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

[2008] AATA 350

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 350

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5385

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

Applicant

And MICHAEL MARSDEN

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date25 March 2008

PlaceBrisbane

Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal of 3 October 2007, and substitutes a decision that Newstart allowance is not payable to Mr Marsden for a period of eight weeks.

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Deputy President

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – imposition of an eight week non payment period – respondent was unemployed due to misconduct as a worker – decision under review set aside.

Social Security Act 1991 – s 629(1)

WRITTEN REASONS FOR DECISION

25 March 2008 Deputy President P E Hack SC    

1.This is an application by the Secretary of the Department of Education, Employment and Workplace Relations to review a decision made by the Social Security Appeals Tribunal on 3 October 2007.  That decision set aside the earlier decision of Centrelink, affirmed by an authorised review officer, that Newstart allowance was not payable to the respondent, Mr Michael Marsden. 

2.Mr Marsden did not attend at the hearing today, he having contacted my associate earlier in the day and informed her that he was disinclined to attend.  He was made aware of the possible consequences of non attendance, but nonetheless has chosen not to attend.  In the circumstances it seems appropriate to proceed in his absence.

3.The background to the matter may be shortly stated.  Mr Marsden was employed by a company called Australian Institute of Personal Trainers Pty Ltd (AIPT), commencing in November 2006.  His initial employment was on a part-time casual basis and gradually that increased.  His immediate supervisor was a Mrs Wendy Timms, who was employed as the Commercial Manager of AIPT. 

4.The evidence of Mrs Timms, which was accepted by the Social Security Appeals Tribunal, was that Mr Marsden was not a particularly diligent employee, but ultimately I need not reach any, or draw any, conclusion about his work history.

5.Mr Marsden’s employment was terminated on 29 May 2007.  Mrs Timms gave evidence before me about the circumstances of that termination.  On the preceding day Mr Marsden had asked her if he could have a day off to get a haircut. She refused that request and pointed out to him the need for him to apply himself diligently to his employment and that matters of personal convenience, such as getting a haircut, would be undertaken in an employee’s own time. 

6.On 29 May 2007, Mr Marsden was due at his employment at AIPT at 8.30 am for the purposes of attending meetings.  He did not attend, nor did he contact his employer to explain his non-attendance in advance of the scheduled starting time as he was expected to do.

7.Mrs Timms tried unsuccessfully to contact him by telephone at 8.30 am and again at 9 am.  At around 10 am she was able to speak to his flat mate and left a message for Mr Marsden to call her.  A short time later Mr Marsden telephoned her and explained the reason that he had not attended was that he had had to clear his room for a house inspection, of which he had, he said, been given notice only the evening before.  As it seems to me on the evidence of Mrs Timms, the employment contract was terminated in the course of that conversation when Mrs Timms told Mr Marsden, when he offered to attend work at that time, that there was no job for him.

8.Whilst she did not explicitly use words “terminating the contract”, it seems to me to be plain that telling Mr Marsden in those circumstances that there was no job for him amounts in terms to termination.  Mrs Timms has subsequently completed a document for Centrelink called “Unemployment Separation Certificate”, which indicated that the reason for what is described euphemistically as “separation”, was unsatisfactory work performance, explained as “not suited to role”.  That is in some senses not consistent with the evidence that Mrs Timms gives, but she explains that inconsistency in her written statement, exhibit 3, as an attempt by her to give Mr Marsden, “a chance to get another job.”

9.Once Mr Marsden became unemployed he applied for Newstart allowance to Centrelink.  Enquiries were made by Centrelink of AIPT and the circumstances of the termination of Mr Marsden’s employment came to light.  That resulted in Centrelink determining that the Newstart allowance was not payable to Mr Marsden for a period of eight weeks because he had committed a serious failure.  Subsequently that decision was affirmed on internal review by an authorised review officer on 24 August 2007.  Thereafter, Mr Marsden, applied to the Social Security Appeals Tribunal which accepted the evidence of Mr Marsden and concluded that the circumstances of his termination did not constitute a level of misconduct necessary to meet the requirements of the legislation. 

10.Accordingly, that Tribunal set aside the decision under review and instead decided that no non payment period ought be imposed. As I said the Secretary seeks a review of that decision. The legislation in issue here is s 629 of the Social Security Act 1991.  So far as is presently relevant, subsection (1) of that section provides that a Newstart allowance is not payable to a person for a period of eight weeks if the person “is unemployed due to the person’s misconduct as a worker”.  The question in this case is whether the circumstances which led to Mr Marsden’s unemployment, that is, his termination on 29 May 2007, was brought about by his misconduct as a worker. 

11.Mr Black, for the Secretary, also relies upon paragraph (b) of s 629(1) of the Social Security Act, that is the unemployment was due directly or indirectly to a voluntary act of the person however, I do not find it necessary to reach a conclusion about the ambit of that paragraph. 

12.It is sufficient for me to conclude that Mr Marsden’s unemployment arose as a consequence of his misconduct as a worker.  I reach that view because it seems to me to be plain that Mr Marsden breached the terms of his employment.  He had an obligation to attend work at 8.30 am, and if unable to do so, he was obliged to make prior contact, or at least contemporaneous contact, with his employer. 

13.He did not do so. In fact, he made no contact at all until some considerable time after the appointed starting time when eventually he was able to be contacted via a message to his flat mate.  He had no valid excuse for non attendance, it simply seems that it was inconvenient for him to attend work.  In circumstances where the legislation imposes upon those who seek to benefit from Newstart allowance an obligation to act reasonably in relation to their employment, it seems to me that this is a plain case where the unemployment is due to misconduct as a worker and I so find. 

14.In the circumstances, and understandably, it seems to me that the Social Security Appeals Tribunal treated Mr Marsden too generously.  I say understandably because that Tribunal did not have the benefit of the detailed evidence from Mrs Timms that has been provided to me.  It is perhaps unfortunate that greater detail was not available from Mrs Timms at the time of the original decision and at the time of the Social Security Appeals Tribunal decision.  Nonetheless that detail is now available and as I have said it seems to me to lead plainly to the conclusion that the original decision was correct.

15.I would therefore set aside the decision of the Social Security Appeals Tribunal of 3 October 2007, and substitute a decision that Newstart allowance is not payable to Mr Marsden for a period of eight weeks.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................................................................................
  Jacqueline Woods, Associate

Date of Hearing  25 March 2008
Date of Decision  25 March 2008
Solicitor for the Applicant          Departmental Advocate
The Respondent did not appear