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

[2008] AATA 101

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 101

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3800

GENERAL ADMINISTRATIVE DIVISION		)
Re		MEHRINAZ GHORBANPOUR

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member

Date8 February 2008

PlaceSydney

Decision The decision under review is affirmed.  

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

Ms Robin Hunt
  Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – Newstart allowance – applicant committed Newstart participation failure –applicant did not have a reasonable excuse for the failure – decision affirmed.

Social Security Act 1991, ss 593, 601, 624, 626, 629 and 630.

Guide to Social Security Law

REASONS FOR DECISION

8 February 2008 Ms Robin Hunt, Senior Member   

summary

1.      Mrs Mehri Ghorbanpour was receiving newstart allowance and looking for work shortly before her dispute with Centrelink occurred and led to the application before me. She commenced work with a new employer with whom she was placed by an agency. Unfortunately, she left this job voluntarily and Centrelink imposed an eight week non-payment period on Mrs Ghorbanpour. An authorised review officer of Centrelink affirmed the original decision of Centrelink and the Social Security Appeals Tribunal (SSAT) affirmed the decision of the authorised review officer. Mrs Ghorbanpour applied to this tribunal to review the decision. I have decided that the decision to apply the non-payment period was correct.  My reasons are set out below.

issue

2.      I have to decide whether imposing an eight week non-payment period of newstart allowance to Mrs Ghorbanpour was correct. My decision depends on whether I find Mrs Ghorbanpour committed a ‘newstart participation failure’ before the original decision. If I find she did fail to meet her obligations, the next question is whether she had a reasonable excuse. 

consideration and findings

3. Mrs Ghorbanpour started receiving newstart allowance on 9 May 2005. One of the requirements for receiving the allowance is to meet the activity test. Section 629 of the Social Security Act 1991 (the Act) provides that where there has been a failure to meet the activity test, newstart allowance will not be payable for eight weeks in accordance with the starting time set out in section 630.

4.      Mrs Ghorbanpour does not deny that, on 27 October 2006, she voluntarily left the job an employment agency had found for her as part of her newstart agreement. She furnished a written statement and gave oral evidence to the tribunal that she could not cope with the work and felt stressed so she left. She wishes now that she had given notice. Mrs Ghorbanpour’s mother also furnished a written statement confirming that her daughter was stressed by the work involved and saddened by the death of her grandfather and left her job. Her mother said she agreed with her daughter’s decision to leave.

5.      On 14 December 2006, Centrelink applied an eight week non-payment period to Mrs Ghorbanpour as a result of her leaving the job, holding that this act was a failure to meet the activity test requirements. The decision was based on an assessment that voluntarily leaving the job was a newstart participation failure. Her action resulted in her becoming unemployed. Centrelink still contends that Mrs Ghorbanpour committed a newstart participation failure when she voluntarily left the position found for her by the employment agency.

6.      Under the legislative provisions, a person commits a newstart participation failure in various ways such as by failing to attend a job interview. Under subsection 629(1)(b), being unemployed due, either directly or indirectly, to a voluntary act of the person, is also such a failure. Centrelink received a report that Mrs Ghorbanpour had not participated as expected in her newstart job placement and investigated what had occurred before making the decision to penalise her by stopping payments for eight weeks.

7. Mrs Ghorbanpour admits that she did leave her job voluntarily but contends that her action was reasonable in the circumstances. Section 629 deals with this type of situation. Subsection 629(1)(b) sets out:

(1) A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:

…

(b)  is unemployed due, either directly or indirectly, to a voluntary act of the person; …

Under subsection 629(4) of the Act, paragraph (1)(b) does not apply if the Secretary is satisfied that the person's voluntary act was reasonable.

8.      Mrs Ghorbanpour said it was true that she had a poor work history but this was partly due to bad luck. She told me she had worked as a receptionist for a real estate agent for a short time but lost that job because the market was falling and her employer could not keep her on. She later worked in a casual part time position that involved administrative and receptionist duties. She had enjoyed both these jobs but had tried to get full time work. When she left the job which caused her to fail the activity test, she had returned to the part time job for a while and was now engaged in home duties as she had given birth to a baby.

9.        Superficially, Mrs Ghorbanpour’s position, which she filled as part of the activity test requirements, seems similar to her former part time job as a receptionist and general assistant. However, Mrs Ghorbanpour explained that when she started the full time job, on 11 September 2006, she had four of five days training from the person who previously filled her position but that she still had problems. Her trainer, a Mrs Jones, left an instruction manual for her about the systems but Mrs Ghorbanpour did not understand some of these instructions. When Mrs Jones left, taking maternity leave, she invited Mrs Ghorbanpour to email her if she had questions and Mrs Ghorbanpour did email her regularly. Mrs Ghorbanpour said Mrs Jones at first replied promptly to her questions but started to take longer as time went by. At one point, Mrs Jones came in and cleared up the outstanding work that Mrs Ghorbanpour had not attended to.

10.     Mrs Ghorbanpour gave further evidence that she continued to have problems understanding what she was supposed to do with some of the paperwork and how to enter it on the system. She said, if she did not know what to do and Mrs Jones did not get back to her, she left the paperwork or entry rather than make a mistake.  As the postponed work built up, she became more and more stressed about the situation. At the same time, she was upset about the illness of her grandfather who died not long afterwards.  Mrs Ghorbanpour agreed that she was often tired and that this may have contributed to her lacking concentration or understanding the complexities of the job. She said she was dieting and trying to lose weight and this may have made her tired but that she had been dieting when she performed effectively in earlier jobs. She also agreed that she did not mix much with the staff but said she did prepare their morning tea and lunch and did eat morning tea with them. She also said she asked two other people for help but only Mrs Jones could answer most of her questions.

11.     Centrelink records show that, after Mrs Ghorbanpour left the job without notice, they contacted Mrs Jones and asked her to respond to questions about what had occurred. Mrs Jones confirmed in written answers that Mrs Ghorbanpour contacted her frequently and said that two other employees could have provided Mrs Ghorbanpour with some assistance. These were the same two people Mrs Ghorbanpour told the tribunal she did get some help from but she said they could not answer most of her queries. Although there was a suggestion in a report from the job provider that Mrs Ghorbanpour was frequently late for work, I note that Mrs Jones stated that her work attendance was satisfactory. Mrs Ghorbanpour said she was usually on time but had trouble with her car one day and sometimes left work early.

12.     Mrs Jones criticised the work performance of Mrs Ghorbanpour, saying it was unsatisfactory. This is not surprising as Mrs Ghorbanpour herself says she left because she could not perform some of the tasks her job required and she was very stressed about it.

13.     Despite these difficulties, the employer did not ask Mrs Ghorbanpour to leave. Mrs Ghorbanpour took matters in to her own hands. Her mother’s statement suggests she did not give notice because that would have meant she had to work for a few more days. Mrs Ghorbanpour gave oral evidence that she could not cope any longer. She also gave evidence she was uncomfortable about asking for help especially when Mrs Jones took a long time to get back to her.

14.     I believe the account of Mrs Ghorbanpour but the important question is whether her conduct in leaving the job voluntarily was reasonable. What is ‘reasonable’ for the purposes of section 624 is set out later in that provision, as follows:

(2A)  The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing a newstart participation failure.

(2B)  To avoid doubt, a determination under subsection (2A) does not limit the matters that the Secretary may take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing the newstart participation failure referred to in subsection (1).

…

15.     The Secretary also has provided guidelines in the Guide to Social Security Law, particularly at paragraph 3.2.13.30. This states that “the meaning of the term ‘reasonable excuse’ is discretionary but in basic terms the excuse must be one that would seem plausible and satisfactory to a member of the public”. I also note that the Collin’s dictionary defines ‘reasonable’ as ‘sensible, not excessive and logical’ and the Macquarie dictionary defines it similarly. In addition, I note that pursuant to subsection (2B), I am not limited as to matters that I can take into account.

16.     The above guidelines indicate the sort of matters that may be taken into account in forming an opinion about reasonable excuse. These include living on the streets, language barriers, illness, death of an immediate family member and being in gaol. It is apparent that these are very serious matters and that not being able to cope with a work system or work load is not of the same dimension.

17.     On the other hand, as I am not limited to the matters referred to in the guidelines, I have looked at all the surrounding circumstances. In forming my opinion about whether Mrs Ghorbanpour’s leaving her job was reasonable I note that she was upset by the imminent death of her grandfather and that she claimed she was unwell herself. However, Mrs Ghorbanpour does not suggest she had major health problems and she did not supply medical evidence of her health as requested by Centrelink. She gave oral evidence she was tired and would have seen her usual doctor about the reasons for this but he or she was overseas. I also accept that Mrs Ghorbanpour was having trouble meeting job expectations and was no doubt embarrassed and upset about this.

18. On balance, and accepting that Mrs Ghorbanpour was telling the truth about her experiences, I consider that her conduct was not reasonable because she could have discussed her problems with management before just deciding to go and she could have given notice that she intended to leave due to her difficulties. Therefore, I find that Mrs Ghorbanpour’s action in leaving her job voluntarily was not reasonable for the purposes of section 629 and that she has committed a newstart participation failure pursuant to subsection 624(1)(b). This means that newstart allowance was not payable for a period in accordance with sections 629 and 630. As Mrs Ghorbanpour did not have a reasonable excuse for leaving the job, I am satisfied that the consequence is that her newstart allowance is not payable for an eight week period pursuant to s 629(1)(b) of the Act. This means she should not receive payment for the period imposed by Centrelink, from 21 November 2006 to 15 January 2007.

decision

19.     The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt

Signed: [Talaishia Collis]
  Associate

Date/s of Hearing  5 February 2008      
Date of Decision  8 February 2008
Solicitor for the Applicant               Self-Represented Applicant            

Solicitor for the Respondent          Mr G Lozynsky – Centrelink Legal Services Branch