Gregory and Secretary, Department of Employment and Workplace Relations
[2006] AATA 139
•20 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 139
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/263
GENERAL ADMINISTRATIVE DIVISION ) Re BARRY GREGORY Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date20 February 2006
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes a decision that the applicant did not breach the Activity Test.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – Activity Test breach – what constitutes an offer of employment – was there a refusal of an offer – decision set aside
Social Security Act 1991 ss 593, 601(1), 601(1A), 601(2A), 630, 644AA
Moralde and Secretary, Department of Family and Community Services [2005] AATA 159
REASONS FOR DECISION
20 February 2006 Senior Member L Hastwell 1. On 1 March 2005 a decision was made to impose a 24 percent rate reduction Activity Test breach on Mr Barry Gregory (the applicant). The applicant applied for review of that decision to the Social Security Appeals Tribunal (the SSAT), and on 30 August 2005 the SSAT decided to affirm the decision under review. The applicant now seeks a further review of that decision to this Tribunal.
background
2. The applicant was born on 1 September 1958. He has been a recipient of Newstart Allowance since May 1998.
3. The applicant was asked to go to a job interview by his job network provider on 28 February 2005. He attended that interview. It was Centrelink’s view that his conduct at the interview was unsatisfactory and amounted to a breach of the Activity Test. The applicant disputes that his conduct amounts to a breach of the Activity Test.
relevant legislation
4. Section 593 of the Social Security Act 1991 (the Act) provides that to be eligible for Newstart Allowance a person must, inter alia, satisfy the Activity Test.
Section 601(1) of the Act provides as follows:
“601(1) Subject to subsections (1A) and (3), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:
(a) actively seeking; and
(b) willing to undertake;
paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.”
Section 601(1A) of the Act provides:
“601(1A) The Secretary may notify a person (other than a person who is not required to satisfy the activity test) who is receiving a newstart allowance that the person must take reasonable steps to apply for a particular number of advertised job vacancies in the period specified in the notice."
5. Whether work is unsuitable is defined in s 601(2A) of the Act. The only relevant part of that section for the Tribunal to consider in the context of this case is as follows:
“601(2A)Subject to subsections (2AA) and (2AB), for the purposes of subsection (1) and subparagraph (2)(a)(i), particular paid work is unsuitable for a person if and only if, in the Secretary’s opinion:
…
(b)it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; or
…
(j)for any other reason, the work is unsuitable for the person.”
Section 630 of the Act provides:
“630(1)If a person has refused or failed, without reasonable excuse, to accept a suitable offer of employment (the failure), a newstart allowance is not payable to the person.
630(2)If a newstart allowance becomes payable to the person after the time it ceases to be payable under subsection (1), then:
(a)if the failure is the person’s first or second activity test breach in the 2 years immediately before the day after the failure—an activity test breach rate reduction period applies to the person; or
(b)if the failure is the person’s third or subsequent activity test breach in the 2 years immediately before the day after the failure—an activity test non-payment period applies to the person.”
6. Section 644AA(1) sets out the period of the breach in this case. There is no dispute that the correct breach period was calculated. It is also common ground that if there has been a breach it is the applicant’s second breach of the Activity Test.
issues
7. The issues for the Tribunal to determine in this case are:
·whether the applicant refused to accept an offer of employment;
·if so, whether it was suitable employment; and
·if so, whether such refusal constituted an Activity Test breach.
the hearing
8. The applicant represented himself at the hearing. The T documents were received into evidence as were other exhibits which will be referred to where relevant. The respondent (the Department) called one witness, Mr Shane McFarlane, Manager of Truckwash Australia Pty Ltd, to give evidence.
9. The applicant’s evidence was that he had been a member of a number of job network providers over the years and the incident in question occurred some 2 months after he had commenced using Jobs Statewide at Salisbury as his job network provider. He had commenced a three week job search training programme with them in February 2005, and it was while he was undertaking this programme that the alleged breach of the Activity Test occurred.
10. He recounted that he was in the waiting room of Jobs Statewide, Salisbury, on 25 February 2005, waiting to see his employment consultant, when a woman by the name of Dorina approached him and handed him a job referral to attend a job interview with Truckwash Australia. The piece of paper that he was handed is contained at Exhibit A1/B6. The applicant claims that Dorina told him he would be “on a breach” if he did not take the job. She went out of the room and then returned briefly to tell him that he need not bother to take his resume to the interview as the interviewer did not wish to see a resume. She told him nothing more about the position.
11. When the applicant attended at the interview he observed a noisy and busy environment where large trucks were being washed. His account of the interview is contained at T10/55, and he confirmed that account in his evidence. He said that the interviewer took no notes and he estimated that the interview lasted less than a minute.
12. Upon being advised what the duties of the position would involve, the applicant made the comment that he had been unaware that the job involved working in a wet area and he was not sure that he wanted to wash trucks. The interviewer immediately rose to his feet and terminated the interview. He ushered the applicant to the door and thanked him for being honest with him. On the applicant’s account, it was as they walked out of the door that he made the comment to the interviewer (Mr McFarlane) that he was a computer scientist.
13. The applicant described his subsequent interview on 1 March 2005 with Centrelink as being quite intimidating. The people that interviewed him were, on his account, very stern in their presentation, and they made it quite clear to him that he was to be breached, and that he was not able to appeal on the grounds that the job was unsuitable. He said that he was almost in tears by the time this interview ended.
14. The applicant had been assaulted when he was 21 years of age and suffered what he described as “severe facial injuries”. As a result of this he has a bony protrusion in his sinuses and suffers sinusitis in winter.
15. When he sought a review of the original decision to the Authorised Review Officer (ARO), the applicant provided the ARO with a Benson Radiology report (Exhibit A1/B5) which confirmed a sinus condition. Despite having this report in his possession, the ARO noted in his decision that no medical evidence was provided when in fact it had been. The applicant also expressed concern that the ARO had relied on hearsay evidence from Mr McFarlane’s employer as to what had occurred at the interview. He felt that no one appeared willing to accept his version of events. He told the Tribunal that if on his version of events the Tribunal still found there had been a breach then he would accept that decision.
16. The applicant was adamant that at no time did he know how many hours were involved in the job or what it paid, and that at no stage was he given any description of what the job involved until he actually got to the truck wash. He pointed out that he had accepted what he described as “crappy” jobs before, and he said that when he expressed concerns about working in a cold and wet environment the interview was hastily terminated.
17. He asserted that he was never offered a position and he did not refuse a job. He said it was not suitable employment for him in any event because of the sinus condition from which he suffered.
18. Mr Shane McFarlane, the Manager of Truckwash Australia gave evidence. He said that on the day in question he had a busy day and he had already interviewed two candidates for the job. Neither had been interested in the position. The applicant was the third person to be interviewed. Mr McFarlane said that he had a clear recall of the applicant because he was noticeably neat and tidy, and was wearing a tie. In his experience this was uncommon for interviewees for this position. He described the applicant as being straightforward with him and he said that when he told the applicant what was involved in the job and that it would be wet, dirty and cold, his recall was that the applicant said to him that he did not work in water and that he was a computer scientist. As soon as that comment was made by the applicant, Mr McFarlane thanked him and terminated the interview. He confirmed that the applicant told him that he had not been informed by Jobs Statewide as to what was involved in the job. He expressed appreciation that the applicant was so straightforward with him. He said that he has trouble getting people to work and most people work for only a few weeks or a few months in any event.
19. All three people that he had interviewed that day had been sent by Jobs Statewide at Salisbury and none of them had any prior understanding of what was involved in the job. The previous two had not been interested in the job.
20. Mr McFarlane said that the applicant did not “refuse” the job as such. He confirmed that no job offer was made. He agreed that he did not take notes, that he was reliant on his memory and that the interview took perhaps one to two minutes. He has a standard set of questions that he asks all interviewees.
21. Mr McFarlane confirmed that he was not there the day that Centrelink telephoned to find out what happened and they only spoke to his employer.
findings of fact
22. The applicant has been in receipt of Newstart Allowance since the late 1990s.
23. The applicant had been using Jobs Statewide at Salisbury as his job network provider for two months before his interview on 28 February 2005.
24. He had been specifically looking for work in the information technology (IT) field during that period as he has qualifications of an Advanced Certificate in Computing (1992) from the Department of Employment and Technical and Further Education of South Australia and an Associate Diploma in Computer and Information Science (1995) from the University of South Australia. He also does voluntary work in the community teaching computing workshops.
25. In consultation with his employment consultant at Jobs Statewide, Salisbury, he had prepared a resume. He had called on various businesses involved in the IT industry to see if any jobs were available and he had also written to a number of businesses operating in the IT field to see if they had any job vacancies.
26. In February 2005 the applicant did a three week job search training programme at Jobs Statewide, Salisbury. This was not a vocational programme.
27. The applicant suffers from minor sinus problems which are exacerbated by the cold. He sustained facial injuries at the age of 21 years which have left him with residual problems. He suffers sinusitis in cold weather in particular.
28. The applicant was given a job referral to Truckwash Australia by Dorina at Jobs Statewide, Salisbury, on 25 February 2005. He was given no indication of the nature of the job that he was going to and he had not previously met Dorina.
29. The applicant attended an interview at Truckwash Australia on 28 February 2005. He was dressed neatly for the interview and gave no indication to the interviewer that he was other than sincere in his presentation at the interview.
30. The interviewer was Mr Shane McFarlane. Mr McFarlane prematurely ended the interview when the applicant made a comment that he was not sure that he wanted to wash trucks. The interview lasted somewhere between one and two minutes at the most. This was the third interview that Mr McFarlane had carried out that day. Neither of the previous two interviewees had been interested in the position.
31. Mr McFarlane was frustrated by the fact that none of the three interviewees that day had any idea of what the job was about before they came to see him, and he felt that his time was being wasted by Jobs Statewide in not properly informing the interviewees about the prospective position. He subsequently complained to Jobs Statewide about this aspect of their referrals.
32. At no stage was an offer of employment made to the applicant by Truckwash Australia. There was no discussion of hours or rates of pay.
33. The duties of employment that the applicant would be required to undertake if employed by Truckwash Australia would involve working almost constantly in water and being wet in both summer and winter.
34. Jobs Statewide had been focussing on finding the applicant work in the IT industry as is evidenced by his prior contacts through cold canvassing IT businesses and his letter of application contained in Exhibit A1/B4.
application of the law
35. The Department’s case has centred around the argument that the applicant has failed to satisfy the Activity Test in that he refused an offer of employment by, in the Department’s words, “sabotaging” an interview where he was likely to receive an offer of employment.
36. The applicant’s position is that he was at no stage offered employment and that if it had been offered it was unsuitable because of his medical problem. He has further raised the issue that at that time he was undertaking a job search training programme and he submitted that this was vocational training.
37. The applicant has been distressed by what he perceives to be poor treatment at the hands of Centrelink. He expressed considerable dissatisfaction with the way in which his job network provider had dealt with the situation. He presented as a credible witness, and the Tribunal had no reason to disbelieve his account of the events that led to the breach.
38. It is common ground that if a breach did occur, it was a second breach and that the accurate percentage reduction has been applied with respect to his entitlement.
39. The first issue to determine is whether there was a refusal of an offer of employment. If the Tribunal finds that there was a refusal, then the Tribunal must go on to determine whether it was suitable employment, or alternatively whether the applicant was exempt at the time because he was undergoing vocational training.
40. The Department referred to Moralde and Secretary, Department of Family and Community Services [2005] AATA 159 in support of its argument. This was a case where the applicant had actively refused offers of employment because of a back problem and a nose problem. The Tribunal cannot see that that case is directly in point as in that case a clear offer of employment was made.
41. Section 630(1) of the Act provides that if a person has refused or failed, without reasonable excuse, to accept a suitable offer of employment (the failure), then Newstart Allowance is not payable to the person.
42. Was an offer of employment made and refused by the applicant in this case?
43. The word “offer” is defined in the New Shorter Oxford English Dictionary as follows:
“An act of offering something for acceptance or refusal; an expression of intention or willingness to give or do something if desired; a proposal; an invitation.”
44. On the evidence that is available even Mr McFarlane agreed that no offer as such was made to the applicant. Nor was anything said on either witness’s account that would lead the applicant to believe that there was an intention to make an offer. The interview hardly started before it was completed when the interviewer cut short the discussion. The Department has operated on the assumption throughout that an offer would have been made had the applicant not made the comment about not working in water. There is no evidence to support this assumption. Had the interview continued, other factors may have emerged that may have lead the interviewer to decide that the applicant was not a suitable candidate for the position.
45. The Tribunal is also satisfied that the comment made by the applicant that resulted in the interview being terminated was an impromptu and honest comment. The applicant had no idea what this job was about when he went for the interview and given that the whole emphasis of his job searches with that particular job network provider had been focused on a position in the IT industry he assumed it may have been an office style position he was being referred to. The Tribunal is satisfied that he did not deliberately set out to sabotage the interview.
46. In the circumstances the Tribunal could not construe what occurred in the course of the interview on 28 February 2005 as being an offer of employment that the applicant refused or failed to accept.
47. Mr McFarlane was very frustrated with Jobs Statewide by the time he interviewed his third applicant for a position that day, and he prematurely ended the interview without making any offer of employment as soon as the applicant made the comment that he did not like working in water.
48. As a result of subsequent communications between the applicant and Truckwash Australia, Mr McFarlane formed a negative view of the applicant as being a “dole bludger”. The applicant was trying to correct the record of what had actually occurred at the interview and this negative perception of the applicant possibly filtered back to Job Statewide and to the ARO by way of hearsay information provided by Mr McFarlane’s employer who had no direct involvement in the interview at all.
49. The Tribunal does not need to consider issues of unsuitability of employment as it is satisfied that there was not a refusal of an offer of employment in this instance.
50. The Tribunal accepts that situations may arise where a person may actively sabotage interviews to ensure that a job offer was not made, however, the Tribunal does not accept that is what has occurred in this case. The Tribunal also comments that the legislation is sufficiently broad to cover such a situation. A person who regularly “sabotaged” interviews in an attempt to remain a benefit recipient, would fail to fulfil the requirements set out in s 601(1) of the Act.
51. The Tribunal sets aside the decision under review and substitutes a decision that there was no breach of the Activity Test by the applicant during the interview that took place between him and Mr McFarlane at Truckwash Australia on 28 February 2005.
52. The matter is remitted back to the Department to calculate any back payment of benefit due to the applicant in the circumstances.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: .............J Coulthard..........................................
AssociateDate of Hearing 3 February 2006
Date of Decision 20 February 2006
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr C Goldsworthy
Solicitor for the Respondent Centrelink Legal Services Branch
1
1
0