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

[2008] AATA 742

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 742

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W 2007/0043

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

Applicant

And ANTONY McCOWAN

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member

Date22 August 2008

PlacePerth

Decision The Tribunal affirms the decision under review.

............[sgd Mr A Sweidan].............

Senior Member

CATCHWORDS

Social Security - Newstart Allowance - whether applicant dismissed and became unemployed as a result of misconduct as a worker – evidence does not establish dismissal due to misconduct – decision of Social Security Appeals Tribunal affirmed.

LEGISLATION

Social Security Act 1991 (C'th) - s 629 (1)(c)

CASES

Re: Secretary, Department of Employment and Workplace Relations and Payne [2007] AATA 1745

Re Secretary, Department of Education, Employment and Workplace Relations and Dates  [2008] AATA 54

REASONS FOR DECISION

22August 2008 Mr A Sweidan, Senior Member    

BACKGROUND

1.      The applicant, the Secretary of the Department of Education, Employment and Workplace Relations seeks a review of a decision of the Social Security Appeals Tribunal (SSAT) made on 11 January 2007.

2.      The SSAT decided that the respondent’s (Mr McCowan) dismissal from employment was not due to any misconduct by him as a worker and that accordingly that he had not committed a serious participation failure as defined in the relevant legislation and that his Newstart Allowance should not be suspended for a period of 8 weeks, i.e. 15 September 2006 to 9 November 2006 as previously determined by one of the applicant’s officers.

HISTORY

3.      Mr McCowan was in receipt of Newstart Allowance when on 10 September 2006 he was dismissed from his employment by his employer at the Military Markets Café ( the Café) allegedly on the grounds of misconduct.

4.      Mr McCowan told the SSAT and the Tribunal that he had been concerned about his safety at his place of employment and that his medical conditions had worsened as a result of the enforced inefficient work practices. He said that he was dismissed after reporting his employer to the Office of Energy Safety regarding a gas bottle.

5.      On 10 September 2006 a Centrelink officer decided that Mr McCowan’s dismissal from employment at the Cafe due to alleged misconduct was a serious participation failure and therefore his Newstart payments would cease for the period 15 September 2006 to 9 November 2006.

6.      The original decision was affirmed by an authorised review officer on 20 November 2006.

7.      Mr McCowan appealed to the SSAT on 24 November 2006 and the SSAT set aside the decision of the Centrelink Officer on the grounds that Mr McCowan was not dismissed for misconduct.

EVIDENCE BEFORE THIS TRIBUNAL

8.      The Tribunal heard evidence from two witnesses called by the applicant, namely, Karen Vavra who was a part-owner of the Café and Neira Saracevic who was a co-worker with Mr McCowan at the Café at the relevant time.

9.      The Tribunal also heard evidence from Mr McCowan.

ISSUE FOR THE TRIBUNAL

10.     The issue for the Tribunal was whether Mr McCowan’s dismissal from his employment was due to misconduct.

EVIDENCE AND TRIBUNAL’S FINDINGS

11.     There was a conflict between the evidence of Ms Vavra and Mr McCowan.

12.     Ms Vavra says that the misconduct for which Mr McCowan was dismissed consisted of:

(a)His coming to work late on numerous occasions.

(b)His going home to fetch his own egg flipper on one occasion.

(c)His working on a “go-slow” basis.

(d)His saying on one occasion “Sack me, Sack me” after a dispute with Ms Vavra.

(e)That he spoke to her “like dirt” and was rude to her.

13.     The Tribunal found Ms Vavra to be an unsatisfactory witness in a number of respects.

14.     She was clearly uncomfortable in the witness box particularly under cross-examination.

15.     It was clear from Ms Vavra’s evidence that she condoned Mr McCowan’s coming to work late and that she was generally satisfied with the way he did his work, albeit that there were some fairly minor problems for example the egg flipper issue which caused some occasional irritation.

16.     When asked to provide evidence of Mr McCowan’s alleged rudeness she was unable to do so other than to say that:

a)on one occasion he yelled to her across the kitchen in the customer service area that he was prepared to take a pay rise (which he had initially declined when she offered it to him); and

b)on another occasion she heard him shouting from the kitchen within earshot of customers “sack me, sack me”.

17.     Mr McCowan did not dispute that he was often late to work by 15 to 20 minutes. His lateness affected the time available for the preparation of some foods but he arrived well before any customers. He told the Tribunal that he readily worked without breaks and for long hours which Ms Vavra acknowledged.

18.     Mr McCowan explained what he considered to be the inadequacies of his workspace and the fact that it was not easily able to service a large volume of food orders at any one time. The Tribunal considered this may have resulted in the employer saying that his work was slow however no particulars were provided by Ms Vavta regarding Mr McCowan’s work being slow or the consequences of any slow work.

19.     Mr McCowan took issue with the allegation that he asked to be dismissed because he wanted to spend more time in his business. He said that he made a comment to a fellow worker about how much easier his herb business was in comparison to working in the Café. The other worker made a similar comment about finding her gardening business easier. He said that this had not been a statement of desire to be elsewhere.

20.      Mr McCowan agreed he said to his employer “maybe I shouldn’t work here” this was after he felt very uncomfortable with his employer’s attitude towards him immediately following his reporting of the gas bottle problem to the Officer of Energy Safety. He told the Tribunal that later the same day he informed his employer that he would no longer cut cold roast beef, due to problems he was having with his hands.

21.     The Tribunal notes that the gas bottle and the cold roast beef issues had been raised with the employer prior to Mr McCowan’s last day at the Cafe. He had been told by the employer that the gas bottle was safe however the Office of Energy Safety subsequently instructed that it be removed. Mr McCowan had also made suggestions to change work practices to enable the roast beef to be cut with ease. No action was taken to improve that work practice.

22.     The Tribunal accepts Mr McCowan’s evidence and is of the view that there was no misconduct by him in the course of his work at the Cafe. The Tribunal notes that while Mr MCowan’s observance of health and safety matters may have displeased his employer however he was entitled to raise these concerns without penalty.

23.     The Tribunal notes that the timing of Mr McCowan’s dismissal coincided with his reporting of the gas bottle to the Office of Energy Safety and the Tribunal concludes that this was likely to have been the major factor contributing to his dismissal. The other factors of being late for work and working slowly do not appear to have been of a serious nature. The Tribunal accepts Mr McCowan’s evidence where it conflicts with that of Ms Varva. His comment on his last day of work that maybe he shouldn’t be working there appeared to the Tribunal to have been expressed at a time when he felt his employer’s displeasure over the gas bottle reporting.

24.     Mr McCowan said that he went to the Office of Energy Safety to obtain some information regarding the safety of gas bottles because he was concerned for his safety. He had read media reports of serious injuries resulting from gas explosions and his employer had disregarded his concerns about the gas bottle.

25.     He provided the name of his employer to the Office of Energy Safety after discussing his work environment and being encouraged to disclose his place of employment.

26.     When he next attended work he felt the employer was very “dark” towards him and was not at all happy that he reported the gas bottle situation. The Office of Energy Safety had instructed his employer to remove the gas bottle. He felt very uncomfortable at that time and made the comment “maybe I shouldn’t work here”.

27.     Ms Saracevic, the other witness called by the applicant, who worked at the Café said that she was in no doubt that Mr McCowan was dismissed because of the gas bottle incident. She also cast doubt on Ms Varva’s version of the “sack me, sack me” incident which was denied by Mr McCowan.

28.     The Tribunal notes that in fact it was not Ms Vavra who dismissed Mr McCowan but her partner Mr Riches.  Mr Riches was not called to give evidence and in the Tribunal’s view this circumstance supports Mr McCowan’s version of events, i.e., that he was sacked because of the gas bottle incident and not for the other reasons alleged by Ms Vavra, none of which in the Tribunal’s view would have led to his being dismissed.

29.     The Secretary has placed reliance on two decisions of the Tribunal, ie. Secretary, Department of Employment and Workplace Relations and Payne [2007] AATA 1745 and Secretary, Department of Education, Employment and Workplace Relations and Dates [2008] AATA 54.

30.     In the Tribunal’s view both of those decisions can be distinguished on their facts from the facts in this application.

31.     In the result, the Tribunal finds that Mr McCowan was not dismissed for misconduct as a worker.

DECISION

32.     The Tribunal affirms the decision of the Social Security Appeals Tribunal.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed: .........[sgd Ms T Freeman]............
  Associate

Date/s of Hearing  3 April 2008
Date of Final Submissions       21 July 2008
Date of Decision  22 August 2008
Applicant’s Representative      Ms Margaret Conlon
  Centrelink Legal Services
Respondent   Self represented