Le and Secretary, Department of Employment (Social services second review)

[2016] AATA 527

Le and Secretary, Department of Employment (Social services second review) [2016] AATA 527 (4 July 2016)

Division	GENERAL DIVISION
File Number	2016/1133
Re	Hoang Minh Le
APPLICANT
And	Secretary, Department of Employment
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	4 July 2016
Date of written reasons	25 July 2016
Place	Sydney

The Tribunal affirms the decision under review.

........................[sgd]................................................

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – No Show No Pay Failure penalty – Employment Pathway Plan – whether applicant complied with requirements – whether reasonable excuse for not complying – meaning of between 9:30 am and 11:30 am – decision under review affirmed

LEGISLATION

Social Security Act 1991 ss 593, 605, 606

Social Security (Administration) Act 1999 s 42C

REASONS FOR DECISION

Senior Member J F Toohey

25 July 2016

Background

1. Mr Hoang Minh Le has been receiving Newstart allowance at various times since 1991.  He seeks review of a decision by Centrelink on 12 August 2015 to impose a “No Show No Pay” Failure penalty of $52.80 on his payment.

2. A person who is receiving Newstart allowance may be required to enter into an Employment Pathway Plan by which he or she agrees to participate in certain activities for a specified period: Social Security Act1991, ss 593, 605, 606.

3. If a person fails to participate, on a particular day, in an activity that he or she is required to undertake by an Employment Pathway Plan that is in force on that day, then a “No Show No Pay” Failure occurs: Social Security (Administration) Act 1999, s 42C.

4. On 10 July 2015, Mr Le signed an Employment Pathway Plan with Disability Employment Services Fairfield in which he stated:

   I agree to research potential employers and prepare job applications with the help of Direct Employment Fairfield from 10/07/2015 to 09/10/2015.

   I agree to research potential employers and prepared job applications with the help of Direct Employment

   I agree to attend and fully participate in job skills activities with Direct Employment Fairfield from 10/07/2015 to 09/10/2015.  I will attend on Wednesday between 09:30 AM and 11:30 AM. I agree to attend and fully participate in job search skills activities with Direct Employment Fairfield. I will attend on Wednesday 09:30 AM and 11:30 AM.

5. As the agreement shows, it was to operate from 10 July 2015 to 9 October 2015.  I am satisfied that it was in force on 5 August 2015.

6. On 5 August 2015, Mr Le attended Disability Employment Services Fairfield but left at 11:05am.  On 12 August 2015, Centrelink imposed a “No Show No Pay” Failure penalty of $52.80 on his Newstart allowance.  Centrelink affirmed its decision on 10 September 2015.  On 22 February 2016, the Social Services and Child Support Division of the Administrative Appeals Tribunal (SSCSD) affirmed the decision to impose the penalty.  Mr Le maintains that the penalty should not be imposed. 

7. At the conclusion of a hearing on 4 July 2016, I gave oral reasons for my decision to affirm the decision under review.  These written reasons are produced at Mr Le’s request and reflect the reasons given orally at the hearing.

   The facts

8. Mr Le does not dispute any of the following:

   ·on 5 August 2015, he left Disability Employment Services Fairfield at 11:05 am;

   ·it was not the first occasion on which he had left early;

   ·he had also come late on other occasions;

   ·he had been told that he was required to stay for two hours.

9. A document titled Participation Report – Failure to Behave Appropriately in an Activity (the Participation Report) shows that Mr Le was required “to attend job search from 9:30 am to 11:30 am on every Wednesday but continues to leave early”.  He was advised on 26 June 2015 not to repeat this but he had ignored the warning and again left early.  He had been advised he must stay for two hours and apply for as many jobs as possible, but he had refused.  The Participation Report shows that Mr Le had “again refused to stay for 2 hours and do job search” and had said “he will leave as soon as he finished applying for jobs”; it had been explained that he was required to stay for the entire two hours and apply for as many jobs as possible but he had again refused to do so.

10. The Participation Report further shows that Mr Le had been advised that his agreement obliged him to attend once a week and stay for two hours; he had been advised he could take breaks in between but he had to return to job search activities; Mr Le spoke in English and advised he did not need an interpreter.

11. Mr Le does not dispute the contents of the Participation Report but he maintains that the agreement in his Employment Pathway Plan to attend “between 9:30 am and 11.30 am” required him to do no more than attend at Disability Employment Services Fairfield at any time between 9.30am and 11.30am.  He maintains that nothing in the agreement required him to be present for two hours.  In particular, he maintains that he was not required to attend for “part-time imprisonment” and could leave at any time that he considered he had undertaken sufficient job searches.

    Consideration

12. I accept that, in some contexts, the expression between one time and another may be construed as meaning at some point between those times.  For example, “I expect to arrive between 9:00 am and 10:00 am” can only mean “at some point” between 9:00 am and 10:00 am.  In contrast, “We are open for business between 9:00 am and 5:00 pm” clearly connotes for the duration between those times, or “from 9:00 am to 5:00 pm”. 

13. For this reason, I am not in complete agreement with decision of the SSCSD that between in relation to time must mean for the duration.  However, Mr Le could have been under no misapprehension as to the meaning of “between 9:30am and 11:30am” in his Employment Pathway Plan.  There is nothing to suggest that he did not understand what was required of him.  Insofar, if at all, that there was any ambiguity in the wording of the agreement, it was overcome by the repeated advice that he was required to stay for two hours.

14. It was clear at the hearing that Mr Le was determined to maintain his interpretation of the agreement and, as the SSCSD member observed in his decision, Mr Le “was not amenable to any rational argument.  He had formed his opinion and would stick by it regardless”. 

15. In these circumstances, I am not satisfied that Mr Le had a reasonable excuse for not complying with his Employment Pathway Plan on 5 August 2015. 

16. It follows that Centrelink’s decision to impose a No Show No Pay Failure penalty was correct and I affirm the decision under review. 

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

.........................[sgd]...............................................

Associate

Dated 25 July 2016

Date of hearing	4 July 2016
Applicant	In person
Solicitors for the Respondent	Mr A Kennedy, Department of Human Services