Harb; Secretary, Department of Education, Employment and Workplace Relations and

[2008] AATA 1009

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2008] AATA 1009

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2208

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And MOHAMED HARB

Respondent

DECISION

Tribunal   Mrs Josephine Kelly, Senior Member

Date of decision                13 October 2008

Date of written reasons   7 November 2008

Place  Sydney

Decision

The decision of the Social Security Appeals Tribunal (SSAT) dated 11 April 2008 is set aside, and the decision of the Authorised Review Officer dated 29 January 2008 to impose the 8 week non-payment period from 1 February 2008 to 27 March 2008 is affirmed, because Mr Harb was unemployed due to his voluntary act on 12 November 2007, pursuant s 629(1)(b) of the Social Security Act 1991.

The Applicant's request for an order about the operation or implementation of the SSAT's decision pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975  is refused.

…………[sgd].………..
Mrs Josephine Kelly
Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – Non-payment period imposed – Respondent walked out of job interview - Whether unemployed directly due to voluntary act – Held job available if respondent wanted it –  Unemployed due directly to voluntary act - SSAT decision set aside – Decision substituted eight week non-payment imposed – Stay refused

Administrative Appeals Tribunal Act 1975, ss 41, 43

Social Security Act 1991, ss 539, 601, 605, 624, 629

Social Security (Administration) Act 1999, s 196

WRITTEN REASONS FOR ORAL DECISION

7 November 2008 Mrs Josephine Kelly, Senior Member      

1. At the conclusion of the hearing of this matter in Sydney, the terms of the decision were given and a summary of the reasons for that decision were stated orally. The Applicant requested a statement in writing of my reasons for decision, pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), which are set out below.

INTRODUCTION

2.        Mr Mohamed Harb was granted newstart allowance in April 2004.  On 25 June 2007, Mr Harb signed an Activity Agreement with MTC Work Solutions (MTC), a community work coordinator for the Job Network Member, IPC Employment (IPC). The Agreement required him to undertake job searches, attend interviews organised by MTC and IPC, and to apply for suitable jobs.

3.        On 12 November 2007 he attended a job interview with Cleana Service Pty Limited (Cleana Service) at Marrickville which had been arranged by IPC.   IPC lodged a Participation Report which stated that Mr Harb had been asked to try the job while he was there, which he did. The report noted:

Mohamed filled half the machine with blankets and then went up to employer and said that this was not for him and left. Employer said that it was very obvious Mohamed was not interested.

4.        On 24 November 2007, Centrelink decided to impose an eight week non-payment period  because Mr Harb had failed, without reasonable excuse, to  accept a suitable offer of employment from Cleana Service.  Mr Harb sought review by the Social Security Appeals Tribunal (SSAT) and was partially successful. On 12 November 2007, the SSAT set aside the Centrelink Authorised Review Officer’s (ARO’s) decision, which had affirmed the original decision, and determined that Mr Harb had not committed a ‘serious participation failure’ because there was no offer of employment made, but that he had committed a lesser ‘participation failure'.  The consequence was that the eight week non-payment period was not imposed. The Secretary, Department of Education, Employment and Workplace Relations (the Secretary) applied for review of the SSAT’s decision.

5. I have decided that Mr Harb was unemployed, due, directly, to his voluntary action of walking out of the premises during the middle of his trial or interview, and telling the potential employer that the job was not for him. In doing so Mr Harb committed a serious participation failure in contravention of s 629(1)(b) of the Act. The eight week non-payment period was properly imposed. It follows that the ARO’s decision to impose an eight week non-payment period is correct and the decision of the SSAT should be set aside.

ISSUES

6. The issue is whether Mr Harb breached section 629 of the Social Security Act 1991 (the Act) on 12 November 2007 so that newstart allowance was not payable to him for an eight week period.  The questions arising from that proposition are:

(a) Was Mr Harb unemployed due, either directly or indirectly, to his voluntary act? (s 629(1)(b) of the Act); or

(b) Did Mr Harb refuse or fail, without reasonable excuse, to accept a suitable offer of employment? (s 629(1)(c) of the Act)

MR HARB’S POSITION

7.        Mr Harb represented himself at the hearing.  He said that the premises occupied by Cleana Service were too small, and therefore he left. He said that he stayed 15 or 20 minutes.  The manager told him how to open and close a machine.    He denied telling the manager that it was too busy for him.  

8.        Although he did not express it directly, I assumed that he wished to maintain the more favourable decision made by the SSAT that an offer of employment had not been made to him by Cleana Service and that by walking out of the appointment on 12 November 2007 he had breached his Activity Agreement, and thereby committed a participation failure. Consequently, no non-payment period should be imposed.

CONSIDERATION

9. To qualify for newstart allowance a person may be required to satisfy an activity test: s 593(1)(b) of the Act. To satisfy an activity test a person must be actively seeking, and willing to undertake suitable paid work: s 601 of the Act. A person receiving newstart allowance may be required to enter into a newstart activity agreement: s 605(1) of the Act.

10. Section 624 of the Act sets out the circumstances in which a person may be regarded as having committed a newstart participation failure. One of those failures is the failure to comply with the terms of a Newstart Activity Agreement (s 624(1)(d) of the Act).

11. Section 629 of the Act provides that newstart allowance is not payable for 8 weeks if there is a repeated or more serious failure. It provides, relevantly:

(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:

(a)  commits a newstart participation failure (the repeated failure), having committed newstart participation failures (the earlier failures) on 2 or more other occasions during the period of 12 months preceding that failure; or

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

…

(d)  has refused or failed, without reasonable excuse, to accept a suitable offer of employment; or

…

12.      Following is a longer extract from the Participation Report completed by IPC on 12 November 2007 recorded:

Rang employer and advised that the first thing Mohamed asked at interview was how much was the wage. When the employer told him it was casual rate $16.20 per hour Mohamed wanted to know how much he would get in his hand.. The employer then took him round to see the work area and he asked Mohamed to stay and do a trial to which Mohamed replied that he had other things to do today but he would come in tomorrow. The employer said that since he was there he might as well do a trial for at least an hour. Mohamed filled half the machine with blankets and then went up to employer and said that this was not for him and left. Employer said that it was very obvious Mohamed was not interested.

13. As well as hearing evidence from Mr Harb, Mr Stathis, the manager of Cleana Service, gave evidence by telephone. A questionnaire he had filled out in response to a notice under s 196 of the Social Security (Administration) Act 1999 was also before me.

14.      During cross-examination Mr Harb agreed that he walked away from the interview because he did not like the job. He also agreed that he was aware that he could have had a job if he had decided to stay on to complete the trial. He accepted that there was a job there if he wanted it.  He agreed that he was physically capable of doing the job. 

15.      I accept the evidence Mr Stathis gave.  I find that Mr Harb gave his best recollection of what happened on that occasion, however I found his recollection vague in some respects, and therefore prefer the evidence of Mr Stathis to the extent that there was disagreement about what happened.  The points of disagreement do not affect my decision in any event.

16.      Mr Stathis said that on the day Mr Harb attended his workplace, there was a job available.   When Mr Harb arrived, Mr Stathis gave him a full description of the job, and he showed Mr Harb the washroom and laundry, and the duties he would be performing. He asked Mr Harb to stay for 1 or 2 hours. Mr Harb asked him how much he would get per hour and he told Mr Harb the rates. He told Mr Harb he could give the job a go and see if he liked the job. Mr Harb agreed to that.

17.      Mr Stathis left Mr Harb under the supervision of one of the laundromat’s leading hands, who showed Mr Harb how to load and unload the washing machine. After 20 minutes Mr Harb came back to Mr Stathis and said this job is not suitable for me and then left.

18.      Mr Stathis confirmed that he offered Mr Harb the job if he was willing to accept it and stay for the trial and that he would have started him the following morning. As Mr Stathis put it: “The job was there for him to take.” He would definitely have employed Mr Harb if he had accepted the job, as Mr Harb was a “strong, solid, boy.” Mr Stathis has other employees in that washroom half the size of Mr Harb who perform the duties. Mr Stathis said that in 90% of cases he employs those who attend an interview the next day, if they are able persons and know how to use the washing maching and load up.

19.      I find that, on a strict view of the evidence, it might be said that Mr Harb did not “refuse or fail, without reasonable excuse, to accept a suitable offer of employment;” within the meaning of s 629(1)(d) of the Act because a formal offer had not been made before he walked out.

20. However, I consider that the evidence does establish that Mr Harb’s unemployment was due directly to his voluntary action of walking out of the premises during the middle of his trial or interview, and telling the potential employer that the job was not for him. In doing so Mr Harb committed a serious participation failure in contravention of s 629(1)(b) of the Act. The eight week non-payment period was properly imposed.

STAY APPLICATION

21. The Secretary applied for a stay of the decision of the SSAT on 1 September 2008, pursuant to s 41(2) of the AAT Act. As I decided to set aside the reviewable decision, there is no utility in granting the stay.

DECISION

22. The decision of the SSAT dated 11 April 2008 is set aside, and the decision of the ARO dated 29 January 2008 to impose the eight week non-payment period from 1 February 2008 to 27 March 2008 is affirmed, because Mr Harb was unemployed due directly to his voluntary act on 12 November 2007, pursuant s 629(1)(b) of the Act.

23. The Applicant's request for an order about the operation or implementation of the SSAT's decision pursuant to s 41(2) of the AAT Act is refused.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.

Signed: ……[sgd]…………

Steven Mulipola, Associate

Date of hearing:  13 October 2008

Date of oral decision:  13 October 2008

Date of written reasons:                 7 November 2008

Representative for the Applicant: Centrelink Legal Services and Procurement

Representative for the Respondent: Self-represented