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

[2008] AATA 701

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 701

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2824

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

Applicant

And DAVID RICHARDS

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date8 August 2008

PlaceBrisbane (heard in Perth)

Decision The Tribunal sets aside the decision under review and decides in substitution that an eight week non-payment period should apply to the respondent’s newstart allowance.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – Participation failure – Non-payment period – Whether applicant refused “offer of employment” – Applicant provided with complete offer which he then refused – Whether applicant refused without reasonable excuse – Applicant’s refusal not reasonable excuse as it is a common requirement to provide police clearance to prospective employer – Decision set aside

Social Security Act 1991 (Cth), s 629(1)(d)

REASONS FOR DECISION

8 August 2008 Senior Member Bernard J McCabe         

1. Section 629(1)(d) of the Social Security Act 1991 says an unemployed person in receipt of newstart allowance commits a serious “participation failure” if he or she refuses or fails “to accept a suitable offer of employment” without reasonable excuse. A serious “participation failure” may lead to Centrelink imposing a non-payment period; that is, a suspension of his or her payments for a defined period. This case turns on what is meant by the expression “offer of employment”. 

2.      The case has arisen after Mr David Richards, the respondent, did not take up what the Secretary to the Department of Education, Employment and Workplace Relations says was an “offer of employment” made in October 2006. Mr Richards was unemployed at the time and in receipt of newstart allowance. The Social Security Appeals Tribunal (“the SSAT”) decided Mr Richards had not received an “offer of employment” in the relevant sense. In those circumstances, the SSAT concluded Mr Richards could not be subject to the imposition of a non-payment period.

3.      The Secretary has asked the Tribunal to reconsider the matter.

The facts

4.      Mr Richards was previously employed as a shipping clerk, although he was qualified to work as a water reticulation engineer. He became unemployed and received newstart allowance. He was required to sign a declaration at the time of his application stating that he was willing to work and would take reasonable steps to find paid employment. He began a relationship with Bridging the Gap (“BTG”), an “Employment Service Provider” that assists unemployed people to find work. He entered into an Activity Agreement which set out his obligations to seek work. The agreement included a warning that newstart payments might be suspended for eight weeks if he refused a suitable job offer without good reason. A copy of the agreement is set out in Exhibit 1, at folio 103.

5.      The respondent said he routinely arrived at the offices of BTG at 9am on Wednesdays where he would scan the newspaper for job advertisements and use the internet. He attended a job interview at the offices of Hugall & Hoile Irrigation Company on the morning of 18 October 2006 that had been arranged by BTG. Mr Richards suggested he was not given sufficient notice of the interview; he said his case officer apparently only thought about sending him along for the interview when she saw him in the office. The case officer, Ms Lyons, said Mr Richards had plenty of notice. In any event, he walked to the job interview which was conducted by Mr Velenski.

6.      Mr Velenski gave evidence at the hearing. He said he interviewed Mr Richards for a counter sales position. Mr Velenski said he explained what the job entailed. He says he discussed the rate of pay. He said he did not specifically recall discussing the hours of work but he did recall the respondent mentioning he had commitments on some weekends that might limit his availability. Mr Velenski added that he invariably discussed the hours of work with applicants at job interviews. He also said he specifically mentioned the need for the successful applicant to obtain a police clearance. Mr Velenski testified that it was standard practice to confirm an applicant did not have a police record given the job required the successful candidate to handle cash and valuable property. Subject to the police clearance being obtained, Mr Velenski says he was content to offer Mr Richards the job. He said he either made the offer on the spot at the conclusion of the interview or shortly thereafter.

7.      The respondent tells a different story about the interview. He said Mr Velenski appeared to be disorganised and did not have any of the information he requested about hours of work or rates of pay. Mr Richards said he was under the impression that the interview was merely a first step in a more extensive process that would not be complete until he was provided with the information he required.

8.      Ms Lyons says she had met with Mr Richards to discuss the position. According to her evidence, the discussion seems to have taken place in advance of the interview. She said in her evidence that she thought the job paid award rates but encouraged Mr Richards to confirm that information with the employer. She also recalls telling Mr Richards that the job was a full-time position and that weekend work might be required. She says she also encouraged Mr Richards to discuss any difficulties that he might have working on weekends given his commitments as an officeholder in a tennis club that met on weekends.

9.      BTG was advised that Mr Richards had been offered a position with Hugall and Hoile at some point soon after the interview. Ms Lyons and her supervisor delivered a note containing the news to Mr Richards’ home on 23 October. The note included details of the start-time on the following day and the uniform requirements.

10.     Mr Richards attended the offices of BTG the following morning before he was due to start work. He raised his concerns about the requirement to obtain a police clearance. He insists he did not refuse outright to obtain a police clearance, but he was clearly upset at the suggestion he should do so. At some point during the course of that conversation, his reluctance to obtain a clearance apparently became an outright refusal. In any event, Ms Lyons telephoned Mr Velenski to tell him of Mr Richards’ concerns. Mr Velenski refused to waive the requirement and told Ms Lyons to tell Mr Richards that the job offer was withdrawn. Mr Richards said he approached Mr Velenski later that day at his office to see if anything could be done, but Mr Velenski was no longer interested.

11.     I did not find Mr Richards to be a persuasive witness. Ms Lyons testified that Mr Richards was not a cooperative client. She said he was only interested in particular types of work. His tendency during the hearing to offer gratuitous criticism of the professionalism of BTG’s operations and his comments about the sort of work he was used to doing tended to confirm the impression I formed that he regarded work at Hugall and Hoile as beneath him. I accept Ms Lyons was a truthful witness who gave her evidence in a forthright way. I also accept the evidence of Mr Velenski who has no reason to prevaricate. In the circumstances, I prefer the evidence of both of them to that given by Mr Richards where that evidence conflicts.

The issue

12.     The outcome in this case turns on whether Mr Richards could be said to have received an “offer of employment”. The SSAT concluded Mr Richards had not refused an offer of employment because the employer had not made him aware of the hours of work or the rates of pay. The SSAT also pointed out that the offer was in any event withdrawn while the parties were talking about whether or not Mr Richards was required to get a police clearance.

13.     It will be apparent from my discussion of the evidence that I take a different view of the facts. I accept the evidence of Mr Velenski and Ms Lyons that rates of pay and hours of work were discussed. I also accept that Mr Velenski had told Mr Richards at the interview that a police clearance was required. Whether or not the formal offer was made at the conclusion of the interview or on 23 October, I am satisfied a complete offer of employment was on the table before Mr Richards was due to start work on the morning of 24 October. The attempt by Mr Richards to renegotiate the requirement that he obtain a police clearance amounts to a rejection of the offer. Mr Velenski’s oral advice to BTG that the employer would “withdraw” the offer was merely an acknowledgement that the company’s offer of employment had been rejected by Mr Richards.

14.     There is one further issue. Was the requirement that Mr Richards obtain a police clearance a reasonable one? If it was not a reasonable requirement, Mr Richards would have a reasonable excuse for refusing the offer that I have found was made to him.

15.     I confess to some initial surprise that such a requirement could be imposed in relation to a position like the one offered to Mr Richards. Ms Lyons indicated it was a common requirement, and Mr Velenski said it was a standard policy at Hugall and Hoile where employees handled cash and expensive equipment. Given Ms Lyons obviously has extensive experience in the job market, I accept the requirement was a common and reasonable one in the absence of evidence to the contrary.

Conclusion

16.     The decision of the SSAT is set aside. This Tribunal decides in substitution that an eight week non-payment period should apply to the newstart allowance of Mr Richards.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:...................................[Sgd]...........................................
  Michael Buckingham, Associate

Date of Hearing  15 May 2008
Date of Decision  8 August 2008
Advocate for the applicant        Mr A Holt, Centrelink      
Respondent was self-represented