Foster and Secretary, Department of Education, Employment and Workplace Relations

[2009] AATA 493

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 493

ADMINISTRATIVE APPEALS TRIBUNAL      )   

)    No: 2008/5345

GENERAL ADMINISTRATIVE  DIVISION       )   

ReRaylene Foster

Applicant

And    Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

TribunalMs N Isenberg, Senior Member

Date2 July 2009

PlaceSydney

DecisionThe decision under review is affirmed.

....................[sgd]..........................

Ms N Isenberg

Senior Member

CATCHWORDS – Newstart allowance – whether applicant was dismissed from employment due to misconduct – whether Tribunal has a discretion in the application of the eight week non payment period – applicant was dismissed for misconduct and is therefore subject to a mandatory eight week non payment period – Tribunal has no power to consider reasonableness of dismissal.

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RELEVANT ACT/S:

Social Security Act 1991: s 629

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CITATIONS

North v Television Corporation Ltd (1976) 11 ALR 599

Secretary Department of Education, Employment and Workplace Relations v Payne [2007] AATA 1745

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REASONS FOR DECISION

2 July 2009	Ms N Isenberg, Senior Member
Background

1.      The decision under review is a decision of the Social Security Appeals Tribunal (SSAT) dated 15 October 2008, affirming Centrelink’s decision of 19 June 2008 that the Applicant be subject to an eight week newstart non payment period as she had been dismissed from employment as a result of misconduct.

2.      On 26 May 2008, Ms Foster was dismissed from employment for stealing $50. On 29 May 2008, Ms Foster contacted Centrelink and enquired about claiming newstart allowance.  She subsequently lodged a claim on 16 June 2008.  Centrelink determined that newstart allowance was not payable as Ms Foster had been dismissed from employment as the result of misconduct.  That decision was affirmed on internal review, and by the SSAT.  Ms Foster now seeks review by this Tribunal.

Issues before the Tribunal

3.      The issues before the Tribunal are:

·Was Ms Foster was dismissed from employment for misconduct?; and

·If so, should an eight week non payment period be applied to her application for newstart allowance?

Legislation

4. Section 629(1)(c) of the Social Security Act 1991 (the Act) provides that newstart allowance is not payable for the period of 8 weeks if the person is unemployed due to the person's misconduct as a worker.

Evidence before the Tribunal

5. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T documents), which were taken into evidence.  Ms Foster gave oral evidence in person.  She was cross examined and I also asked her some questions.

6.      Ms Foster commenced work at a café in the Hunter Valley in September 2007.  She was, at first, a kitchen hand and then worked there as a cook.  After Ms Foster was made permanent in this position, it appears that a new worker began to be allocated more shifts.  Consequently, Ms Foster found herself in financial crisis.  She had previously borrowed some money from the employer and was reluctant to ask again.  Instead she stole $50.  Later that day the police came to the cafe and she was questioned.  She admitted stealing the money and immediately returned it.  She was issued with a ‘court notice’ for a charge of larceny.

7.      A couple of days later she received a letter from the employer confirming her ‘instant dismissal’ for serious misconduct.  Although the misconduct for which she was dismissed was not specified, Ms Foster knew it was because of the theft.

8.      When she appeared at court she was unrepresented and she pleaded guilty.  She had previously been charged with an offence of defrauding Centrelink, which had arisen when she had understated her income.  She had been placed on a 2-year good behaviour bond.  The effect of the conviction for the charge for the $50 theft was a breach of that bond and she was sentenced to 8 months weekend detention, which she served between September 2008 and March 2009.

9.      Ms Foster gave evidence of what could only be described as appalling work conditions at the cafe.  Her account suggested continual harassment, which the owner of the business ignored notwithstanding Ms Foster’s complaints.  She also believed that the final pay reconciliation was inaccurate and that she had been deprived of several hundred dollars to which she was entitled.

10.     Earlier this year she obtained employment at Maitland TAFE, but after a police check was conducted, she lost the job.  She assumed the police check would only have been to do with working with young people, but apparently it was a broader search.  Her continued search for a job has so far been unsuccessful.

11.     She now lives with her daughter and her daughter’s partner and their child.  The daughter’s partner is the only wage earner and the daughter apparently receives no Centrelink benefits (although presumably may have some entitlement to family tax benefits and parenting payments).

Conclusion

12.     There can be no doubt that Ms Foster’s theft from her employer was “misconduct as a worker”: North v Television Corporation Ltd (1976) 11 ALR 599.  Further, her employment was clearly terminated as a result of that misconduct.

13.     Ms Foster’s evidence was that she stole the money because of a financial crisis.  It was not in retaliation for her ill-treatment, nor because there was, at that stage, any dispute about pay.  Even if that were the case, the theft, which was admitted, stands independently of other matters, and is inexcusable.  In any event, I do not have the power to consider whether the allegation of misconduct giving rise to termination was reasonable.  It is clear that she became unemployed as a result of misconduct as a worker, and as such is then subject to a mandatory eight week non payment period: Secretary Department of Education, Employment and Workplace Relations v Payne [2007] AATA 1745 at para 49.  This is a matter about which I have no discretion.  Ms Foster is not to receive newstart allowance for a period of 8 weeks.

14.     I was informed that Ms Foster has continued to be paid newstart allowance and that the result of this decision will be the immediate imposition of an 8 week non payment period.  Her foolishness in taking the money has come at a very high price; quite apart from her incarceration.  She did not bring to the attention of the sentencing ’judge’ that she would suffer an 8 week non payment period of newstart allowance.  She has also subsequently lost a job because of her conviction. She needs to keep her old car running so as to be able to go for job interviews.  She is currently living off the generosity of her daughter’s partner. 

15.     Although I have no power to make a direction about the manner in which the imposition of the 8 week non-payment period is applied, I would recommend that Centrelink consider giving effect to this decision by reducing Ms Foster’s present entitlements over a period of several months so as to assist Ms Foster and her family in coping with the effects of the reduction.

16.     The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of,

Signed:   .................[sgd].........................................................
               Renee Wallace, Associate

Date/s of Hearing:  18 June 2009
Date of Decision:  2 July 2009
Solicitor for the Applicant:                  Self Represented
Solicitor for the Respondent:             Mark Nicoletti, Centrelink