NAIKOROSENE TIPASA and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 296

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 296

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3317

GENERAL ADMINISTRATIVE DIVISION		)
Re		NAIKOROSENE TIPASA

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr D Connolly AM, Member

Date29 April 2009

PlaceSydney

Decision The decision under review is affirmed.

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

Mr D Connolly AM
  Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance –preclusion period of eight weeks due to serious failure – whether applicant unemployed due to misconduct at work – meaning of “misconduct” as a worker - decision under review affirmed.

Relevant Acts

Social Security Act 1991(Cth), ss 629(1), 629(1)(c)

Relevant Case Law

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

REASONS FOR DECISION

29 April 2009 Mr D Connolly AM, Member          

1.This is an appeal by the applicant Mr Naikorosene Tipasa seeking that the decision by the Social Security Appeals Tribunal (the “SSAT”) made on 25 June 2008 that he not be paid a New Start allowance for a period of eight weeks due to him having committed a serious failure be set aside.

2.A translator in the Samoan language was present for the hearing which was conducted by telephone with the applicant.

3.Issues:

• Was Mr Tipasa’s employment terminated as a result of his misconduct as a worker.
• Did the misconduct constitute a serious failure and, if so;
• Does an eight week non-payment period apply to Mr Tipasa.

4.That decision confirmed a decision by a Centrelink Authorised Review Officer who upheld the imposition upon the applicant of an eight week period in which Newstart Allowance was not payable to him on the ground that he had become unemployed due to his misconduct as a worker.

5.Section 629(1) of the Social Security Act 1991 ( the “SSA”) lists the situations where a Newstart allowance is not payable, subsection 629(1)(c) relevantly states:

“ A newstart allowance is not payable to a person, for the period of eight weeks starting in accordance with  section 630, if the person:

(a)…

(b)…

(c) is unemployed due to a person’s misconduct as a worker; or

(d)…

(e)…”

6.The respondent gave evidence to the Tribunal, this evidence was generally consistent with that given previously to the SSAT. Where there were any perceived conflicts, the Tribunal has given precedence to the evidence given before it.

7.The applicant confirmed that at the time of his dismissal on 19 January 2008 he was an employee of Dupond Industries Pty Ltd repairing pallets and that the tools he used were a nail-gun, hammer and grinder. The Employment Separation Certificate issued by his employer stated that the reason for termination was “misconduct – breach of contract.”

8.The Tribunal did not take evidence from the applicant’s former employer as there is no dispute regarding the applicant’s previous employment nor the reason for his dismissal although the applicant disputes that his breach deserved dismissal.

9.The purpose of this hearing is to determine whether a Social Security Benefit should not be paid to the applicant under the SSA as a former employee for a period of eight weeks. Consequently, whether the applicant’s dismissal by his former employer was unduly severe is not relevant to this hearing.

10.The impugned conduct of the applicant was that he arrived at work on 18 January 2008 smelling of alcohol and that while at work he consumed a further two “stubbies”of beer. The applicant confirmed in his evidence to the Tribunal that he did indeed commit this breach of his employment contract.

11.The applicant stated that he attended a party on the previous evening to celebrate his cousin getting a job. He consumed alcohol and awoke the next morning with a “hangover.” Subsequently, he took two “stubbies” of beer from the refrigerator and consumed them at work in the hope that they would help clear his head.

12.His supervisor who was also the son of the owner, noticed that he smelt of alcohol. The applicant was told to stop work and go home. When he returned to work the next day the applicant was called into the office and told that he was fired as he had breached his employment conditions. The applicant said that he apologised for his breach, which he claimed was the first in his nine years of employment with the company but the supervisor wouldn’t listen to him.

13.The Tribunal asked the applicant whether, after nine years employment, he considered it was reasonable for his former employer to expect him to know the Company’s rules. He confirmed this but recalled that up to his second year with the company, every Friday after work the employees would consume a carton of beer on the premises. In his second year, management told staff that they could not drink on the work premises with the exception of Christmas and Melbourne Cup when they had a staff party which included the owner and executives.

14.The applicant confirmed to the Tribunal that on a normal working day he was well aware of the rule that no one was allowed to drink while at work and that he had broken the rule. He had thought the employer would let him off with a warning as he was coming up for long service leave.

15.The Tribunal recalled that in the applicant’s evidence to the SSAT he had mentioned that a worker had been killed. He confirmed that this event occurred and that at the time no supervisor was present. He was asked whether alcohol was an issue in that case. The applicant replied “yes,” because the rules were that a supervisor must always be present at the work site. When the death occurred no supervisor was present. Prior to the accident there were few safety signs around. It was only after Workcover came to investigate that new safety measures were introduced. He could not recall any signs saying that alcohol should not be consumed on the work site.

16.The Tribunal asked the applicant whether the employees had been specifically told not to consume alcohol at work. He replied that the owner and his supervisor had told the employees that they could not drink alcohol at the worlkplace in 2005 or 2006.

17.The applicant confirmed to the Tribunal, in response to a question, that he was well aware that he had been in breach of the rules. He was at the time still “hung-over” and thought that the two stubbies would “help him calm down.” He said that he had no reasonable excuse for committing the failure but he thought as he had no warning, he deserved a second chance.

18.In response to the respondent’s questioning, the applicant confirmed that he:

·     Was not living in emergency or non-permanent accommodation at the time of the offence. He was living in rental premises and had paid his rent one month in advance, that was why he had little money when he applied to Centrelink.

·     That he was not undergoing medical treatment but had previously been diagnosed for arthritis or gout and had presented a medical certificate to Centrelink, and when he attended work that day he was not sufferring from any cognative or psycological impairment. Nor when terminated that he was suffering from drug or alcohol dependency.

·     The applicant also confirmed that he did not have any unforseen family or caring responsibilities on the day of the breach. When asked whether there had been any deaths in the family at that time, the applicant replied that although his father had died a couple of weeks previously, it did not have any impact on him going out drinking on the previous night. “No I was not thinking of my father at the time as we were celebrating my cousin getting a job.”

19.The applicant told the Tribunal that there were no other extenuating circumstances which it should take into account in making a decision. This was his first permanent job and he was a hard worker. Now he was only employed on a casual basis.

20.Under the legislation in question, namely s 629(1)(c) of the SSA the Tribunal must be satisfied that the dismissal of the former employer (the applicant) was for perceived misconduct and not for some other reason. The Tribunal is satisfied that the employer dismissed the applicant because of his conduct while at work and which the employer regarded as sufficient grounds for terminating the mutuality of the contract of employment and not for some other reason. The Tribunal is satisfied that the employee gave his employer an excuse for terminating his employment and that the employer was entitled to act accordingly.

21.As to what constitutes “misconduct” as a worker, Deputy President Forgie in Secretary Department of Employment and Workplace Relations and Payne [2007] AATA 1745 at para 63 stated that what amounts to misconduct and to persons’ being unemployed due to misconduct at work can only be answered against the background of a particular employee’s circumstances in a particular workplace.

22.It is clear in this case that the employer took the view that the actions by the employee amounted to misconduct as a worker and the Tribunal is satisfied that the applicant was dismissed for his actions as an employee. The reasons given by the applicant for consuming alcohol at work cannot be seen as a reasonable excuse for his conduct which in view of his work and the tools in use, could have placed the lives of other workers in jeopardy.

23.When accepted that the applicant became unemployed due to his misconduct as a worker, s 629(1) of the SSA makes it mandatory that New Start Allowance not be paid for a period of eight weeks.

24.Consequently, the decision under review made by the SSAT on 25 June 2008 is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D Connolly AM, Member

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

Shanthi Silva, Associate

Date of Hearing  9 April 2009
Date of Decision  29 April 2009
Applicant  Self-represented
Advocate for the Respondent   Ms A Garcia, Centrelink