FREEMAN and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 681

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 681

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1755

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DALE FREEMAN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date8 September 2010

PlaceBrisbane

Decision I set aside the decision under review and remit the matter to the Secretary to consider the application in accordance with these reasons.

.............[Sgd].................................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – Eight week unemployment non-payment – Employment ceased due to voluntary act of the applicant – Voluntary act of leaving employment not reasonable – SSAT unable to make determination regarding hardship – Decision remitted for Secretary to determine the applicability of severe financial hardship.

Social Security (Administration) Act 1999 (Cth) Div 3A, ss 42A, 42S, 131, 145

Social Security Legislation Amendment (Employment Services Reform) Act 2009 (Cth)

Roberts and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 829

Florenca and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 447 at [8] 

REASONS FOR DECISION

8 September 2010 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      Mr Dale Freeman (the applicant) has made an application to review a decision to impose an eight week unemployment non-payment period in respect of newstart allowance.

HISTORY OF THE MATTER

2.      Since 7 May 2007, with some exceptions, the applicant has been in receipt of newstart allowance. 

3.      On 11 December 2009, the applicant commenced employment with Townsville Pools and Spas.  On 2 January 2010, the applicant left that employment.

4.      On 4 January 2010, the applicant attended the office of his employment service provider, Jobfind Aitkenvale.  The following notes of that interview are in evidence:

... he quit his job at the pool shop on Saturday 02.01.10.  He stated that he was an hour late and when he arrived his boss was in his face stating that he was lazy etc.  [H]e stated that it was either quit or punch him.  He did state that he was not happy with what he was doing as he was told that he was employed as a service person and had only been to one job.  [H]e has been working in the store.

5.      On 11 January 2010, the applicant advised Centrelink that he had ceased employment “due to falling out with employer”.  On that date the applicant’s former employer was contacted by Jobfind.  Jobfind recorded that conversation as a file note which in part reads:

Advise never turned up on time for work not once and thinks he only completed 1 full day of work while working there.  Also advise would take off at lunch and not return.  Gary advise he did not get rid of him he just left.

PRIOR DECISIONS

6.      On 27 January 2010, Centrelink made a decision to impose an 8 week unemployment non-payment period in respect of the applicant’s newstart allowance on the basis that he had become unemployed due to a voluntary act.

7.      On 19 February 2010, the applicant requested review by an Authorised Review Officer (ARO).  The applicant continued to be paid newstart allowance pending the review.  On 10 March 2010, the ARO affirmed the decision to impose the non-payment period.

8.      On 19 April 2010, the Social Security Appeals Tribunal (SSAT) also affirmed the decision of Centrelink.  The SSAT considered the appeal on the papers.

9.      On 5 May 2010, the applicant filed an application for review of the decision to this Tribunal.

RELEVANT LEGISLATION

10. The legislation that I am required to administer is contained in Division 3A of the Social Security (Administration) Act 1999 (Cth) (the Act) which is entitled “Compliance with obligations in relation to participation payments”. Division 3A was inserted into the Act by the Social Security Legislation Amendment (Employment Services Reform) Act 2009 (Cth).  These reasons will refer to a number of provisions that are contained in Division 3A that I have considered relevant to the determination of this application.

WHETHER APPLICANT BECAME UNEMPLOYED BECAUSE OF VOLUNTARY ACT

11.     The first issue that I have to decide is whether the applicant became unemployed on 2 January 2010 as a result of his voluntary act.  This issue arises because s 42S(1) of the Act provides that a participation payment is not payable to a person for the period mentioned if the Secretary determines that the person is unemployed as a result (whether direct or indirect) of a voluntary act of the person.  A ‘participation payment’ is defined in s 42A of the Act to include newstart allowance.

12.     There is no real issue between the parties that the applicant is unemployed because he chose to leave his employment at Townsville Pools and Spas. The applicant, in his evidence, remarked that after he left the workplace on 2 January 2010 he did not return to the workplace on the advice of his father.  In my view, that is evidence that the applicant left the employment voluntarily.  I can infer that he sought the advice of his father because he was considering whether or not he should return to the workplace.  I find that he made a conscious decision not to return to the workplace after speaking to his father.

13.     The applicant certainly did not contact the employer to ascertain whether he could return to the workplace.  There is certainly no evidence before me that the applicant was dismissed.  Mr Gary Teitz, the owner of Townsville Pools and Spas, gave telephone evidence before me.  He verified his statement of 13 July 2010 which is in evidence.  In that statement he remarks: “Dale was not dismissed; he simply left and did not return”.

14.     There is other evidence which points to the applicant being unemployed because of his voluntary act.  On 4 January 2010, the applicant attended at the provider and stated that he “quit his job at the Pool shop”.  This is probative contemporaneous evidence that the applicant voluntarily left his employment. 

15.     I find that the applicant is unemployed because of his voluntary act.

WHETHER VOLUNTARY ACT OF APPLICANT WAS REASONABLE

16.     I am next required to consider whether the voluntary act of the applicant was reasonable.  This is because of the operation of s 42S(2) of the Act which provides that the Secretary must not make a determination under s 42S(1)(a) if the Secretary is satisfied that the voluntary act is reasonable.

17.     The “reasonable test” in s 425(2) of the Act requires me to consider whether the voluntary act was objectively reasonable.  This has been the ruling of this Tribunal in considering the application of the former s 629(4) of the Act which was replaced by s 425(2)[1].  The Explanatory Memorandum to the Social Security Legislation Amendment (Employment Services Reform) Act 2009 (Cth) contained a statement that the amendment to the Act by the insertion of s 425 was intended to have no change in policy[2].  

[1] Roberts and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 829; Florenca and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 447 at [8].

[2] Explanatory Memorandum, p 19. 

18.     I have formed the view that it was not reasonable for the applicant to leave employment because he was reprimanded for being late.  The applicant should be commended for avoiding conflict in the workplace but it was not, in my view, reasonable for the applicant to leave paid employment.  As Member Webb recently remarked in Roberts and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 829 at [12] “there is a substantial difference between walking away from a situation of conflict in a workplace and leaving that employment entirely”.

19.     I have considered the contention of the applicant that he did not like working in the store at the place of his employment and that he wanted to work as a service person which would involve the servicing of pools.  I accept the evidence of the applicant that he initially joined the employment of Townsville Pools and Spas because he wanted to work as a service person.  I, however, accept the explanation of Mr Teitz regarding why he was given indoor duties.

20.     Mr Teitz, in his statement of 13 July 2010, which is in evidence, remarked that the service people would leave the workplace at a time before the applicant would arrive for work and that is why the applicant was put on indoor duties.  As the applicant was not represented, I advised him that when he had the opportunity to cross-examine Mr Teitz, he was able to challenge any part of his evidence.  The applicant certainly did not challenge the explanation that Mr Teitz gave as to why he was not given outdoor duties.

21.     The applicant in his evidence stated that he was required to work in the store and was not given any protective equipment when working with chemicals.  However, Mr Teitz stated that protective equipment was available.  The applicant did not challenge this aspect of the evidence of Mr Teitz.  The applicant did not voice any concern about the non-availability of protective equipment to his employment service provider, any Centrelink officer or the ARO.  I do not consider that there is any basis to this complaint of the applicant.

22.     At the hearing, the applicant was supported by Ms Melinda Andrews who is the mother of their child.  Ms Andrews would assist the applicant with transport in order for him to attend work.  In some respects her evidence would verify the explanation of Mr Teitz as she would drop the applicant at work at a time when the service people would have left.  I accept that Ms Andrews gave evidence to the best of her ability but her evidence was not probative of the issues which I have to determine.

23.     I do not consider that the voluntary act of the applicant in leaving paid employment was reasonable.

HARDSHIP

24.     The ARO had advised the applicant of the possible application of s 42S(4) of the Act.  This subsection provides that the Secretary may end a person’s unemployment non-payment period where the Secretary determines that serving the unemployment non-payment period would cause the person to be in severe financial hardship and the person is in a class of persons specified by the relevant financial instrument.

25.     The ARO advised the applicant that the relevant financial instrument is the Social Security (Administration) (Ending Employment Non-payment Periods –Classes of Persons) (DEEWR) Specification 2009 No. 1.  On the evidence before me the applicant could come within the terms of this instrument.  He is a father of a child, and the child may be dependent upon him.  However, the applicant did not, in his evidence mention that he provided support to his child.  He also may have a medical condition which may be relevant.

26.     In my view, the ARO has endeavoured to fairly administer the applicable social security law.  The applicant was invited by the ARO to make submissions on the issue of hardship.  However, the applicant does not appear to have made any submissions on this issue.  The SSAT was unable to come to a conclusion on this issue as the applicant did not appear before the SSAT.

27.     The payment of newstart allowance to the applicant appears to have continued.  The Secretary can continue payments pending the outcome of an application for review: see s 42S(1), note; s 131, s 145. 

28.     I have decided to set aside the decision under review to enable the Secretary to make enquiries to consider the possible application of s 42S(4) of the Act to the case of the applicant before deciding whether to make a determination under s 42S of the Act.

DECISION

29.     I set aside the decision under review and remit the matter to the Secretary to consider the application in accordance with these reasons.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: ......................[Sgd].......................................................
              Kate Slack, Research Associate

Date/s of Hearing  20 July 2010
Date of Final Submissions       26 August 2010
Date of Decision  8 September 2010
Applicant was self-represented
Solicitor for the Respondent     Joe Guthrie, departmental advocate