Foley; Department of Family and Community Services - [2002] AATA 626

DECISION AND REASONS FOR DECISION [2002] AATA 626

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/105

GENERAL ADMINISTRATIVE DIVISION          )
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Applicant
           And    PAUL ANTHONY FOLEY
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date26 July 2002
PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)

CATCHWORDS
SOCIAL SECURITY - pensions, benefits and allowances - Newstart Allowance - Activity Test Breach Rate Reduction period applied - whether respondent resigned voluntarily and whether such resignation reasonable - whether applicant's unemployment was due to his misconduct.
Social Security Act 1991 ss.628, 629, 644AA, 644AE
North v Television Corporation Ltd (1976) 11 ALR 599
Werner & Secretary, Department of Family and Community Services [1999] AATA 1009
Pearson & Director-General of Social Security (1984) 6 ALN N220
Secretary, Department of Social Security & McShane (1996) 39 ALD 470
O'Keefe & Secretary, Department of Social Security (AAT 13099, 13 July 1998)

REASONS FOR DECISION

26 July 2002 Senior Member J.A. Kiosoglous MBE

This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) of 15 February 2001 (T2), which set aside the decision of an Authorised Review Officer (ARO) dated 12 January 2001 (T15) to apply an 18% Activity Test Rate reduction of the respondent's Newstart Allowance from 11 August 2000 to 8 February 2001. In so deciding that the activity test breach not apply to the respondent the SSAT was satisfied that he did not resign voluntarily from his employment and that his employment was not terminated due to worker misconduct.
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T16) together with seven exhibits, two exhibits lodged by the applicant (Exhibits A1 and A2) and five lodged by the respondent (Exhibits R1 to R5). In addition, the Tribunal heard evidence from the respondent, Paul Anthony Foley. The applicant was represented by Ms Lee-Anne Odgers, a departmental advocate, and the respondent by Mr Christian Goldsworthy of the Welfare Rights Centre.

issues

The issues before the Tribunal are whether or not the respondent:
(a)resigned voluntarily, and if so, was such resignation reasonable;
(b)was dismissed for an act that constituted misconduct or some act that falls short of misconduct; and
(c)was subject to an activity test rate reduction period.

legislation

The relevant legislation for consideration in this matter by the Tribunal includes sections 628 and 629 of the Social Security Act 1991 (the Act). Section 628 refers to unemployment due to a voluntary act, whilst section 629 deals with unemployment due to misconduct. These provide as follows:
"Unemployment due to voluntary act
628. If:
(a)a person's unemployment is due, either directly or indirectly, to a voluntary act of the person (the voluntary act); and
(b)the Secretary is not satisfied that the person's voluntary act was reasonable;
then:
(c)if the voluntary act is the person's first or second activity test breach in the 2 years immediately before the day after the voluntary act—an activity test breach rate reduction period applies to the person; or
(d)if the voluntary act is the person's third or subsequent activity test breach in the 2 years immediately before the day after the voluntary act—an activity test non-payment period applies to the person.
Unemployment due to misconduct
629. If a person's unemployment is due to the person's misconduct as a worker (the misconduct), then:
(a)if the misconduct is the person's first or second activity test breach in the 2 years immediately before the day after the misconduct—an activity test breach rate reduction period applies to the person; or
(b)if the misconduct is the person's third or subsequent activity test breach in the 2 years immediately before the day after the misconduct—an activity test non-payment period applies to the person."

respondent's evidence

Briefly the facts are that the applicant, aged 37 years, described his occupation as being that of a Case Manager. He stated that from about 8 July 1996 to 10 August 2000 he was employed by Royal and Sun Alliance Australia Holdings, an insurance company, as a case manager of workers' compensation claims. His duties were to basically determine what claim entitlements a worker has under the Workers' Compensation Act and to instigate rehabilitation to help workers return back to work.
Prior to employment with Royal and Sun Alliance, the applicant stated that he had been employed by WorkCover Corporation (WorkCover) for six years until the claims management area was outsourced and subsequently he obtained a position as a case manager with New Zealand Insurance (NZI). He was employed with NZI for nine months before applying for employment with Royal and Sun Alliance and obtaining a position there. During the period 15 December 1999 to 25 May 2000 the respondent underwent a series of performance counselling interviews, and received certain "Process Improvement Notices" (T3, T8 and T9). The first of these occurred on 15 December 1999 (T3/13) at which Mr Foley stated that the respondent raised with him his failure to attend weekly meetings to discuss undetermined claims for compliance and claims management purposes. He blamed his inability to keep up to date on a high number of phone calls he received thus making it difficult for him to complete his workload. Certain strategies were put in place giving him the opportunity of taking control of his work and improving his performance.
The respondent also stated in his evidence that management had told staff that Royal and Sun Alliance had been advised by WorkCover that it was not satisfied with the way in which Royal and Sun Alliance as its agent was handling the management of claims and may review its contract. The respondent further stated that as a result of this the management were looking for a scapegoat and he believed he was being "picked on" for this reason.
Mr Foley's second performance counselling was on about 14 April 2000 (T8/23) at which a number of issues were discussed including "lack of compliance with ISO procedures" and telephone calls. Again strategies were put in place. Notwithstanding this the respondent rejected the allegations against him or in the alternative he stated that other officers were offending in similar fashion or worse and that no action was taken against them.
On 25 May 2000 the respondent underwent a third performance counselling interview (T9/29) where again the respondent's performance was raised and that such was considered to be sub-standard in certain areas including claims management, non-adherence to agreed working and lunch time hours, and unauthorised breaks. Again strategies were put in place, according to Royal and Sun Alliance, which it felt would allow the respondent to be "a competent Case Manager and a valued member of the team". Although the respondent's records show that only Ms Abigail Bird, Ms Carol Llewellyn and the respondent were present at this counselling the respondent was adamant that Mr Joe Zampaglione was also present.
The respondent stated that on each occasion he was given no warning of the need to discuss his performance. Throughout this time he found his work stressful as a result of the pressure being put on him. He stated that he found it difficult to work under such pressure and decided to look around for other work with another WorkCover employer/agent. In the meantime following the third performance counselling review he met with Ms Abigail Bird, claims manager, and Ms Carol Llewellyn, union representative, and discussed the future of his employment with Royal and Sun Alliance. He stated that Ms Bird told Ms Llewellyn that if Royal and Sun Alliance were pushed to make a decision concerning him then his employment would be terminated as a result of errors made. The respondent stated that he found all this very stressful and felt his work was being unfairly scrutinised.
In early August 2000 whilst looking for other work he stated that he went into the computer records to ascertain the volume of work available to another WorkCover employer. He was adamant that in so doing he only looked to ascertain the employer's number of files and that he did not in any way look at or read anything in any of the files. He stated that he did not regard his action as being in breach and that he was aware that had he gone any further than he had then he might well have been in breach. He was also aware that if he had so breached by looking at files or claims he was not authorised to enter, then his employment could be terminated. He stated that if he had felt that what he had done was a breach then he would not have done so. At this time he had been with Royal and Sun Alliance for some four years.
WorkCover contacted Mr Joe Zampaglione, State Manager of Royal and Sun Alliance, about the breach, who then informed the respondent. The respondent asked how the matter would be dealt with and stated he was told by Mr Zampaglione that the matter was being viewed seriously by WorkCover and he was awaiting it to inform him of the course of action to be taken. Mr Zampaglione within a short time told the respondent that the only way this could be dealt with was by instant dismissal.
The respondent stated that he was told to resign "on the spot" or be dismissed. He stated that he was requested to give his resignation in writing there and then and he was told that if he did not tender his written resignation he would be dismissed. Fearful that a dismissal would result in his having difficulty in finding another job and that such would show up on his resume, he discussed this with Mr Zampaglione who he alleged told him that if he did not tender his resignation then he would be dismissed as required by WorkCover. The respondent stated that he was not given even a few hours to think about it nor to obtain advice. He felt that he was put under great pressure and with the fear of being dismissed he agreed to tender his written resignation there and then on 10 August 2000 and he did so. Mr Zampaglione as part of the arrangement also agreed to pay him four weeks wages.
The respondent stated that this all happened so quickly that he was unable to obtain any legal advice or assistance from the union. Immediately after resigning he went to see his union representative, Ms Llewellyn, who referred him to solicitors, Bourne Lawyers, for the purpose of obtaining advice for "unfair dismissal". He stated that as he did not have the funds and was now out of a job and hence he could not afford lawyer's fees, he decided not to pursue an unfair dismissal claim despite the fact that in his view he had been victimised and harassed.
Mr Foley stated that when he first saw Mr Zampaglione he told him that he could not understand how it could be considered that what he had done was a breach. He further stated that he was aware of other case managers who had acted similarly. He also stated that he had been a case manager for eight years at this time. He was of the belief that it was not a breach of security as he did not access anyone's personal details nor did he try to alter anything on the screen. He stated that all he did was to bring up the company's list of current claims, counted them and then exited them as he knew that to go any further than that would constitute a breach.
Mr Foley stated that whilst he was waiting to hear from Mr Zampaglione the advice of WorkCover, he did not believe that he would be confronted with the choice of resigning or being dismissed. At worst he felt that if WorkCover thought it was a breach he would get a warning as his experience told him that what he had done was not a serious breach.
On 11 August 2000 the respondent applied for newstart allowance (NSA) and was granted such from that date. An Employment Separation Certificate (ESC) dated 28 August 2000 (T11) was provided wherein a payroll officer of Royal and Sun Alliance advised Centrelink that the respondent ceased work voluntarily and the reason being "resignation".
The applicant then decided on 25 August 2000 to impose an activity test breach reduction of 18% for the period 11 August 2000 to 8 February 2001, as it was considered that Mr Foley's unemployment was due to a voluntary act on his part. On 18 December 2000 (T13) the respondent sought a review of this decision by the Original Decision Maker (ODM) stating as follows:
"I believe the decision to reduce my payment by 18% is incorrect due to my 'resignation' being forced on me by my employer. My employer told me to either write a resignation letter or my employment would be terminated immediately. Even though I 'resigned' on paper this was in no way a voluntary resignation, and I should not be financially disadvantaged by this action."
A medical certificate was also provided by Dr Stephen Salagaras dated 21 November 2000 (T12) which stated that the respondent was unfit for work from 21 November 2000 to 21 February 2001 inclusive due to major depression.
The ODM on 19 December 2000 (T14) affirmed the decision and referred the matter to an Authorised Review Officer (ARO) for reconsideration. On 12 January 2001 (T15) the ARO decided that the respondent's unemployment was due to his misconduct as a worker. An application was then made on 17 January 2001 (T16) to the Social Security Appeals Tribunal (SSAT) for review of the ARO's decision. The SSAT on 15 February 2001 (T2) decided to set aside the decision to impose an activity test rate reduction period, and substituted a new decision that he did not resign voluntarily and his employment was not terminated due to worker misconduct and therefore the activity test breach should not apply. The applicant department made application to the Administrative Appeals Tribunal (AAT) seeking a review of the decision of the SSAT (T1).
In addition to the evidence already outlined by the respondent he also stated that he was currently doing temporary work as a case manager handling workers compensation claims for all the TAFE colleges working five days a week. He stated that when he first started in this position on 25 October 2001 he worked three days a week. He stated that he commenced working five days a week as from 1 February 2002 and continues to do so.
The respondent also stated that at no time when working for previous employers, namely, WorkCover and NZI had he been dismissed. He further stated that he had never been forced to undertake a performance review nor was he the subject of formal warnings whilst with these employers.
submissions of the applicant
In her submissions for the applicant Ms Odgers contended that the respondent's unemployment was due to a voluntary act on his part but that in the alternative was due to his misconduct.
She submitted that the respondent resigned from his employment with Royal and Sun Alliance and that an ESC provided to Centrelink (T11) indicates that the termination of his employment was due to his ceasing work voluntarily and that this was confirmed by a delegate in a conversation with an officer of Royal and Sun Alliance on 19 December 2000 (T14). Based on these facts, Ms Odgers submitted that the resignation was voluntary. She further submitted that the assertion by the respondent that he was forced to resign or have his employment terminated are statements made that may be seen as self-serving. She also stated that he had not provided any objective evidence to this effect.
Ms Odgers also submitted that it was open to the respondent not to resign and then to challenge any subsequent termination. She stated that it was his choice to resign and such was voluntary. She further submitted that he had not taken any action in relation to unfair dismissal from his employment.
In the alternative it was contended that the respondent had contributed to his unemployment through his own actions due to a breach of security and was as a result given an option of resigning or being dismissed. It was contended that he was unemployed as a result of misconduct. In support of this Ms Odgers referred to paragraph 1.1.U.40 of the Guide to the Social Security Law (T15/41) which states (inter alia):
"A customer is regarded as becoming unemployed through misconduct if they have been dismissed or given the option of resigning, as a result of:

failure through their own deliberate actions to produce/deliver a reasonable amount of work,
unauthorised absences from duty without good reason, OR
improper behaviour or practices."

The Guide proceeds to give examples citing "theft, fighting, harassment of customers or other employees".

Ms Odgers contended that the activity test breach was correctly imposed on the respondent. She further stated that as it was his first activity test breach, a rate reduction period was imposed on him in accordance with the provisions of sub-sections 628(c) and 629(a) of the Act. She also contended that the period and the rate of reduction were correctly imposed in accordance with section 644AA and section 644AE of the Act. Section 644AA provides that an activity test breach rate reduction period applying under this Part is for a period of 26 weeks whilst section 644AE provides for the rate reduction for a first breach at 18%.
It was contended for the applicant that the Tribunal needs to determine whether or not the respondent was properly subjected to an activity test breach rate reduction period. It was further contended that, if so, the Tribunal was to consider whether or not the respondent's unemployment was due directly or indirectly to a voluntary act on his part or alternatively due to his misconduct as a worker.
Ms Odgers submitted that the rationale underlying sections 628 and 629 of the Act is that a person who has employment is expected to maintain that employment. She further submitted that if such person by his own actions has his employment terminated, then a penalty will be imposed. She submitted that the respondent has argued that his voluntary resignation was reasonable and therefore he does not fall foul of section 628. She also submitted that the respondent likewise argues that he was not dismissed for misconduct, and hence does not fall foul of section 629. Ms Odgers stated that in cases such as this, the two concepts of voluntary unemployment and unemployment due to misconduct are not necessarily mutually exclusive. She stated that in the present case there is a situation where the respondent was considered to have been engaged in misconduct by his employer and that it was indicated to him that he could be summarily dismissed, or alternatively resign. Ms Odgers contended that the respondent resigned voluntarily.
Ms Odgers contended that in her view it was clear from the documentary evidence that the respondent was the subject of a number of counselling sessions regarding his work performance despite the respondent having his own views about the appropriateness of those sessions. She stated that the respondent has told the Tribunal that Bourne Lawyers had before them all the information regarding the counselling sessions and that on review of this evidence, Bourne Lawyers advised him that he "had been put on notice that [his] work performance was inadequate and that [his] employment was in jeopardy if [his] performance did not improve" (Exhibit R3).
Ms Odgers further submitted that the evidence is that Royal and Sun Alliance were required to meet stringent standards set both as a result of their contractual relationship with WorkCover, and also from their ISO accreditation, and that there was a concern that their contractual arrangements with WorkCover would not be renewed. She stated that it was against this background that the respondent's counselling sessions took place.

Ms Odgers submitted that the respondent chose to resign and accepted four weeks salary and that such resignation was voluntary. She further submitted that it was to the respondent's advantage to resign, rather than having a dismissal on his work record. She also stated that such is reinforced by the advice received from Bourne Lawyers (Exhibit R3), namely that an action for unfair dismissal did not have strong prospects of success. She supported this by reading from the advice (Exhibit R3) that:
"We confirm, however, that on our reading of the documents which you have provided to us and from your instructions your prospects of succeeding in such an application are fair at best."
Ms Odgers stated that it had been submitted on behalf of the respondent that his resignation was reasonable. She further submitted that it was also alleged that the respondent had been victimised at work, that his work was coming under unreasonable scrutiny, and that he was being bullied into resigning from his employment. She stated further that this may well be what the respondent believes to be the case, but in her view the objective evidence is that the counselling was reasonable and that his choice to resign was voluntary. She also submitted that had the respondent believed that he should not resign, he could have stayed in his employment and forced his employer's hand. Ms Odgers referred to paragraph 1.1.V.67 of the Guide to the Act (T15/42). She submitted that it would offend the underlying rationale of section 628 for a person who had been properly counselled for poor work performance and also for breach of security arrangements to succeed on the point that resignation (in lieu of dismissal) was "reasonable".
Ms Odgers submitted that in the alternative, the respondent was unemployed due to his misconduct as a worker as his improper access of information was deemed to be a breach of security and he was given the option of resigning or being dismissed. In again drawing the Tribunal's attention to paragraph 1.1.U.40 of the Guide (T15/41) in relation to "unemployment due to misconduct" she submitted that the respondent failed to properly perform his duties. She further submitted that additionally, he improperly accessed information on the computer system. She submitted that both of these are sufficient to amount to "misconduct" for the purposes of the Act and the fact that he was given the option of resigning does not negate the "misconduct".
respondent's submissions
Mr Goldsworthy in his submissions stated that the SSAT applied the provisions of section 628 correctly in making its findings of fact (T2/9). He further submitted that the respondent had no alternative but to resign and that section 628 had been satisfied.
In reference to section 629 pertaining to "misconduct" he submitted that "misconduct" is not defined in the Act but rather set out in the Guide (T15/41). He further submitted that the respondent's circumstances did not come within the meaning of "misconduct" as set out in the said Guide. He submitted that the Tribunal should follow North v Television Corporation Ltd (1976) 11 ALR 599 at 608-609 as set out in paragraph 19 of Re Werner & Secretary, Department of Family and Community Services (1999) AATA 1009. In North the Full Federal Court stated:
"It is of assistance to consider the expression 'misconduct' by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression 'misconduct' as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment."
Mr Goldsworthy contended that the respondent's accessing of the WorkCover records data base was not so serious as to bring about the action taken by the employer. He further contended that Royal and Sun Alliance used this as an excuse to rid itself of the respondent. In so making this contention Mr Goldsworthy submitted that he had no evidence to substantiate this. Notwithstanding this he submitted that the respondent does not accept any criticism of him as to his work. He submitted that upon termination of his employment the respondent went to his union and also obtained legal advice. The events caused the respondent to suffer depression resulting in his seeing a doctor.
Mr Goldsworthy referred to the authorities cited by the applicant and which deal with the issue of dismissal in the workplace. He stated that Pearson & Director-General of Social Security (1984) 6 ALN N220; Secretary, Department of Social Security & McShane (1996) 39 ALD 470; O'Keefe & Secretary, Department of Social Security (AAT 13099, 13 July 1998); and Werner & Secretary, Department of Family and Community Services [1999] AATA 1009 are clear-cut matters which are easily distinguishable to the matter before the Tribunal concerning Mr Foley.
discussion and findings
In arriving at its decision the Tribunal takes into account the evidence as a whole including both the oral and documentary evidence, the authorities referred to by the parties and the submissions of both Ms Odgers and Mr Goldsworthy.
The Tribunal is satisfied on the evidence and so finds that the respondent:

was employed by Royal and Sun Alliance as a case manager from 8 July 1996 to 10 August 2000;
in the course of his employment was the recipient of three performance counselling sessions concerning, inter alia, work standards, phone calls and work attendance;
accessed employer details in order to ascertain the quantum of employer files;
did not read any details or information set out in each of the files;
did not know that it was a breach of security to access employer files even if only for the purposes of ascertaining quantum;
as a result of such breach was given the choice of resigning or being dismissed;
chose to resign in order to keep his resume clear of any indication of the termination of his services so as not to make difficult any effort to find other employment;
was in receipt of NSA;
sought medical assistance for severe depression; and
now is employed as a Workers' Compensation Case Manager for the TAFE colleges.

As previously stated, section 629 provides that a person incurs an activity test breach if the person's unemployment is due to the person's misconduct as a worker. Section 629 provides (inter alia) that in the event of the person's unemployment being due to the person's misconduct as a worker and such misconduct is the person's first activity test breach then an activity test breach rate reduction period applies. The applicant then applied paragraph 1.1.U.40 (T15/41) to the legislation having been satisfied that the respondent's misconduct satisfied the requirements. In applying this to the respondent it is the Tribunal's view that the applicant generalised and failed to be more specific. Accordingly, the applicant failed to show where the respondent came within the requirements and examples provided in 1.1.U.40 of the said Guide. Certainly the respondent's actions could not in any way be described as "theft, fighting, harassment of customers or other employees".
In addition the Tribunal, similarly as in Re Werner, turns for guidance on the issue of "misconduct" from the extract previously referred to herein in the matter of North. The Tribunal is satisfied and so finds that the respondent's actions in accessing the computer record did not constitute conduct so seriously in breach of the employment contract that by standards of fairness and justice the employer should not be bound to continue the employment.
The Tribunal is also in agreement with the submissions of the respondent that the misconduct of workers in the authorities put forward by the applicant was distinguishable from the actions of the respondent – in Pearson the worker repeatedly left his workstation; in McShane the worker punched a hole in the wall in the manager's office; in O'Keefe the worker was intoxicated at work; and in Werner the worker had an excessive level of absenteeism without reasonable excuse. Given that the Tribunal accepts the evidence of the respondent as to the circumstances of his accessing the computer records and also that he was not aware that what he had done was a breach, and in the absence of any contrary evidence put forward by the applicant, the Tribunal is not satisfied that the respondent's actions constituted misconduct of as serious a nature as the workers in the above authorities. The Tribunal is therefore not satisfied that the respondent's unemployment was due to the respondent's misconduct as a worker and finds that section 629 of the Act does not apply in this case.
The Tribunal turns now to address the issue of whether the respondent's unemployment was due either directly or indirectly to his voluntary act and if so, whether such voluntary act was reasonable in accordance with section 628 of the Act.
In her submissions Ms Odgers referred to the letter of Bourne Lawyers (Exhibit R3) which was advice given to the respondent by his solicitors. In particular she made reference to the extract contained therein, namely:
"We confirm, however, that on our reading of the documents which you have provided to us and from your instructions your prospects of succeeding in such an Application are fair at best."
Ms Odgers submitted that it was to the respondent's advantage to resign, rather than having a dismissal on his work record. She went on to further submit that such is reinforced in the extract set out hereto and being advice of the respondent's lawyers. The Tribunal is unable to accept this explanation as an interpretation of the advice by Bourne Lawyers and rejects this submission.
Similarly, Ms Odgers submitted that another part of the Bourne Lawyers' letter of advice stated the respondent had been put on notice that his work performance was inadequate and that his employment was in jeopardy if his performance did not improve. In fact the advice to the respondent stated (Exhibit R3):
"We believe that it would be open to the [Industrial Relations] Commission to find that you had been put on notice that your work performance was inadequate and that your employment was in jeopardy if your performance did not improve."

In relation to this the Tribunal is satisfied that the respondent was unemployed at the time of the advice and that as the Commission had not heard the matter this Tribunal is not prepared to hazard a guess that the Commission would make such a finding. Likewise there is no evidence before the Tribunal that the Commission would regard the accessing of computer records as done by the respondent as justifying dismissal in the context of previous warnings given to him.

Ms Odgers in her submissions also sought to find support in the advice of Bourne Lawyers (Exhibit R3) wherein was stated that the Commission may well regard such actions as justifying dismissal in the context of the previous warnings given to the respondent through the three performance counselling interviews. The Tribunal is satisfied on the evidence before it that there is no support for such view. In fact the evidence is quite clear that the respondent was told on the spot to either resign or face dismissal due to his breach of security in accessing the employer records. At no time was it ever suggested nor does the evidence state that Mr Zampaglione's ultimatum for ending employment referred to anything but the breach of security.
The Tribunal is satisfied on the evidence before it that the employer, Royal and Sun Alliance, was keen to terminate the services of the respondent and in its haste it forgot about ensuring that the rights of the respondent were not prejudiced and that he be afforded even a short time of a few hours to consider his position and possibly to obtain advice from his union representative or lawyer. He was denied natural justice. In so saying this the Tribunal accepts that even if the respondent had been given this opportunity the final result may have been the same. Notwithstanding this, because he was placed under considerable pressure with the fear of instant dismissal if he did not resign there and then, his resignation cannot be said to be voluntary and therefore sub-section 628(a) of the Act is not satisfied.
Ms Odgers submitted that the respondent could have refused to resign and allow the employer to show its hand, and if it did dismiss him then he could take appropriate action for unfair dismissal. In response to this the Tribunal is satisfied that the respondent has given an acceptable explanation that he was not in any financial position to pursue such course and that if he had been dismissed then it would be difficult for him to find other employment. The respondent was confronted with a hostile climate and told to either resign or be dismissed. The Tribunal believes that in the circumstances he took the only course that any reasonable person confronted with a similar situation would have taken. For this reason, the Tribunal is satisfied and so finds that even if it be considered that the respondent resigned voluntarily, his resignation was reasonable in the circumstances and that therefore sub-section 628(b) is not satisfied.
The Tribunal is therefore satisfied that the requirements of sections 628 and 629 of the Act are not met and that as a consequence, the respondent should not have his NSA reduced by an 18% activity test breach rate reduction for the period 18 August 2000 to 2 February 2001.
Accordingly for the reasons outlined the Tribunal affirms the decision under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE.
Signed:   (Signed)
  Barbara Armstrong, Associate
Date/s of Hearing  21 March 2002 & 17 July 2002
Date of Decision  26 July 2002
Counsel for the Applicant        Ms Lee-Anne Odgers
Solicitor for the Applicant         Centrelink
Counsel for the Respondent    Mr Christian Goldsworthy
Solicitor for the Respondent    Welfare Rights Centre