MICHAEL PYMBLE and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 226

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 226

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3072

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL PYMBLE

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Robin Hunt, Senior Member

Date3 April 2009

Place Sydney

Decision The decision under review is set aside and substituted is the decision that Mr Pymble’s newstart allowance should not be subject to a non-payment period in consequence of his voluntary act on 22 November 2007.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – offer of employment – attended job but left voluntarily - non-payment period results – lack of medical evidence – lack of evidence of occupational health and safety concerns – belated evidence of alcohol dependence - voluntary act of leaving reasonable - refusal or failure to accept the job after commencement - decision under review set aside.

RELEVANT ACT/S

Social Security Act 1991 (Cth), ss 593,601, 629

CITATIONS

…

OTHER AUTHORITIES

Social Security Guide 3.2.13.10 Serious failures

Social Security (Reasonable Excuse) (DEWR) Determination 2006

…

REASONS FOR DECISION

3 April 2009 Robin Hunt, Senior Member         

introduction

1.      Mr Michael Pymble seeks review of a decision imposing an eight-week non‑payment period of his newstart allowance.  Centrelink placed the non-payment period on Mr Pymble’s entitlement as a delegate decided he had committed a serious participation failure by voluntarily leaving suitable employment.  For the reasons set out below, I consider that the decision to impose an eight-week non-payment period should be set aside and no such period imposed on Mr Pymble’s entitlements.

decision being reviewed

2.      On 11 April 2008, the Social Security Appeals Tribunal (“the SSAT”) affirmed the decision of an authorised review officer (“ARO”) of Centrelink, which affirmed the original decision of 11 December 2007 to enforce an eight-week non-payment period.  Mr Pymble applied to the Administrative Appeals Tribunal to review the SSAT’s decision to enforce the period.  The effect of the decision was stayed pending the tribunal’s decision and Mr Pymble has continued to receive newstart allowance.

consideration

3.      Centrelink records show Mr Pymble has been receiving newstart payments since 17 February 2005 (T17 p74).  On 26 September 2007, he entered into a job search activity agreement with an employment agency (T6 pp 34-38).  Under the agreement, he agreed to accept all referrals to suitable positions offered by the agency between 26 September 2007 and 26 March 2008.  The job search agreement was operative when the agency referred Mr Pymble to a job commencing on 22 November 2007.  Mr Pymble admits that he went to work as arranged but left early and did not return or contact the employer or agency again on that day.  He contends that he should not have been required to work on that day at the job offered.

4.      The tribunal held a hearing of Mr Pymble’s claim by telephone as Mr Pymble was unwell.  His ex-wife assisted him.  Ms Pymble explained that Mr Pymble’s health had been deteriorating for some time and that he had been in Hawkesbury Hospital at Windsor for treatment including a hernia operation and drainage of fluid due to cirrhosis of the liver.  Mr Pymble said he had been in hospital several times but had no records to produce to Centrelink or the tribunal and his evidence about dates of admission was vague and confused.  He said he had asked doctors at the hospital to complete certificates for Centrelink but they were too busy.  Ms Pymble faxed to the tribunal a certificate from a doctor who was currently treating Mr Pymble for alcoholism and cirrhosis.  Ms Pymble said that she was helping Mr Pymble because she was concerned for his welfare if his payments stopped.  She said he was very unwell and found it difficult to deal with the Secretary’s action.

5.      Centrelink considered Mr Pymble committed a serious participation failure warranting an eight-week non-payment period when he voluntarily left the job during a morning tea break on 22 November 2007.  Mr Pymble agreed that he did leave the job but thought his action was justified.  In giving evidence before me about what had led to the incident, Mr Pymble said that a woman at the employment agency told him about the job offer, which she described as a maintenance position.  He thought the job involved mowing lawns and trimming trees.  His understanding was that maintenance work involved light duties such as mowing and trimming or painting and doing house repairs.  He was hoping for this sort of work since his health had been deteriorating and he could not do the heavy work he had done previously.

6.      When he arrived at work on 22 November, however, he discovered he was required to unload bales of hay from a truck.  Mr Pymble gave further evidence to the effect that he was not sufficiently fit to carry out such heavy work and that, if the offer of employment had been described as involving heavy lifting rather than maintenance, he would have rejected it as unsuitable.  He said that he was a qualified bricklayer and had worked as such for 25 years.  When he was looking for work in 2007, however, he sought light work as he could no longer do the heavy work of a bricklayer such as carrying heavy loads of bricks.  When asked about work he performed and for which he claimed payment on 21 November 2007 (ST pp 109-111) and on 5 December 2008 (ST pp 112-114), Mr Pymble explained that he had laid some bricks for this employer but only for 6 hours per day over three days.  He said he had been able to manage this as it was light work and over less than a full day on each occasion.

7.      According to the evidence, which the SSAT recorded (T2 pp 4-5), Mr Pymble said he arrived for work on 22 November 2007, earlier than the start time of 7.00 am.  He had worked until everyone took a break at around 10.00.  He then went home because it was raining, his clothes were wet, and he needed to change.  Mr Pymble told me he worked in the rain until about lunchtime and then went home to change into dry clothes.  Whatever the time he ceased work, Mr Pymble did go home and did not report back to work.  He said it continued to rain and he thought the wet conditions made it unsafe to resume work.  When asked if he thought work would have ended for the day because of the rain he said he didn’t know; he just did not want to work in the rain.  He did not ring anyone about his decision to stop work because his mobile phone was out of charge Mr Pymble thought there was an operational health and safety issue because he was required to climb onto the back of a truck to unload and it was slippery due to the rain.

8.      Despite his claims of disabling health problems in November 2007, Mr Pymble furnished no medical evidence except a certificate from Dr Richard Gee, dated 23 March 2009, certifying that Mr Pymble was suffering from alcoholism/cirrhosis and was unfit to work from the date of the certificate until 6 April 2009.  A search of Centrelink records indicates the only medical condition Mr Pymble reported around the time of the 22 November 2007 incident, was a bout of flu.  There is no mention in Centrelink records of any hernia operation or hospital admissions in 2007.  A Centrelink officer, on 11 December 2007 (T24 page 106) noted that Mr Pymble advised he had no mental health problems or alcohol dependence that might account for his behaviour.  The officer concluded there were no barriers to his working and that he had failed to meet his obligations.  The consequence was a decision to stop his payments for 8 weeks.

9.      On 22 November 2007, a Centrelink officer made a participation failure report.  On 11 December 2007 Mr Pymble was advised that a decision had been made that he did not have a reasonable excuse for leaving work and so becoming unemployed and that this was reason to stop his payments for eight weeks (T9 pp 45-46).

10.     Three months later, Mr Pymble’s alcohol dependence was recognised.  Although there was no record of alcohol dependence at the time of the November 2007 incident, Centrelink obtained a job capacity assessment report, on 15 February 2008, furnished by Ms McGarrigle.  Ms McGarrigle, who is described in the Secretary’s statement of facts and contentions as an “intern psychologist”, prepared a report after a face-to-face interview with Mr Pymble (ST pp 115-119).  Ms McGarrigle thought Mr Pymble’s presentation consistent with substance or alcohol abuse.  She further thought his alcohol dependency would interfere with his ability to look for and obtain work and might contribute to problems with attendance, performance and safety.

11.     The Secretary accepts Mr Pymble has an alcohol dependence problem but his representative argued that his alcohol dependence did not provide a reasonable excuse for his conduct.  The representative put to me that the work offered to Mr Pymble was unlikely to worsen or aggravate his condition and that this was the only consideration for determining whether he committed a newstart participation failure giving rise to stopped payments.  His dependence, the Secretary contended, did not affect the conclusion that Mr Pymble offended the newstart requirements by voluntarily leaving the job.

legislative framework

12. Section 593 of the Social Security Act 1991 (the Act) sets out how a person qualifies for newstart allowance. A person must satisfy the activity test to qualify. Section 601(1A)(a) of the Act provides that the person satisfies the test by undertaking suitable work. A person does not satisfy the test if he or she fails to do so, pursuant to s 601(2). Section 601(2A) sets out when work is unsuitable and section 629 imposes an eight-week non-payment period if the person commits newstart participation failures or various other types of failure. One of these circumstances occurs under s 629(1)(b) if the person is unemployed due to a voluntary act. However, the voluntary act may be excused under s 629(4) if it was reasonable.

13.     Mr Pymble had no legal representation and defended his actions on the basis that he felt he should not have been required to accept a heavy lifting job and that it was also unsafe to continue in slippery conditions.  He also stated that the job was not as represented.  Although he has no confirmation from a doctor that he has undergone a hernia operation he and his ex-wife both gave evidence that this was so.  Ms Pymble also said that Mr Pymble’s health had been very poor for quite some time.  I have no confirmation of the hernia operation other than oral evidence given by Mr Pymble and his ex-wife but there is independent confirmation of Mr Pymble’s alcohol dependence and cirrhosis.  Ms McGarrigle found alcohol dependence in February 2008 and his current doctor certified alcoholism and cirrhosis at the time of the review.  All of these factors affect whether Mr Pymble’s action on 22 November 2007 was reasonable.

14.     There is of course no definition of what is reasonable under the Act and guidelines.  The Social Security Guide, at 3.2.13.10, considers voluntary leaving a job a serious failure but goes on to say that an eight-week non-payment period must not be imposed without an appropriate Centrelink specialist officer and that this should ensure that personal issues or circumstances of the job seeker are taken into account in establishing whether the person had a reasonable excuse.

15.     A Centrelink officer who considered Mr Pymble’s case on 11 December 2007 (at T24 page 106), acknowledged the relevance of possible alcohol dependence when noting that Mr Pymble had not informed Centrelink of any such dependence.  It is unfortunate that the correct information was not available to the decision maker at the time of the original decision and Mr Pymble’s alcohol dependence was not discovered until February 2008.

16.     The Social Security (Reasonable Excuse) (DEWR) Determination 2006 refers to drug and alcohol dependence as a factor which must be taken into account when determining whether a person has a reasonable excuse for refusing or failing to accept an offer of suitable employment.  The Determination deals with s 629(1)(d) situations in para 4(1)(i) and does not refer to a situation like Mr Pymble’s where he was considered to have committed an offence under s 629(1)(b). 

17.     Section 629 deals with newstart allowance and non-payment for 8 weeks for a variety of participation failures.  Paragraph (1)(a) deals with repeat failures and para (1)(b) with the situation where a person is unemployed due to a voluntary act.  Paragraph 629(1)(d) deals with reasonable excuse for refusal or failure to accept a suitable offer of employment.

18.     Although the Determination is specific to the legislative provisions set out in its sections and paragraph 4(1)(i) refers only to persons having reasonable excuse for refusing or failing to accept a job offer, I see a strong parallel to the present case.  Mr Pymble’s work participation failure is covered by s 629(1)(b) in that he acted voluntarily in leaving the job but this does not mean that his actions do not also fall within other matters dealt with in section 629.  Mr Pymble found the job unsuitable in view of his health and safety concerns in slippery conditions.  His action might be seen as a refusal or failure to accept the job and so fall within s 629(1)(d) although he took action after performing some unloading for a period before he left.  Mr Pymble’s action as he explains it is not unreasonable.

19.     I find support for Mr Pymble’s position also in the job capacity assessment report furnished in February 2008, not long after the incident.  Ms McGarrigle observes that Mr Pymble’s alcohol dependence would affect his attendance, performance and safety.  In my view, these three factors affected Mr Pymble’s actions on the relevant day.  His action or perceptions, on balance, were partly attributable to his alcohol dependence and his reduced capabilities although he has not explained his participation failure in these terms.  He simply told the tribunal that he was not able to do heavy work and did not like working in the rain rather than suggest he was affected by alcohol dependence.  On balance, in my view, Mr Pymble’s alcohol dependence leads to a conclusion that he had a reasonable excuse to act as he did, which was to leave the job voluntarily or in effect to refuse the job.

findings

20.     I am satisfied from the evidence of Mr Pymble, his ex-wife, the job capacity assessor and Dr Gee that Mr Pymble suffered from alcohol dependence at the time of the November 2007 incident and this justifies a finding that he had a reasonable excuse for the purposes of s 629(1)(b) and (1)(d) in accordance with the Social Security Guide and the Determination of 2006.

decision

21.     The decision under review is set aside and substituted is the decision that Mr Pymble’s newstart allowance should not be subject to a non-payment period in consequence of his voluntary act on 22 November 2007.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member

Signed:   [sgd]..............................................................................

Renee Wallace, Associate

Date/s of Hearing:  26 March 2009
Date of Decision:  3 April 2009
Solicitor for the Applicant:                  self represented
Solicitor for the Respondent:             Ms R Harlock, Centrelink