Potts and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 337

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 337

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2008/0279

GENERAL ADMINISTRATIVE DIVISION		)
Re		GREGORY POTTS

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr P McDermott RFD Senior Member

Date24 April 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]............................

SENIOR MEMBER  

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – newstart allowance - eight week non- payment period – whether the applicant had voluntarily ceased employment without a reasonable excuse – applicant voluntarily left employment to attend a funeral –  eight week non-payment period does  apply to the applicant – decision under review affirmed.   

Social Security Act 1991 s629

REASONS FOR DECISION

24 April 2008  Dr P McDermott RFD Senior Member

INTRODUCTION

1.      Mr Gregory Potts seeks the review of a decision on 26 October 2007, as affirmed by the Social Security Appeals Tribunal (“SSAT”) on 3 January 2008, which decided that an 8 week non-payment period applies to Mr Potts’ newstart allowance. The non-payment period was imposed on the ground that Mr Potts had voluntarily ceased his employment without a reasonable excuse.

HISTORY OF THE MATTER

2.      Mr Potts has for some time been in receipt of newstart allowance. On 28 May 2007 he commenced employment with Baytech–Specialist Recruitment, Upper Mt Gravatt (Baytech)[1]. Baytech is a recruitment agency. The employment arrangement between Baytech and Mr Potts required Mr Potts to provide services to Danley Construction Products Pty Ltd Queensland (Danley Construction). Mr Potts ceased work with Danley Construction on 1 August 2007.

[1] T6, folio 18

3.      Mr Potts in evidence stated that he became aware that his friend Ms Carol Foran (‘Ms Foran’) had passed away. He was advised of the death of Ms Foran by Ms Foran’s neighbours (Brian and Carol). Mr Potts states that he was distressed at her death. He had known Ms Foran for some 15 years. At one time before her health had declined Mr Potts and Ms Foran had spent every weekend together at a club. Mr Potts had a close relationship with Ms Foran and certainly wanted to attend the funeral service of Ms Foran.

4.      When Mr Potts had first learned that Ms Foran had passed away he had assumed that the funeral service would be held in Townsville.  In his evidence Mr Potts explained that he had made that assumption because the mother and sister of Ms Foran lived in Townsville. Mr Potts also mentioned that the mother of Ms Foran had mobility difficulties. Mr Potts stated that it was his intention to drive to Townsville and that he would possibly take Brian and Carol with him.  However, Mr Potts was advised by Brian and Carol to regularly check the funeral notices in a Brisbane newspaper.  In cross examination of Mr Potts it was pointed out to him that the Brisbane newspaper mainly had notices of funerals that were held in or near Brisbane.

5.      On 30 July 2007 Mr Potts experienced difficulties with his work at Danley Construction. Mr Potts stated that he had a disagreement with his supervisor, a Mr Spackman, who had criticised some work that he had allegedly done. Mr Potts in his evidence stated that the dispute was about a “trivial” matter. It was then that Mr Potts asked Mr Spackman if he could have one week off work so that he could attend a funeral service in Townsville. The tenor of the evidence of Mr Potts is that Mr Spackman did not directly refuse to grant any leave to Mr Potts. Instead Mr Spackman effectively asked Mr Potts if he was going to quit his job. Mr Potts then stated that he would leave on 1 August 2007.

6.      It was not until 3 August 2007 that Mr Potts had learned that the funeral service of Ms Foran would be held in Brisbane on 6 August 2007. Mr Potts stated that he attended that service. He tendered a copy of the newspaper advertisement of the funeral which was admitted into evidence[2].  Mr Potts also stated that he did not speak to the mother of Ms Foran.

[2] Exhibit C.

7.      Mr Potts stated that he had a three month engagement with Baytech. At the conclusion of that engagement he stated that he could then be employed by Danley Construction if that firm had made him an offer of employment. Mr Potts had been out of the workforce for some time and I accept that Mr Potts was looking to secure his future. However, it is clear that Mr Potts considered that he would not be offered a permanent position at Danley Construction. Mr Potts mentioned that only one person (whose name was Peter) had completed the 12 week trial period and was later offered a position by Danley Construction. In his statement of 1 October 2007 Mr Potts remarked that at the end of his trial period “I would have finished and the next scapegoat would enter. Just look at the records of the casual staff Baytech hire out to Danley that are used up and discarded”[3].

[3] T13, fol 30.

8.      Mr Potts in his evidence voiced his concerns about the working conditions at Danley Construction. In the operation of a machine he had burned two shirts. He was advised that only permanent staff would be issued with clothing. He had been issued with a long glove that he found unsuitable for use.

9.      Mr Potts did not notify Baytech that he had ceased work at Danley Construction.  In his statement of 6 September 2007, Mr Potts remarked: “I didn’t ring or inform Baytech”[4].  In his later statement of 1 October 2007, Mr Potts also remarked that, after ceasing with Danley Construction, “Two weeks elapsed & I had no contact with Baytech the job agency that hired me to the job”[5].

[4] T12, fol 29.

[5] T13, fol 30.

10.     Mr Potts stated in his evidence that he had previously notified Baytech when he was unable to attend work due to sickness.  However, he had not contacted Baytech to either seek leave to attend the funeral service or to advise the agency that he had ceased work at Danley Construction.

11.     The only conversation that Mr Potts had with Baytech after his engagement, other than to report sickness, appears to have occurred sometime after Centrelink imposed an 8 week non-payment period on 4 September 2007. Mr Potts stated that he called Ms Letch of Baytech to complain that her actions had caused him a penalty and she had, according to Mr Potts, replied that he should “get a job”. 

12.     Three written statements from employees of Baytech were admitted into evidence before me:

• Statement of 25 March 2006 from Ms Vickie Letch, Recruitment Consultant, Baytech[6].
• Statement of 25 March 2006 from Mr Ricky Spackman, Leading Hand, Danley Construction[7].
• Statement of 25 March 2006 from Mr Alistair Ash, Operations Manager, Danley Construction[8].

[6] Exhibit D.

[7] Exhibit E.

[8] Exhibit F.

13.     Ms Vickie Letch states that the decision to terminate the employment of Mr Potts was made by an officer who has now left Baytech. The statement refers to the first name of that officer who in the papers is variously described as “Bree” or “Brea”: no surname of that officer appears in the papers. The officer made that decision following advice from Danley Construction that Mr Potts had not turned up for work[9]. Ms Letch also stated that on 9 August 2007 she completed an Employment Separation Certificate[10]. 

[9] Exhibit D Statement of V Leatch, para 3, 25 March 2008.

[10] Exhibit D Statement of V Leatch, para 4, 25 March 2008.

14.     In his statement Mr Spackman states that, while he recalls Mr Potts, he does not recall having a conversation with Mr Potts about him wanting time off to attend a funeral service.  Moreover, Mr Spackman states that he does not have the authority to grant or refuse leave.  Mr Spackman states that Mr Potts would have been aware of this as part of his induction.  Mr Spackman further states that, if Mr Potts had approached him in relation to leave, he (that is Mr Spackman) would have advised Mr Potts to speak to the production manager[11]. 

[11] Exhibit E Statement of R Spackman, paras. 2-3, 25 March 2008.

15.     Mr Alistair Ash in his statement remarked, that on the file relating to Mr Potts that is held by Danley Construction, there is no record of Mr Potts applying for leave or any record that he gave notice prior to ceasing work[12].  

[12] Exhibit F Statement of A Ash, para 2, 25 March 2008.

RELEVANT DECISIONS

16.     In September 2007, Mr Potts was notified by Centrelink that a decision had been made that he had committed a ‘serious failure’ as he was unemployed due to a voluntarily act and that he did not have a reasonable excuse for his actions[13].

[13] T11, fol 27.

17.     Mr Potts sought a review of that decision.  On 26 October 2007, an authorised review officer wrote to Mr Potts advising that the decision had been affirmed[14].

[14] T15, fols. 33-40.

18.     On 21 November 2007, Mr Potts appealed that decision to the SSAT.  On 3 January 2008, the SSAT affirmed the decision under review[15].

[15] T2, fols. 4-9.

19.     On 23 January 2008, Mr Potts sought a review of that decision by this Tribunal.

RELEVANT LEGISLATION

20. Paragraph 629(1)(b) of the Social Security Act 1991 (the Act) provides:

“A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:

…

(b)is unemployed due, either directly or indirectly, to a voluntary act of the person; or”

21. Section 629(4) provides that paragraph (1) (b) does not apply if the Secretary is satisfied that the person’s voluntary act was reasonable.

ISSUES

22.     The issues that I have to resolve are twofold.

23.     First, I have to consider whether Mr Potts became unemployed due, either directly or indirectly, to a voluntary act.

24.     Secondly, if I decide that Mr Potts became unemployed due to a voluntary act, I must consider whether the voluntary act was reasonable.

CONSIDERATION

25.     The first issue that I have to consider is whether Mr Potts was unemployed due, either directly or indirectly, to a voluntary act.

26.     The decision to impose an 8 week non-payment period was made on the basis of a report to Centrelink from Baytech that Mr Potts had left his employer voluntarily. The report was in the form of an Employment Separation Certificate which was completed on 9 August 2007 by Ms Leatch and which was in evidence before me[16]. The following written notation appears on the form: “This guy had an ongoing position and left on his own accord. He had 38 hours a week. We did not get a phone call”. The form also states that the employee commenced work on 28 May 2007 and last worked for Baytech on 6 August 2007.

[16] T6, fol. 18.

27.     The Employment Separation Certificate was not correctly completed in a number of respects.  Mr Potts did not in fact cease work on 6 August 2007.  He had earlier ceased work on 1 August 2007.  In fact the person who completed the form has recognised that there was an error in the form:  in a later statement she has remarked: “As part of that form I noted that the last date worked by Mr Potts was 6 August 2007.  This in fact was the day on which Baytech was advised by Danley Constructions that Mr Potts had not turned up for work.  However, our records show that the last date for which Mr Potts was paid was 1 August 2007”[17].  The statement in the Employment Separation Certificate that Mr Potts also had an ongoing position was in my view incorrect as the contradicted evidence before me is that Mr Potts had a three month engagement with Baytech.

[17] Exhibit D, Statement of V Leatch , para 3, 25 March 2008

28.     I have given consideration to whether Mr Potts was “unemployed due, either directly or indirectly, to a voluntary act of the person” within the meaning of s 629(1) (b) of the Act.

29.     It is true that Mr Potts made a statement on 10 August 2007 in which he stated that he “left work voluntarily”. But in that very same statement Mr Potts remarked that he had a disagreement with the foreman and that “I feel I was forced to leave after asking for one week off to attend funeral in Townsville”[18]. 

[18] T7, fol. 19.

30.     Mr Potts in a later statement of 6 September 2007 states that he “was forced into…resignation”  and that he replied ‘yes’ when asked whether he was “going to finish up”.  In that later statement Mr Potts states that on 1 August 2007 he “gave 2 days notice”[19].

[19] T12, fol. 29.

31.     Mr Potts in his statement of 6 September 2007 states “On the 30^th July after unable to obtain a week off I gave Ric a supervisor with Danley 2 days notice and finish on the 1^st Aug”[20].

[20] T13, fol. 30.

32.     Mr Potts was honest in admitting that he could have handled his leave application differently by contacting Baytech who was his actual employer. He also appreciated that he could have completed a leave form.

33.     I have accepted the account of Mr Potts of his dealings with Mr Spackman. Mr Spackman in his statement states that he does “not recall having any conversation with Mr Potts about him wanting time off or about him ceasing work”[21]. Mr Spackman does not, however, categorically deny that such a conversation took place. The advocate for the Secretary has, quite properly, recognised that Mr Potts has been consistent in his accounts of his dealings with Mr Spackman.

[21] Exhibit E.

34. After reviewing the evidence before me, I find the relevant actions of Mr Potts in ceasing to attend Danley Construction were voluntary within the meaning of s629(1)(b) of the Act. I accept that he was distressed at the time, but he had made a conscious decision to not continue his work at Baytech Construction. His action in ceasing work was in my opinion “voluntary”.

35. In view of my decision that the act of Mr Potts in ceasing work was voluntary, it is necessary that I now give consideration to s 629(4) of the Act. As I have found that Mr Potts became unemployed due to his voluntary act, I now must consider whether his voluntary act was reasonable.

36.     I also make the observation that even though the funeral was held in Brisbane Mr Potts had, at the relevant time when he ceased employment, grounds to believe that the funeral service may be held in Townsville. His decision to cease work on 1 August 2007 would have enabled him to have sufficient time to drive to Townsville if the funeral service was in fact held in Townsville.  However, Mr Potts had no definite information that the funeral service was going to be held in Townsville.   In evidence he stated that he was advised to search the funeral notices in a Brisbane newspaper.  I can infer that Mr Potts appreciated that there was a possibility that the funeral service would to be held in Brisbane, as it later was.  I cannot be satisfied that it was reasonable for Mr Potts to cease to attend work at Danley Construction when he had no definite knowledge of where or when the funeral service was going to be held and when he had not completed an application form seeking leave to attend the funeral service.

DECISION

37.     I affirm the decision under review.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD Senior Member

Signed:         ..................[Sgd]..............................................................
  Research Associate

Date/s of Hearing  2 April 2008
Date of Decision  24 April 2008
Applicant  Mr G Potts himself
Respondent  Mr M Amundsen, Departmental Advocate