JIM SAFLEKOS and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 420

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 420

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2008/5629

GENERAL ADMINISTRATIVE DIVISION		)
Re		JIM SAFLEKOS

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr C. Ermert, Member

Date11 June 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) C. Ermert

Member

SOCIAL SECURITY –– injury – telephone advice to employer – told to provide medical certificate – absence from work – failure to provide medical certificate – employment terminated – whether voluntary act – whether reasonable - decision affirmed.

Administrative Appeals Tribunal Act 1975 s 37

Social Security Act 1991

REASONS FOR DECISION

11 June 2009   Mr C. Ermert, Member

Introduction

1.      Mr Saflekos, the applicant, has intermittently received newstart allowance (NA) from Centrelink since late 1996.  Centrelink is the service provider for the Department of Education, Employment and Workplace Relations. On Friday 1 August 2008 he injured his ankle in a fall.  On Monday 4 August, in spite of the injury, Mr Saflekos commenced employment as a storeman with Precision International Pty Ltd (the employer).  His duties required him to stand for most of the day.  While at work on Tuesday 5 August Mr Saflekos showed his injured ankle to a co-worker.  On Wednesday 6 August Mr Saflekos decided that his ankle injury was too severe to go to work that day.  He telephoned his employer and spoke to his manager, Mr Donker.  He told Mr Donker of his injury.  During the conversation Mr Donker told Mr Saflekos he would need to get a doctor’s certificate. 

2.      Mr Saflekos did not report for work on the Thursday or Friday of that week.  On both of those days he was contacted by Mr Lie from IPA Personnel (IPA), the applicant’s Job Network Member.  Mr Lie advised Mr Saflekos that he must provide a medical certificate otherwise he was at risk of losing his job.  Mr Saflekos did not obtain a certificate as he felt he did not need treatment from a doctor and that his injury had already been verified by a co-worker.  Mr Saflekos did not contact the employer on those days. 

3.      Mr Saflekos reported for work on Monday 11 August without a medical certificate for his absence from work during the previous week.  Mr Donker terminated Mr Saflekos’s employment because of his failure to provide a medical certificate, his failure to contact the employer on the Thursday and Friday and because of his perception of Mr Saflekos’s attitude towards his employment.  

4.      On 25 August 2008 Centrelink issued Mr Saflekos with a notice that he had lost his job because of inappropriate behaviour on 11 August 2008 and Centrelink had decided that he did not have a reasonable excuse for his actions; that he had not met one of the conditions for receiving his payment and Centrelink had decided that he had committed a serious failure; and as a consequence his NA would not be paid for a period of eight weeks.  This decision was affirmed by a Centrelink authorised review officer (ARO).  Mr Saflekos sought a review of this decision by the Social Security Appeals Tribunal (SSAT).  On 11 November 2008 the SSAT affirmed the ARO’s decision.  This matter is an application for review of that decision of the SSAT. 

The Hearing

5. Mr Saflekos represented himself at the hearing. The respondent was represented by Mr Tim Noonan, an advocate from Centrelink Legal Services. I had before me the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  On behalf of the respondent I took in statements from Mr Tony Lie dated 22 January 2009 (Exhibit R1) and Mr Robert Donker dated 27 January 2009 (Exhibit R2). 

The Legislation

6.      The relevant legislation is contained in the following provisions of the Social Security Act 1991 (the Act):

629(1) A newstart allowance is not payable to a person, for the period of 8 weeks … if the person:

…

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

629(4) Paragraph (1)(b) does not apply if the Secretary is satisfied that the person’s voluntary act was reasonable.

7.      A guide to the reasonableness of a person’s acts is contained in Instruction 1.1.V.67 of the Guide to Social Security Law (the Guide) which states that consideration should be given to a number of factors including health.

The Issue

8.      The principal reason for the termination of Mr Saflekos’s employment relied on by the respondent is his failure to comply with the requests of the employer and IPA to provide a medical certificate for his absence from work from 6 to 8 August 2008 inclusive.  The issue I need to determine is whether Mr Saflekos’s failure to provide a medical certificate constitutes a voluntary act which was unreasonable and resulted directly or indirectly in the termination of his employment.  

Evidence

9.      Mr Saflekos’s evidence is that he was unable to work on the dates in question because of the severity of the injury to his ankle.  He said that he advised Mr Donker of the situation on Wednesday 6 August and told him that he had shown his injury to a co-worker.  Mr Saflekos does not remember being told by Mr Donker that he must produce a medical certificate for his time off work. 

10.     Mr Saflekos recalls being told by Mr Lie of IPA, in telephone conversations on the following two days, that he had to get a medical certificate.  His reply was that he did not think it necessary because the injury was verified by a co-worker.  Mr Saflekos agreed that Mr Lie had told him to contact the employer if he continued to be absent from work but disputed that Mr Lie had said that he must provide a medical certificate otherwise he was at risk of losing his job. 

11.     Mr Saflekos stated that he did not contact his employer on the Thursday and Friday because, from his telephone conversation on the Wednesday, he thought Mr Donker sounded satisfied.  Mr Saflekos also stated that he did not attend a doctor on this occasion because he had had sprains in the past and doctors had told him nothing could help apart from applying ice and taking pain killers.  Mr Saflekos stated that Mr Donker terminated his employment because he did not provide a medical certificate.  Mr Saflekos also agreed that in September 2006 he had left the employ of another firm, Aquamax, and had been similarly penalised for failing to comply with that employer’s request to produce a medical certificate in respect of an allergy condition. 

12.     Mr Donker’s evidence was that during his telephone conversation on Wednesday 6 August he told Mr Saflekos to get a doctor’s certificate but he did not tell him that it was company policy.  In answers to questions, Mr Donker agreed that Mr Saflekos had not been given a copy of an employment contract which contained the company policy. 

13.     Mr Lie gave evidence about his telephone conversations with Mr Saflekos on Thursday and Friday 7 and 8 August.  He said that he stressed the need for Mr Saflekos to provide a medical certificate when he returned to work to cover himself and just to prove to Rob, his new employer, … that he is seriously injured and not attending work but because of that … you know you risk losing your new job if he didn’t provide the medical certificate … but he was pretty adamant that he … wasn’t going to get one (Transcript page 55).  When asked about Mr Saflekos’s reaction Mr Lie said Same as previously. He said he didn’t need to get a medical certificate because of – he has had that similar injury in that (sic) past and why would he need to get one (Transcript page 56).  Mr Lie recalled being told by Mr Saflekos that he had shown his injury to a co-worker but he stressed the need for Mr Saflekos to get a medical certificate as proof of why he had not attended work. 

Consideration

14.     After considering the evidence I am satisfied that Mr Saflekos’s employment was terminated because he failed to produce a medical certificate in respect of his absence from work over the period 6 to 8 August 2008.  I do not consider it relevant that the provision of a medical certificate was a requirement of company policy and that this policy was not made known to Mr Saflekos.  The requirement for a medical certificate was made known to Mr Saflekos by both Mr Donker and Mr Lie.  The importance of a medical certificate to an employer would have been well known to Mr Saflekos from his prior experience with Aquamax.  In that case he had also been dismissed and penalised for not providing a medical certificate for his claimed condition. 

15.     From his own evidence it is clear that Mr Saflekos made a voluntary decision not to provide a medical certificate, despite being strongly advised to the contrary by Mr Lie, his Job Network Provider.  Although health is one of the factors listed in the Guide for consideration as to reasonableness of a voluntary action, there was no health factor which prevented Mr Saflekos from going to a doctor to obtain a medical certificate.  It was Mr Saflekos’s own decision, in spite of advice to the contrary, not to obtain a medical certificate, because of his belief that he did not need one.  This was a mistaken belief; and Mr Saflekos would have reasonably known it was a mistaken belief because of his prior experience of dismissal from Aquamax and the associated penalty imposed by Centrelink. 

16.     Accordingly, I find that Mr Saflekos voluntarily decided not to obtain a medical certificate to explain his absence from work for f 6 August to 8 August 2008; and this voluntary act was directly responsible for his unemployment effective 11 August 2008.  I further find that this voluntary act was not reasonable.  As a result, I find that the provisions of section 629 of the Act are met and that the eight week penalty has been correctly applied to Mr Saflekos.  Therefore, I affirm the decision under review and Mr Saflekos’s application is not successful. 

DECISION

17.The Tribunal affirms the decision under review. 

I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr C. Ermert, Member

(sgd)  Cassie Renfrew
  Clerk

Date of Hearing:  18 March 2009

Date of Decision:  11 June 2009

Advocate for the applicant:                 Mr Jim Saflekos, Self represented

Advocate for the respondent:             Mr Tim Noonan, Centrelink Legal Services