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

[2008] AATA 548

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 548

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4949

GENERAL ADMINISTRATIVE DIVISION		)
Re		JEFFREY FRANCIS GLEESON

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date27 June 2008  

PlaceBrisbane (heard in Warwick)

Decision The Tribunal affirms the decision under review.  

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

Deputy President

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – eight week non-payment period enforced – refusal to accept an offer of employment – question of whether the refusal was reasonable – reason for refusal found not to be reasonable – decision under review affirmed

Social Security Act 1991 – s 629

Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988

REASONS FOR DECISION

27 June 2008   Deputy President P E Hack SC    

Introduction

1.The issue in this case is whether the applicant, Mr Jeffrey Gleeson, had a reasonable excuse for refusing to accept a suitable offer of employment.

2.Mr Gleeson says that he did have such an excuse; the respondent, the Secretary of the Department of Education, Employment and Workplace Relations, says that Mr Gleeson had no such excuse and that, as a consequence of that refusal, Newstart allowance was not payable to Mr Gleeson for a period of 8 weeks.

Statutory Setting

3.Newstart allowance is payable to those who are unemployed and actively seeking employment. By virtue of s 629(1)(d) of the Social Security Act 1991 (the Act) Newstart allowance is not payable to a person for a period of 8 weeks if the person “has refused or failed, without reasonable excuse, to accept a suitable offer of employment”. Section 629(1A) of the Act permits the Secretary to determine, by legislative instrument, matters to be taken into account in deciding whether a person had a reasonable excuse, but that determination does not limit the matters that may be taken into account[1].

[1] See s 629(1B) of the Act.

4.The Secretary has made such a determination, the Social Security (Reasonable Excuse) (DEWR) Determination 2006, but none of the matters set out in it have any relevance to the present case.

Background

5.In December 2006 Mr Gleeson was unemployed and Mission Australia was his job network. On 5 December 2006 Mr Gleeson was referred by Mission Australia for an appointment with Mr Brian Bradshaw, the controlling mind of Brian Bradshaw Constructions Pty Ltd. There is controversy, as between Mr Gleeson and Mr Bradshaw, about the circumstances of that interview.

6.According to Mr Gleeson the interview took place at the Coachman’s Inn and centred upon the possibility of Mr Gleeson being employed by Mr Bradshaw’s company in the work that the company was undertaking at the Warwick Sewage Treatment Plant. Mr Gleeson says that he raised with Mr Bradshaw that he had “a few concerns” about working at the Sewage Treatment Plant. Mr Gleeson’s evidence was that he was concerned that the whole area where the work would be conducted was contaminated and that it had broken sewage pipes and the like such that there was a risk of contamination. In any event, according to Mr Gleeson, he agreed to start work the following Monday.

7.Then approximately an hour after the initial interview with Mr Bradshaw Mr Gleeson, having considered his concerns at some greater length, decided not to accept employment. He telephoned Mr Bradshaw’s mobile telephone number and told him in a fairly brief conversation that he was not happy being employed on the site for hygiene reasons and would not be accepting the job. Mr Bradshaw, he said, said words to the effect “no worries you’re not the first to be worried about that sort of thing”.

8.Mr Bradshaw has an entirely different version of the conversation. The Secretary advances this version as that had between Mr Gleeson and Mr Bradshaw. Mr Bradshaw does not profess to recall speaking to anybody by name but recalls that around this time he interviewed two people referred to him by Mission Employment. His statement gives a date for this event of 8 December 2006. The interview of which he speaks seems in many respects entirely different to that of which Mr Gleeson speaks. Mr Bradshaw says that the interview that he conducted took place at the work site at the Warwick Sewage Treatment Plant, that there were the two interviewees together with two persons from Mission Australia who took part in the interview and that a tour of the worksite was involved in the interview. His recollection is that both persons accepted employment with the company and agreed to commence work the following day.

9.The circumstances of the conversations recounted by Mr Gleeson and Mr Bradshaw are such that I am driven to conclude that they are not speaking of the same occasion. Mr Gleeson is a long time resident of Warwick and it seems unlikely that he would confuse the Sewage Treatment Plant with the Coachman’s Inn. Moreover it seems unlikely that he would confuse an interview involving just him and Mr Bradshaw with one involving another interviewee and two persons from Mission Australia. These are details that ordinarily would be remembered even if the detail of the conversation was lost. Mr Gleeson, whilst dogmatic, impressed me as a generally reliable witness and there seems no reason for me to reject his account of his initial interview with Mr Bradshaw.

10.It is what took place following the interview that is of some importance. According to Mr Bradshaw he was not contacted by the persons he had interviewed and the first inkling he had that the persons to whom he offered employment were declining those offers was when they did not attend the following day. He is nonetheless adamant that he can not recall any occasion when a potential employee has ever raised concerns about the hygiene of the worksites where Mr Bradshaw’s company performs its operations. Despite that, and as Mr Bradshaw fairly pointed out, the events in question took place some while ago and they were not of particular remark for him.

11.Because of the potential importance of establishing whether a subsequent telephone call was made by Mr Gleeson to Mr Bradshaw I requested Mr Flintoft, the representative of the Secretary, (and with the agreement of Mr Gleeson), to endeavour to obtain the relevant telephone records from Mr Gleeson’s telecommunications carrier. Those records have been obtained and they demonstrate that Mr Gleeson made three telephone calls to Mr Bradshaw’s telephone on 5 December 2006. That supports the account of events given by Mr Gleeson.

12.In the result I will proceed on the footing that Mr Gleeson’s account of his conversations with Mr Bradshaw are accurate, that is there was an initial interview where he had some concern about hygiene at the worksite, and that there was a subsequent telephone conversation in which he told Mr Bradshaw that he did not propose to start work because of hygiene reasons.

Discussion

13.Mr Bradshaw’s evidence was that the offer made was not unconditional. He said that his invariable practice with potential employees was to have them work on the basis of a trial for a couple of days and then, if both parties were happy, the employment arrangement would be formalised. Despite that it seems to me that I ought conclude that what was made in the present circumstance by Mr Bradshaw on behalf of his company was an offer of employment. There seems no reason to doubt that it was suitable employment. The question turns, as the argument for the parties accepted, on the question of whether Mr Gleeson had a reasonable excuse for not accepting the offer.

14.In Secretary, Department of Employment and Workplace Relations v Real[2] Kiefel J was called upon to consider a section of the Social Security (Administration) Act 1999 providing for the giving of a notice by the Secretary requiring a person to attend at a particular place for a particular purpose. Failure to comply with the notice could lead to the imposition of an administrative breach reduction period. However if the Secretary were satisfied that a person had a reasonable excuse for not complying with the requirement then the Secretary might determine that Newstart allowance was payable. Mr Flintoft for the Secretary submitted that her Honour’s approach to that legislation ought to be followed here. I accept that that is so. At paragraph [6] of the decision her Honour made the point that it is not whether the Tribunal considered that in all circumstances the person should be excused, it is whether the Tribunal was satisfied about the reason proffered which justified non-compliance with the notice. Her Honour went on to say[3],

“… The Tribunal was obliged to consider what the respondent said was the reason for his non attendance. It may be expected that this would involve his state of mind, but I do not think it is correct to frame the statutory enquiry by reference to it. It simply requires a consideration of the excuse put forward.”

[2] [2007] FCA 988.

[3]At paragraph [7]

15.The excuse put forward here is that Mr Gleeson had concerns for his health from the possibility of working on the site of the sewage plant. I am satisfied that Mr Gleeson had a view that there might be dangers to his personal hygiene from working at the site, however I am not satisfied that that view was reasonable because it was not an informed view. Mr Gleeson knew little more at the time of his refusal than that the workplace was at the sewage plant. He knew as well that it involved construction work. He does not suggest that anything told to him by Mr Bradshaw would involve any particular risk of contact, either directly or indirectly, with sewage material. He did not suggest that he had made any particular enquiry of Mr Bradshaw, nor that he had any earlier experiences in his life that would inform him of some danger in the work offered. The work is not of a type that would appear inherently dangerous.

16.It is not to the point that the Warwick Shire Council requires its workers in sewerage plants to have hepatitis injections. That is, no doubt, a prudent practice but these considerations did not inform Mr Gleeson’s decision.

17.It is not sufficient, in my view, for Mr Gleeson to have a view that the work offered might be dangerous; there needed to be a reasonable basis for holding that view. I am lead to conclude that whilst Mr Gleeson may have had the concerns that he articulated they were not reasonably based. It follows that in my view Mr Gleeson did not have a reasonable excuse for his failure to attend the offer of employment and that the 8 week non-payment period was properly imposed.

18.I would affirm the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ..............................[Sgd]..................................................
  Jacqueline Woods, Associate

Date of Hearing  21 April 2008
Date of last submissions          18 June 2008
Date of Decision  27 June 2008
The Applicant appeared in person assisted by his father           Mr B Gleeson
Solicitor for the Respondent     Departmental Advocate