Furniture Spot was a voluntary act on his part and that, by that act, he effectively brought his employment at The Furniture Spot to an end, resulting in his then becoming unemployed.
15. Accordingly, the Tribunal finds that at approximately 3.00 pm on 21 August 2008 the applicant became “unemployed due … directly … to a voluntary act” by him, and that para (b) of s 629(1) of the Act is, therefore, met in his case.
16. The critical issue in this matter is whether the Tribunal is satisfied that the applicant’s abovementioned voluntary act was “reasonable”, for the purposes of s 629(4) of the Act. If the Tribunal is so satisfied, para (b) of s 629 (1) will, by reason of s 629(4), be rendered inapplicable in this case.
17. Whether or not the voluntary act of the applicant, whereby he effectively terminated his employment at The Furniture Spot store at approximately 3.00 pm on 21 August 2008, was reasonable is, in the Tribunal’s opinion, to be judged having regard to all relevant surrounding circumstances.
18. The applicant submitted that his abovementioned act was reasonable because:
· he commenced the job at The Furniture Sport “with honest intentions” and wanted to “have a go at it”;
· he is the person most capable of assessing whether a job is suitable for him, and he knew that he could not do the job at The Furniture Spot;
· he did not just walk off the job – he gave the other storeperson and the store manager the opportunity to comment but he told the manager that he was firm in his conviction that the job was not for him and that he was leaving.
19. Although the Tribunal is prepared to accept that the applicant genuinely believed that it was reasonable for him not to continue with the storeperson job at The Furniture Spot which he had commenced in the morning of 21 August 2008 and to leave the premises at approximately 3.00 pm on that day, the Tribunal does not accept that that act on his part was reasonable in the circumstances. As regards those circumstances, the Tribunal finds, on the basis of Ms Elder’s evidence, that:
· the assembling of kit furniture was a relatively small part of the work duties of the storeperson position in which the applicant was employed and, in any event, such assembling was very basic and did not require handyman skills;
· Ms Elder explained the relevant work duties (including assembling) to the applicant before he commenced work on 21 August 2008 and he did not indicate to her during that interview, or at any time on that day, that he would, or did, require any assistance in performing any work duties;
· fabrication of parts of furniture missing from a kit was not part of the work duties of the storeperson position, and Ms Elder did not, at the interview or at any other time, indicate to the applicant that it was;
· the applicant was working with another storeperson from whom he could request any necessary assistance in performing his work duties;
· at approximately 3.00 pm on 21 August 2008 the applicant told Ms Elder that he could not do the job and was leaving and, without further discussing the matter with her, he then left The Furniture Spot premises and did not return to that job.
Having regard to those circumstances, the Tribunal is not satisfied that the applicant made a genuine or realistic effort to engage in the employment of storeperson at The Furniture Spot store on 21 August 2008. In the Tribunal’s opinion, the applicant’s self-assessment that he was incapable of doing that job was, it seems, largely based on a subjective misconception on his part that fabrication duties were necessarily involved in that job, and it was not based on reasonable grounds. Furthermore, the applicant’s act of leaving that job without completing even the first day of work was, in the Tribunal’s opinion, precipitate and unreasonable in that it did not allow for a realistic work trial period on the basis of which it might have been objectively determined whether he was, in truth, capable or incapable of performing the work duties necessarily involved in that job.
20. Accordingly, the Tribunal is not satisfied that the applicant’s voluntary act of leaving the premises of The Furniture Spot in O’Connor, where he was then employed, at approximately 3.00 pm on 21 August 2008, thereby effectively terminating that employment, was reasonable, for the purposes of s 629(4) of the Act.
21. The Tribunal concludes, therefore, that, in accordance with s 629(1) of the Act, newstart allowance is not payable to the applicant for a period of 8 weeks.
Decision
22. For the above reasons the Tribunal affirms the decision under review.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[sgd D Brodie]........................
Associate
Date of Hearing 9 June 2009
Date of Decision 19 June 2009
Representative of the Applicant Self-representedRepresentative of the Respondent Mr A Holt
Legal Services Branch, Centrelink
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