Garnys; Department of Education, Training and Youth Affairs - [2000] AATA 813

DECISION AND REASONS FOR DECISION [2000] AATA 813

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1120

GENERAL ADMINISTRATIVE DIVISION        )
           Re      Secretary, Department of Education Training and Youth Affairs
  Applicant
           And    John Garnys
  Respondent

DECISION

Tribunal R P Handley, Senior Member Rear Admiral A R Horton, AO, Member

Date13 September 2000
PlaceSydney

Decision The decision under review is affirmed.

[Sgd] R P Handley
Senior Member

CATCHWORDS
Social Security – Newstart Allowance – Federal Court remittal – case management activity agreement – declined job interview – cancellation of Newstart Allowance – whether reasonable steps to comply – whether within person's control – whether reasonably foreseeable

Employment Services Act 1994
Social Security Act 1991

Re Secretary, Department of Employment, Education, Training and Youth Affairs and Garnys (AAT 13040, 1 July 1998)
Garnys v Secretary, Department of Employment, Education, Training and Youth Affairs [1999] FCA 860
Secretary Department of Employment, Education, and Youth Affairs v Ferguson (1997) 147 ALR 295
Secretary, Department of Employment, Education, Training and Youth Affairs v Baker (1997) 48 ALD 33
Re Secretary, Employment Workplace Relations and Small Business and Pool (1998) (AAT 13480, 25 November 1998)
Marabouti v Secretary, Department of Employment, Education Training and Youth Affairs (1998) 53 ALD 585
Secretary, Department of Employment, Education, Training and Youth Affairs v Hall (1997) 48 ALD 38
Secretary, Department of Employment, Education, Training and Youth Affairs v Messenger (1997) 48 ALD 28
Walsh v Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690

REASONS FOR DECISION

R P Handley, Senior Member Rear Admiral A R Horton, AO, Member

This matter has been remitted to the Tribunal by the Federal Court for rehearing. It concerns an application to the Tribunal lodged on 18 December 1996, by the Secretary of the Department of Employment, Education and Youth Affairs ("the Applicant") seeking a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 11 November 1996, to set aside a decision of a delegate of the Applicant and a decision of an authorised review officer and substitute a new decision to restore payment of newstart allowance to John Garnys from the date of cancellation.
At the hearing, the Applicant was represented by Greg Peek of the Australian Government Solicitor's office, and Mr Garnys was represented by Sandra Koller of the Welfare Rights Centre. The Tribunal had before it the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, documents tendered in evidence at the earlier Tribunal hearing on 1 June 1998, and a transcript of that hearing, together with further documents tendered in evidence at the hearing of this matter on 30 June 2000. Mr Garnys gave additional sworn evidence at that hearing.
background
Mr Garnys, who is now aged 57, has been unemployed, apart from occasional casual work, since the early 1980s. In 1996, he was receiving newstart allowance. On 1 May 1996, he signed a Case Management Activity Agreement ("CMA Agreement") in which he agreed to "apply for all positions where appropriate". On 25 May 1996, Mr Garnys attended the Maroubra office of the Commonwealth Employment Service ("CES") in connection with a recruitment drive by Franklins. He filled out and handed in an "Application for Employment" with Franklins but declined to stay for an interview. Instead, he attended his doctor's surgery in Darlinghurst with a view to obtaining medication.
On 28 May 1996, the Applicant decided to cancel payment of newstart allowance to Mr Garnys on the ground that he had failed to comply with the terms of his CMA Agreement. This decision was affirmed by an authorised review officer on 7 June 1996, but was set aside by the SSAT on 11 November 1996 which substituted a new decision to restore payment of newstart allowance from the date of cancellation.
On 18 December 1996, the Applicant lodged an application for review by the Tribunal. On 1 July 1998, the Tribunal decided to set aside the decision of the SSAT and substitute a decision that the decision of the authorised review officer to cancel payment of newstart allowance to the Respondent be affirmed (Re Secretary, Department of Employment, Education, Training and Youth Affairs and Garnys AAT 13040, 1 July 1998). On 25 June 1999, the Federal Court set aside the decision of the Tribunal and remitted the matter to the Tribunal "for rehearing in accordance with law, with or without the calling of fresh evidence as the Tribunal shall determine" (Garnys v Secretary, Department of Employment, Education, Training and Youth Affairs [1999] FCA 860).
applicable legislation
The relevant provisions of the Employment Services Act 1994 ("the ES Act") s45 (5) and (6), and the Social Security Act 1991 ("the SS Act") s41 and 660I are as follows:
45 Qualification for job search allowance or newstart allowance
(5)The person is not qualified for a job search allowance or a newstart allowance in respect of a period unless (in addition to meeting any other requirements set out in the Social Security Act 1991):
(a)when the person is required under section 38 to enter into a Case Management Activity Agreement in relation to the period, the person enters into that agreement; and
(b)while the agreement is in force, the person satisfies the Employment Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and
(c)at all times during the period when the person is a party to the agreement, the person is prepared to enter into another such agreement instead of the existing agreement if required to do so under section 38.
Compliance with Case Management Activity Agreement
(6)For the purposes of paragraph (5)(b), a person is taking reasonable steps to comply with the terms of a Case Management Activity Agreement unless the person has failed to comply with the terms of the agreement and:
(a)the main reason for failing to comply involved a matter that was within the person's control; or
(b)the circumstances that prevented the person from complying were reasonably foreseeable by the person.
41 Qualification for/payability of social security payment
Before a social security payment is payable to a person under this Act:
(a) the person must be qualified for the social security payment; and
…
660I Cancellation or suspension determination
If the Secretary is satisfied that a newstart allowance is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the allowance is to be cancelled or suspended.

mr garnys' additional evidence

Mr Garnys was called to give additional evidence concerning a letter from D. Downey, Practice Manager for the Oxford Square Medical Centre at Darlinghurst dated 4 November 1998 (R2). Mr Garnys said he went to see Ms Downey, whom he knew, to ask for a letter confirming that he had telephoned the Medical Centre on the morning of 25 May 1996 and had subsequently attended the Centre, although he had not been able to see a doctor. Mr Garnys said that when he phoned the Centre at about 9.00am on that day and explained that he wanted to see a doctor so that he could obtain his medication, he was told to come in later and they would try and fit him in with a doctor. Mr Garnys said he would be there between 11am and 12 noon.
Mr Garnys said he knew Ms Downey and other staff at the Centre well. They would have been able to confirm that he attended the Centre on that morning, even though, as a result of his not having seen a doctor because they were too busy, there would have been no record of his attending on his medical card. He did not recall whether Ms Downey had been present when he attended the Centre on 25 May 1996. When he went to ask her for a confirmatory letter on 4 November 1998, she wrote him a letter while he was there. Mr Garnys explained that he obtained the letter from Ms Downey in preparation for the Federal Court hearing.
Mr Garnys said he normally attended the Oxford Square Medical Centre rather than the Maroubra doctor because he gets better service at the Medical Centre. After phoning the Centre on the morning of 25 May 1996, he hurried down to Maroubra CES. He rode there on his bicycle so that he could go on to the Medical Centre afterwards, a ride of 45 to 50 minutes. He used his bike to save money and to avoid waiting for a bus to get to the Centre.
Mr Garnys said he was expecting to have a 10 minute interview at the CES and was prepared to wait between 45 minutes and an hour. But he wanted to get to the Medical Centre between 11am and 12 noon as he said he would. Mr Garnys put on shoes for the interview. At the time, he was suffering from an ingrowing toenail, which made it difficult for him to walk. He did not then normally wear shoes, preferring thongs, which ensured air got to his toe and avoided his foot sweating. Although walking was difficult, riding his bike was easier because this did not involve bending his toe.
Mr Garnys was asked why, in a response to a letter from the Applicant dated 12 June 1997 (A3), someone at the Medical Centre had stated "Mr Garnys has not attended this Medical Centre since 1 August 1995". Mr Garnys said that between 1996 and November 1998, he had gone to the Centre regularly, for example for prescriptions for medication and to have his ears syringed. He is prone to ear infections. He said the Medical Centre response might be explained by difficulties with their record keeping. He had experienced problems on a number of occasions when they could not identify him in their computer records although his attendance to see the doctor was recorded on his medical card. He has had similar problems with his Medicare card. Mr Garnys said this may be as a result of some records being in his Lithuanian name, Vylius, rather than John, which is the name he now uses.
the applicant's submissions
Mr Peek, for the Applicant, said there was no dispute as to the application of the law as set out by Mansfield J in Secretary Department of Employment, Educationand Youth Affairs v Ferguson (1997) 147 ALR 295.
Mr Peek referred the Tribunal to Mr Garnys' CMA Agreement and submitted that Mr Garnys had breached the terms of the agreement, specifically clauses 1 and 2. He said the decision of Heerey J in Secretary, Department of Employment, Education Training and Youth Affairs v Baker (1997) 48 ALD 33, made it clear that a general clause such as clause 1 is valid, being consistent with the general legislative objective expressed in the Act. This decision was followed by the Tribunal in Re Secretary, Employment, Workplace Relations and Small Business and Pool (1998) (AAT 13480, 25 November 1998), which discussed what sort of conduct is inconsistent with such a general obligation.
Mr Peek noted that Franklins had been undertaking a bulk recruitment drive interviewing for a range of positions. He referred to Ms Hamill's evidence that applicants would not have been discriminated against on health grounds (A1). Such matters would have been discussed in the course of an interview.
If a breach of the CMA Agreement is found, then, Mr Peek submitted, the application of s45 (6) should be considered. Attending for an interview was within Mr Garnys' control. He could have organised to attend a medical appointment at some other time. Mr Garnys had told Peter Groves (A3), the authorised review officer, that he only needed to attend the Medical Centre in order to obtain cream for his dermatitis. Mr Garnys had conceded to Mr Groves that he could have obtained this medication at another time.
Mr Peek submitted that the circumstances which prevented Mr Garnys from complying with his CMA Agreement were foreseeable. He could have organised a medical appointment without interfering with the need to have an interview. Mr Peek pointed out that it was Mr Garnys being late in attending Maroubra CES on 25 May 1996, which caused the delay in his being interviewed. He was advised that he needed to stay for an interview in order to be considered for a position.
With regard to matters raised by Ms Koller, Mr Peek contended that the telephone call made by Mr Garnys to Franklins before attending Maroubra CES had not provided him with any additional information. Mr Peek also noted that the Application for Employment completed by Mr Garnys had been completed skimpily when compared to his curriculum vitae (A3).
the respondent's submission
Ms Koller, for Mr Garnys, discussed the material facts. She said Mr Garnys suffers from chronic dermatitis affecting his hands and he must "avoid contact with newsprint or dust or grease/solvents" according to the Clarification of Medical Conditions form completed by Dr Cindy Pan of the Oxford Square Medical Centre (R1). Ms Koller said the transcript of the first Tribunal hearing (A1, p55) also indicated that Mr Garnys had a self-esteem problem as a result of his condition.
Ms Koller said Mr Garnys' efforts to find work were genuine. He had taken positive steps to try and obtain employment. This was his second CMA Agreement. His previous case manager, Michael Besser, had not breached Mr Garnys and had no complaints about his conduct. Mr Garnys had applied for a job with Franklins previously, in October 1995, and had been rejected (A3). Ms Koller noted Mr Garnys had telephoned Franklins before attending Maroubra CES on 25 May 1996 to find out about their recruitment drive. When he attended on 25 May 1996, he assumed Franklins knew of him from his previous application. Ms Koller said the fact Mr Garnys put on shoes for the interview that day indicated the seriousness of his intention, given that wearing shoes made his toe hurt. But when he attended the CES, what occurred was not in line with his expectations as a result of the telephone call.
Ms Koller said Mr Garnys had been at a disadvantage at the earlier Tribunal hearing because he had not been represented. He had not appreciated the significance of the evidence concerning his attendance at the Oxford Square Medical Centre. Ms Koller noted that while Ms Hamill had been asked and denied any discrimination on health grounds, she had not been asked about whether Franklins had a propensity to employ younger people.
Ms Koller submitted that clause 1 of the CMA Agreement, being a pre-printed term and of a general nature, should be considered a pre-amble. She referred to Heerey J's decision in Baker (supra), contending that clause 1 could not be a stand-alone term in the absence of another term in the Agreement which required some activity.
With regard to clause 2(ii), Ms Koller said Mr Garnys had agreed to "apply for all positions where appropriate". The issues for consideration were, first, was there an application and, secondly, was the position appropriate? These issues were discussed by Hill J in the Federal Court decision in this matter (Garnys ((supra)) at paragraph 25). Ms Koller referred to Secretary,Department of Employment, Education, Training and Youth Affairs v Hall (1997) 48 ALD 38, where Heerey J adopted a narrow construction of the terms of a CMA Agreement because of the adverse consequences to the applicant if a breach of the Agreement were found. Ms Koller argued that the word "apply" in clause 2(ii) should be given a narrow construction. With regard to what is "appropriate", Ms Koller referred the Tribunal to the Federal Court decision in Marabouti v Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 53 ALD 585, where Lindgren J discussed a term which required a person "to accept a suitable job offer"..
Ms Koller submitted that Mr Garnys had "applied" for the Franklins jobs: he had put on shoes, and completed an application form in what he considered to be a reasonable way in the circumstances. For example, he had no recent work references and so thought, rather than putting down references from years before, it was safer to put down the name of his Case Manager and her phone number. His answers to the series of questions were both serious and reasonable, especially in the context of his belief that Franklins already had information about him from his previous application in about September 1995.
Ms Koller referred to comments made by Hill J in Garnys (supra) at paragraph 24, in which he expressed disagreement with parts of Mansfield J's decision in Ferguson (supra) at 304 – 305. Ms Koller said that Hill J's comments were obiter and noted other Federal Court decisions in Secretary, Department of Employment, Education, Training and Youth Affairs v Messenger (1997) 48 ALD 28, and Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690, which followed Mansfield J's approach.
Ms Koller contended that the main reason for Mr Garnys not attending the interview was his medical condition and his misunderstanding of what was expected of him when he attended Maroubra CES as a result of his prior telephone call to Franklins. However, even if the definition in s45(6) was not satisfied, then the broad compliance test, which, according to Ferguson (supra) is required as the final part of s45 (5)(b), should be considered: was Mr Garnys taking reasonable steps to comply with his CMA Agreement? Ms Koller said his overall attitude and broad attempts at compliance should be considered. She submitted Mr Garnys was taking reasonable steps to comply with his Agreement. If he did need help in completing employment application forms, this was not recognised at the time and he had not undertaken appropriate training.
consideration of law and findings
Section 41 of the SS Act provides that before a Social Security payment is payable to a person under the SS Act, the person must be qualified for the Social Security payment. Section 660I states that if the Secretary is satisfied that newstart allowance is being or has been paid, to a person to whom it is not, or was not, payable, then the Secretary is to determine that newstart allowance is to be cancelled or suspended.
Section 45(5) of the ES Act provides that a person who has a CMA Agreement in force is not qualified for newstart allowance unless:
"the person satisfies the Employment Secretary that the person is taking reasonable steps to comply with the terms of the agreement".

Further explanation of what is meant by taking reasonable steps to comply is provided in s45 (6). The approach which should be adopted in the application of these provisions was explained by Mansfield J in Ferguson (supra) and, as Ms Koller has pointed out, the Court in Messenger (supra) and Walsh (supra).

In the Tribunal's view, the clearest statement of the approach to be adopted is that of Nicholson J in Walsh (supra). He states, at 694:
"The express terms of s 45(5)(b) and (6) of the ES Act require that in deciding whether a person is taking reasonable steps to comply with the terms of an agreement a decision-maker is bound to take into account the following factors:
(i)whether the person has failed to comply with the terms of the agreement.
(ii)whether, in the event of a failure to comply with the agreement the main reason for failing to comply involved a matter within the person's control.
(iii)whether, in the event of a failure to comply with the agreement the main reason for failing to comply involved a matter that was not within the person's control, whether the circumstances that prevented the person from complying were reasonably foreseeable by the person.
(iv)whether, notwithstanding a failure to comply with the agreement which was either within the person's control or reasonably foreseeable by the person, the person can show that he is taking reasonable steps to comply with the terms of the agreement."

In Garnys (supra), Hill J says he disagrees with Mansfield J in Ferguson (supra) to the extent that, according to Mansfield J, notwithstanding the application of s45 (6)(a) or (b) to a person, the person can still satisfy the broader question posed by s45(5)(b), that the person is taking reasonable steps to comply with the CMA Agreement. (This is the fourth factor identified by Nicholson J in Walsh, above, which requires a consideration of the quality of the conduct of the person.) Hill J says, at paragraph 24:
"It seems to me that s45 (5)(b) is expressed to be a definition of the circumstances in which there will be a taking of reasonable steps to comply with the terms of the agreement and s45(5)(b) does not raise an independent question."

But Hill J then says, at 24, that his disagreement with Mansfield J does not matter in the present case:
"Whether or not s45(5)(b) operates independently of s45(6) and in primacy to it, it is clear enough that it is necessary to consider the terms of s45(6)."
Hill J's criticism of the Tribunal's earlier decision in this case stems from what he identified as a failure by the Tribunal to make relevant findings of fact and to give reasons for those findings. The present Tribunal will, therefore, apply itself to making relevant findings in accordance with the approach set out by Nicholson J in Walsh (supra).
The first matter to be considered is whether Mr Garnys failed to comply with the terms of his CMA Agreement. This states:
"1.       I will so everything I can to get a job and I am willing to undertake suitable paid work;
2.        I will undertake the following activities within the timeframes specified, to help me get a job:
NO.     ACTIVITY – what needs to be done to gain a job…
I         I agree to report my efforts to obtain a job to my Case Manager
III agree to report to the match team once a week and apply for all positions where appropriate."

Only clause 2.II is handwritten. The remainder of the Agreement is pre-printed. Mr Peek submitted that Mr Garnys had breached clauses 1 and 2.II.

With regard to the alleged breach of clause 1, Mr Peek referred the Tribunal to Heerey J's decision in Baker (supra). In that case, the pre-printed clauses were exactly the same as in the present case. Heerey J found clause 1 to be valid because it was consistent with the general legislative objective expressed in the ES Act, that of securing sustainable employment for unemployed persons. However, he found a failure to attend an adult literacy and basic education assessment ("ALBEA") program was not a breach of that clause. Rather, it was a breach of an "activity" based clause, clause 2(iv), by which the person had agreed to participate in and complete an ALBEA program.
In Re Pool (supra), the Tribunal, following Baker (supra), decided that a clause identical to clause 1 was valid. However, it was then necessary to "determine what sort of conduct is inconsistent with that general obligation" (paragraph 24) that a person must do all that they can to obtain suitable employment:
"25. The Tribunal is satisfied that the language of the term itself is expressed in a manner that is sufficiently clear for a person to be able to understand the sort of conduct that would be inconsistent with the requirement to do everything they can to get a job and to be willing to accept a suitable offer of employment. The purpose of the term is also consistent with the object of the agreement and is not inconsistent with the idea that only those terms that are within a person's capabilities should be included in the agreement in accordance with subsection 39(6). The promise "I will do everything I can…" is subjective, and implies that a person should do everything that the can do, that is both reasonable and within their own capacity rather that a general requirement to do everything possible to get a job. The Tribunal therefore finds that the term is more than a preamble or recital to the terms of the agreement and is a term capable of founding a breach."

The Tribunal emphasised the subjectivity of the clause (at 40):

" The language of the term implies that a person should only be expected to act within their own capabilities rather than be judged by an objective standard."

With regard to the alleged breach of clause 2.II, Ms Koller noted that the obligation was to apply for all positions where "appropriate". She referred the Tribunal to the discussion of "suitable" in Marabouti (supra), and to Heevey J's decision in Hall (supra), with regard to adopting a narrow construction where adverse consequences would otherwise flow from a broader meaning.
In the light of the above discussion, did Mr Garnys breach either clause 1 or 2.II of his CMA Agreement? The Tribunal finds that Mr Garnys was asked to attend Maroubra CES on Saturday 25 May 1996 at 9 am for a recruitment session with Franklins. It is not clear exactly what he was told before attending the session, but Mr Garnys' evidence is that he telephoned Franklins beforehand to inquire about the recruitment process, as a result of which he knew he would have to complete and hand in an application form. He also had some knowledge of what was likely to be involved as a result of having previously applied for employment with Franklins in about September 1995 (A3 – Franklins' letter of 13 October 1995).
The Tribunal accepts Mr Garnys' evidence that on the morning of Saturday 25 May, he telephoned the Oxford Square Medical Centre shortly after 9am to try and make an appointment to see a doctor. Mr Garnys sought to obtain prescriptions for the dermatitis which he suffers on his hands, and for an ear infection, and he sought to obtain advice about an ingrowing toenail. He was unable to secure an appointment but was told to come in later and the Centre would try and fit him in. He said he would go in between 11am and 12 noon.
Mr Garnys then went to the Maroubra CES, arriving there between 9.20 and 9.30am. He completed a Franklins "Application for Employment" (A2 –T10) which he handed to Linda Hamill, an employee of Franklins who was coordinating the recruitment drive. According to Ms Hamill, Mr Garnys said he could not stay for an interview because he had a doctor's appointment. Ms Hamill advised him that he needed to attend an interview in order to be considered for a position. He declined an invitation to return for an interview later, in the afternoon (A3 – Statement by Ms Hamill of 16 April 1997).
In completing the Franklins "Application for Employment", Mr Garnys did not detail his employment record as the form asked him to do. Instead, he wrote "unemployed with CES Maroubra" (A2 – T10). And instead of giving the name of at least two referees, he wrote the name and telephone number of his Case Manager, Tanya. Mr Garnys' evidence was that he did not want to reveal that he had been unemployed since about 1980, and because of this, he had no recent employers who could act as referees.
Mr Garnys' evidence, which the Tribunal accepts, was that he waited at Maroubra CES from about 9.30 am until 10.45 am. There is no direct evidence to contradict this except a general statement from Ms Hamill (A3 – statement of Ms Hamill of 16 April 1997) that the application process involved attending a 30 minute video information session and 15 minute individual interview which, as a result of the team of up to 20 interviewers conducting interviews, meant that most applicants should have completed the process in not more than an hour. It is not clear why Mr Garnys did not attend an information session since Ms Hamill's evidence (A1 – transcript p5) was that these sessions were run every 30 minutes.
Mr Garnys said that he became impatient with waiting because he wanted to attend the Oxford Square Medical Centre between 11am and 12 noon as he had told them he would, in the hope of their fitting him in with an appointment to see a doctor. Mr Garnys had cycled from his home to the CES so that he could then cycle on to Oxford Square – a ride of about 45 minutes. He also said that cycling was less painful than walking which involved bending his toe, in which he had an ingrowing toenail.
Mr Garnys handed his Franklins "Application for Employment" to Ms Hamill. He said that he asked Ms Hamill to ensure that his application was forwarded for consideration as he was aware that a second round of interviews would be held to select those to whom job offers would be made. Ms Hamill informed him that he needed to attend a first interview in order to be further considered for a position and invited him to come back later that afternoon. Mr Garnys declined.
Mr Garnys attended the Oxford Square Medical Centre later that morning. The Tribunal notes the written statement by Ms D. Downey, the Practice Manager, dated 4 November 1998 (R2) to this affect. It is unfortunate that this statement has not been tested in cross-examination because it is clear that it was written at Mr Garnys' request and there is no indication of whether Ms Downey had any personal recollection of the course of events on the morning of 25 May 1996. In the absence of any contradictory evidence, the Tribunal accepts the evidence as to Mr Garnys attending the Medical Centre, notes that he was unable to see a doctor because the Centre was busy, and that he returned to the Centre for an appointment a few days later. The Tribunal also notes the unsatisfactory evidence from the Medical Centre's records as to Mr Garnys' attendances at the Medical Centre. In June 1997, an unidentified person from the Centre, in reply to a notice from the Department of Social Security, responded that Mr Garnys had not attended the Centre since 1 August 1995 (A3 – Response to DSS letter of 12 June 1997). However, Mr Garnys gave evidence of problems with the Centre's computer records, in particular as a result of confusion over the use of his Lithuanian first name Vylius rather than his adopted name John.
The Tribunal finds that Mr Garnys suffers from longstanding and chronic dermatitis affecting his hands. According to Dr Cindy Pan's medical certificate of 12 July 1995 (R1), he should "avoid contact with newsprint or dust or grease/solvents" which Mr Garnys said irritated the skin. Dr Pan's medical certificate of 19 November 1999 states Mr Garnys is "unable to work with chemicals/dust/solvents" (R3). Mr Garnys treats this condition with Betnovate 1/5 cream (A3 – Packaging for Betnovate cream, and R4).
The Tribunal also accepts Mr Garnys' evidence that he suffered from an ingrowing toenail which caused an infection which, some weeks after the CES attendance, required hospital treatment, and that he suffers from ear infections.
In the light of the above facts, did Mr Garnys breach clause 1 of his CMA Agreement, in particular his obligation to do everything he can to get a job? Mr Garnys telephoned Franklins to find out about the interview, he attended as requested on 25 May 1996, albeit 30 minutes late, and completed the Franklins "Application for Employment". The Applicant submits that Mr Garnys did not complete the Application properly and should have stayed for an interview as he was asked to do. It can, therefore, be argued that a breach occurred.
Did a breach of clause 2:II also occur? Did Mr Garnys "apply for all positions where appropriate" as he was obliged to do? He certainly completed and lodged a Franklins "Application for Employment" although, as already mentioned, the Applicant submits that Mr Garnys did not complete the form properly and should have stayed for an interview. The Tribunal accepts that it can also be argued that a breach of clause 2:II occurred.
The approach outlined by Nicholson J in Walsh (supra), requires the Tribunal, once a failure to comply has been found, to consider whether the main reason for the failure to comply involved a matter within the person's control and, if not within the person's control whether the circumstances that prevented the person from complying were reasonably foreseeable.
In the Tribunal's view, the answer to these two questions could arguably be 'Yes'. The Tribunal has chosen not to explore these questions in any further depth because it is the fourth step, whether the person can show he or she is taking reasonable steps to comply with the Agreement, which is most important in Mr Garnys' case. Did Mr Garnys act reasonably in the light of the circumstances? On balance, the Tribunal is of the view that he did. His completion of the Franklins "Application for Employment" without detailing his previous employment and stating only the name of his Case Manager and her telephone number was reasonably explained by Mr Garnys by reference to his long period of unemployment and consequent lack of recent employer referees. That his conduct may have been ill-advised is another matter – he obviously would have benefited from counselling about this but in the absence of counselling or other advice, the Tribunal is unable to conclude that his conduct was unreasonable, especially in the context of his expressed belief that Franklins already had information about him from his previous application for employment in September 1995.
Secondly, what view should be taken of Mr Garnys' failure to stay for the interview? The Tribunal has found that he was present at Marourbra CES that morning for approximately one and a quarter hours. It is not clear why he was not asked to watch the video information presentation. The Tribunal acknowledges that a person might, not unreasonably, become impatient after that period of time if the person had made some other commitment which was imminent.
Mr Garnys had committed himself to attending Oxford Square Medical Centre between 11am and 12 noon. This involved a bicycle ride of 45 minutes, which would mean that if he left Maroubra CES at 10.45am, he would arrive at the Medical Centre at 11.30am. He hoped the Centre could fit him in with an appointment to see a doctor – it was not unreasonable, given his medical conditions, that he should wish to do so, given that the Medical Centre only operated limited hours on Saturday (until 2.30pm) and was, presumably, shut on Sunday, so that he would otherwise have to wait until at least Monday for an appointment.
Mr Garnys' perception of the value of remaining for an interview or returning later, in the afternoon, might also, not unreasonably, be affected by the rejection of his previous job application to Franklins in October 1995.
The above leads the Tribunal to conclude that in the particular circumstances of Mr Garnys' case, it is satisfied that Mr Garnys took reasonable steps to comply with the terms of his CMA Agreement. He therefore remained qualified for newstart allowance under s45(5) of the ES Act and there were no grounds on which the Applicant was justified in cancelling or suspending payment. The Tribunal therefore concludes that the SSAT decision made on 11 November 1996 should be affirmed.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of R P Handley, Member and Rear Admiral Horton, AO, Member.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  30 June 2000
Date of Decision  13 September 2000
Solicitor for the Applicant         Greg Peek

Solicitor for the Respondent Sandra Koller