Peter Wells and Secretary, Department of Social Services
[2014] AATA 549
[2014] AATA 549
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1509
Re
Peter Wells
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 28 July 2014 Date of written reasons 8 August 2014 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
SOCIAL SECURITY – Newstart allowance – unemployment arising from a voluntary act or misconduct as an employee – eight week period of non-payment – limited discretion to waive eight week period – decision affirmed
Social Security (Administration) Act 1999 section 42S
Social Security (Administration)(Ending Unemployment non-payment Periods – Classes of Persons)(DEEWR) Specification 2009 (No. 1)
Secretary, Department of Employment and Workplace Relations and Payne [2007] AATA 1745
Guide to Social Security Law
REASONS FOR DECISION
Regina Perton, Member
8 August 2014
The Tribunal provided oral reasons for its decision at a hearing of this application on 28 July 2014. Mr Wells subsequently requested written reasons for the decision.
Mr Wells applied for Newstart Allowance (NSA) after he became unemployed in late 2013. Mr Wells had been a production worker at a mill which produced flour and other products from 30 March 2012 until 6 December 2013. His employer was a labour hire firm which provided casual workers for the mill.
Centrelink administers NSA on behalf of the respondent. On 24 December 2013 Centrelink imposed an eight week non-payment period of NSA because of information it had received that Mr Wells had been dismissed from suitable employment because of misconduct.
Mr Wells challenged that decision on the basis that his dismissal was the result of a lack of consideration of the workers’ conditions and bullying and harassment by the leading hand. He has not, however, lodged a claim for unfair dismissal.
On 14 January 2014 an authorised review officer (ARO) of Centrelink determined that the eight week period of ineligibility for payment should stand. On 18 February 2014 the Social Security Appeals Tribunal (SSAT) affirmed the decision concerning the eight week non-payment period. Mr Wells lodged an application for review of the SSAT decision with this Tribunal on 25 March 2014.
Mr Wells has consistently stated that his employment was not terminated for misconduct but rather that he was sacked before there was a physical confrontation between him and the production manager of the mill. Centrelink maintains its view that Mr Wells was terminated because of misconduct on his part.
The Tribunal must decide, on the balance of probabilities, whether the termination of employment was due to misconduct on Mr Wells’ part. The Tribunal will also consider whether there is any power to waive all or part of the eight week period of ineligibility for a person in Mr Wells’ situation.
WAS THE TERMINATION DUE TO MISCONDUCT?
Section 42S of the Social Security (Administration) Act 1999 (the Administration Act) spells out what happens in circumstances such as those in which Mr Wells finds himself:
42S Unemployment resulting from a voluntary act or misconduct
(1)A participation payment is not payable to a person for the period mentioned in subsection (3) if the Secretary determines that:
(a)the person is unemployed as a result (whether direct or indirect) of a voluntary act of the person; or
(b)the person is unemployed as a result of the person’s misconduct as an employee.
Note: The Secretary may continue the participation payment pending the outcome of an application for review (see sections 131 and 145 of the Administration Act).
(2) …
Period of non‑payment
(3)The participation payment is not payable to the person for the period (the unemployment non‑payment period) of:
(a)8 weeks beginning on the initial day; or
…
(3A)For the purposes of subsection (3), the initial day is:
(a)the day that the person becomes unemployed as a result of the person’s voluntary act or misconduct; or
(b)the first day of the first instalment period that begins after the day the Secretary makes the determination if:
(i) the Secretary considers that first day is more appropriate than the day mentioned in paragraph (a); and
(ii) the person is receiving a participation payment at the time of the voluntary act or misconduct.
Note For the day the Secretary makes the determination, see section 42Y.
Mr Wells said that it had been a hot day on 6 December 2013. He described his work place as a tin shed and by the time he started his afternoon shift at 2 pm, it was unpleasantly hot inside. Mr Wells said that he and a co-worker were on a production line filling and storing bags of flour weighing one kilogram. The speed of production could be regulated. When there were three people on the line, they could run at a good speed. The third person had not yet come in when the incident that led to his sacking took place.
Mr Wells said that he and the other worker had been asked to work extra time that week and were both hot and tired. Mr Wells said that he had set the speed on the slower end when the leading hand came along and sped it up. Mr Wells said that he had changed the speed back to the slower speed when the leading hand came back with the production manager. Heated discussions followed and Mr Wells was eventually told to go home. Mr Wells said that the words used amounted to his being sacked. He and the production manager came closer to each other and somehow, Mr Wells pushed the production manager, who then fell. Police were called but no charges were ever laid.
Mr Wells maintains that the words go home amounted to his sacking and that the incident with the production manager was after his employment had been terminated.
Mr Wells blamed the leading hand and his actions and attitude for the confrontation. He had a poor relationship with the leading hand, whom he had accused of bullying and harassment. He believes that the leading hand acted unreasonably in speeding up the machine and that the leading hand should have stayed to help after he had increased the rate. Mr Wells said that if the speed was too fast, bags could fall and split due to a bank up on the line. Mr Wells said that usually the workers regulated the speed. He said that if the leading hand had stayed to help instead of disappearing, there would have been no confrontation with the production manager.
Mr Wells was employed on a casual basis through ESE Consulting which provided labour for the mill. Therefore the sacking, when it did finally happen, could only be by ESE Consulting on the recommendation of the mill’s management. It appears that the mill’s management was able to determine the hours worked by the casual employees but Mr Wells was paid by ESE Consulting.
A Centrelink officer contacted Kate Johnson, Director of ESE Consulting on 29 January 2014. Centrelink records indicate that the officer had spoken to Ms Johnson:
…who advised that Peter had been mucking up at work, he was spoken to by his supervisor in the form of a verbal warning. Peter then got off the machine and it became physical. That is why his employment was terminated….
The SSAT’s Reasons for Decision indicate that the SSAT obtained further evidence from Ms Johnson:
17.Following the hearing the Tribunal contacted Katy Johnson from ESE Consulting. She said she was aware of the circumstances of Mr Wells’ termination. She said that overall Mr Wells had been a good employee. The Tribunal asked Ms Johnson why Mr Well’s [sic] employment had been terminated. She indicated that the main reason related to him having pushed his supervisor after he was reprimanded. The Tribunal asked whether in fact Mr Wells had already been fired at that point. She stated it was clear from her record of the incident that he was fired after the encounter became physical.
Mr Wells remains adamant that he was sacked before the physical confrontation by the use of the words go home. Given Mr Wells’ status as a casual mill employee whose hours were regulated by mill management, the direction to go home is not necessarily the same as being sacked. The Tribunal is not satisfied that Mr Wells was sacked before the physical confrontation.
The Tribunal accepts that Mr Wells was hot and tired, that the number of people on the production line was not at optimal level for that speed and that everyone involved could have handled the situation better. However, the actions of the mill’s management in increasing the speed of the production line appear to be within its prerogative.
While there is no legislative definition of misconduct as an employee, the Department’s Guide to Social Security Law provides guidance at clause 3.1.13.80. The Tribunal is satisfied that it is appropriate to follow that guideline. Further guidance is provided in a decision by Deputy President Forgie in Secretary, Department of Employment and Workplace Relations and Payne [2007] AATA 1745.
In the Statement of Facts and Contentions, the respondent indicated that there is no evidence that the directions given to Mr Wells were unlawful or unreasonable. The respondent pointed to the following circumstances to counter Mr Wells’ submissions:
a.Mr Wells refused; and repeatedly so, to comply with a direction to perform work as given to him by the production manager; and quite possibly by the leading hand as well with reference to the evidence of Mr Wells, as recorded by the SSAT.
b.Mr Wells himself admits he “lost it” when told to go home…
c Mr Wells understood being told to go home meant that he had been dismissed.
d.Mr Wells admitted he reacted badly when he pushed the production manager, causing him to fall to the ground.
e.Mr Well’s [sic] employer viewed the matter so seriously that the police attended the workplace.
…
g.Pushing a manager in the work place was an excessive and unreasonable response in all the circumstances, and more indicative of a retaliatory response to being told to go home after refusing to comply with his employer’s direction.
…
26.It is contended the conduct of Mr Wells pushing the production manager to the chest, causing him to fall to the ground, was clearly violent and unacceptable, sufficient to constitute misconduct for the purposes of the Administration Act, as informed by the Guide and the case law referred to above.
On the balance of probabilities, the Tribunal finds that Mr Wells’ employment was terminated after the physical confrontation with mill management. The Tribunal is satisfied that Mr Wells’ actions amounted to misconduct.
CAN THE EIGHT WEEK PERIOD BE WAIVED OR REDUCED?
Section 42S(4) and (5) of the Administration Act provide for some limited relief where a person has lost their employment due to misconduct:
Ending unemployment non‑payment periods
(4)The Secretary may end a person’s unemployment non-payment period if:
(a)the Secretary determines that serving the unemployment non‑payment period would cause the person to be in severe financial hardship; and
(b)the person is in a class of persons specified by legislative instrument under subsection (5).
Note:For in severe financial hardship see subsection 14A(7) of the 1991 Act.
(5)For the purposes of subsection (4), the Secretary may, by legislative instrument, specify a class of persons.
A legislative instrument has been issued in relation to the above paragraph, namely the Social Security (Administration) (Ending Unemployment Non-payment Periods – Classes of Persons)(DEEWR) Specification 2009 (No. 1) (the Specification).
The Tribunal can only waive or shorten the eight week period if Mr Wells meets the criteria in the Specification. There is no general discretion available to the Tribunal.
The Specification only allows for waiver or shortening if a person is one of the following classes of person (section 42S(4)(b):
Specification of classes of persons
(1)For paragraph 42S (4) (b) of the Act, the following classes of persons are specified:
(a)persons who have significant family and caring responsibilities, including persons with a dependent child;
(b)persons who have an illness, impairment or condition that requires treatment, and who cannot afford the treatment after meeting their essential expenses;
(c)persons who have a cognitive, neurological, psychiatric or psychological impairment or mental illness that has been established by medical evidence;
(d)persons who do not have access to safe, secure and adequate housing, or are using emergency accommodation or a refuge.
(2)Without limiting paragraph (1) (d), a person is taken not to have access to safe, secure and adequate housing if:
(a)the housing to which the person has access:
(i) damages, or is likely to damage, the person’s health; or
(ii) threatens or is likely to threaten the person’s safety; or
(iii) does not provide the person with access to a reasonable level of personal amenities or the economic and social support that housing normally affords; or
(b)in the circumstances, the adequacy, safety, security or affordability of the housing to which the person has access is adversely affected or may be adversely affected; or
(c)the person does not have a right to remain, or a reasonable expectation of being able to remain, in the housing to which the person has access.
Even if Mr Wells is or was in severe financial hardship, the eight week period cannot be waived unless he fits into one of the classes in the Specification. There is no evidence that Mr Wells has family responsibilities or is suffering illness or impairment. In relation to housing, Mr Wells has indicated that he has stayed with a friend and can stay with his parent.
The Tribunal finds that it is unable to waive the eight week period, even if it would be so inclined.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 27 (twenty ‑seven) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member [sgd]......................................................................
Administrative Assistant
Dated 8 August 2014
Date of hearing 28 July 2014 Applicant Self - represented Advocate for the Respondent Mr Tim de Uray, Department of Human Services
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