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

This matter concerned an appeal by Mr Le against a decision by the Secretary of the Department of Employment to affirm a "No Show No Pay Failure penalty" imposed on him. The penalty related to Mr Le's alleged failure to comply with the requirements of his Employment Pathway Plan. The dispute centred on Mr Le's attendance at Disability Employment Services Fairfield on 5 August 2015, where he left at 11:05 am, having been required to stay for two hours. Mr Le did not dispute leaving early or that he had been told he was required to stay for two hours.

The primary legal issue before the court was whether Mr Le had a reasonable excuse for not complying with his Employment Pathway Plan on 5 August 2015. This required the court to determine the meaning of the phrase "between 9:30 am and 11:30 am" as it appeared in Mr Le's Employment Pathway Plan, and whether any ambiguity in that phrase was resolved by other advice provided to Mr Le. The court also considered whether Mr Le's interpretation of the plan, that he was only required to attend at some point within that timeframe and not for the full duration, constituted a reasonable excuse.

The court acknowledged that the expression "between" in relation to time can, in some contexts, mean "at some point" within the specified period. However, it found that in the context of the Employment Pathway Plan, and particularly when considered alongside repeated advice that Mr Le was required to stay for two hours, there could be no misapprehension as to the actual requirement. The court was not satisfied that Mr Le had a reasonable excuse for his non-compliance, noting his determined adherence to his own interpretation of the plan despite clear advice to the contrary.

Consequently, the court affirmed the decision under review, finding that Centrelink's imposition of the "No Show No Pay Failure penalty" was correct.