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

[2008] AATA 638

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 638

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1388

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHANNEN ROBERTS

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date22 July 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

RG Kenny
  Member 

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits & Allowances – newstart allowance – activity agreement completed by applicant – offer of suitable work to applicant by employment service provider – employment commenced – applicant voluntarily unemployed – no reasonable excuse – newstart allowance not payable for a period of 8 weeks – decision  under review affirmed.

Social Security Act 1991 ss 629, 630

Social Security (Reasonable Excuse) (DEWR) Determination 2006 s 4

REASONS FOR DECISION

22 July 2008 Mr R G Kenny, Member     

Background

1.      In September 2007, Shannen Roberts was in receipt of newstart allowance which is a form of income support payable in accordance with the terms of the Social Security Act 1991 (“the Act”). In accordance with a scheme under the Act, he was to be assisted in obtaining employment through the services of an employment service provider. This was Cadet Training and Employment Maroochydore (“Cadet”). In September 2007, Mr Roberts was referred for and commenced employment with Campbell’s Cash and Carry Pty Ltd (“Campbells”). On 5 November 2007, a Centrelink officer determined that Mr Roberts had voluntarily ceased his employment with Campbells without reasonable excuse. The officer imposed an 8 week non-payment period on Mr Roberts on the basis that his conduct constituted a serious failure under the Act. That decision was affirmed by an authorised review officer from Centrelink on 22 November 2007 and, on review, by the Social Security Appeals Tribunal (SSAT) on 26 February 2008.

Issues for Determination

2. It is not in dispute that Mr Roberts entered into an Activity Agreement (“the agreement”) with Cadet under the Act or that the agreement required him to do certain things including accepting all work referrals identified by Cadet between June and December 2007. It is also agreed that Mr Roberts commenced work with Campbells from 5 September 2007, that he last attended the place of employment on 9 October 2007 and that Campbells formally terminated his employment on 16 October 2007. The issue for determination is whether Mr Roberts had a reasonable excuse for not continuing with his employment with Campbells. Mr Roberts contended that he was not in breach of his obligations under the agreement or the Act in ceasing his employment. Mr Amundsen, for the respondent, submitted that the agreement signed by Mr Roberts detailed the consequences of his deciding not to continue in his employment with Campbells and that he would have been aware of this. He also submitted that Mr Roberts’ decision to cease that work was unreasonable.

Mr Roberts’ Evidence

3.      Mr Roberts gave the following evidence. 

4.      He is qualified and licensed to drive a fork-lift vehicle and believed that he had been engaged by Campbells as a storeman/fork-lift driver.  He was paid $15 per hour and worked 38 hours per week.  He was mainly involved in manually unloading palettes, stocking shelves and assisting customers with their groceries.  He completed an induction course in the use of the type of fork-lift vehicle on Campbells’ premises and drove it on one occasion at the request of a fellow worker.  On this occasion, the vehicle caused minor damage to the outer wall of a refrigeration unit.  He was dissatisfied with his rate of pay because he was not given a fork-lift vehicle allowance.  He attended work as required although he was, on occasions, a few minutes late in arriving.  This was because he sometimes had to walk to work. 

5.      On Tuesday 9 October 2007, Mr Roberts assisted in a staff training exercise involving the use of a fire extinguisher.  The fumes released at the time affected him because of his long-standing history of allergic reactions.  He remained at work that day but the symptoms intensified overnight and stayed with him until Sunday 14 October 2007.  He contacted his doctor on 10 October 2007 but was advised that he would be unable to obtain an appointment at that time, and that he should obtain non-prescription medication to assist him.  He eventually saw his doctor on 31 October 2007 as this was the earliest opportunity to do so.

6.      On 10 October 2007, Mr Roberts contacted Campbells and advised that he was too ill to attend work.  His girlfriend made a similar call on 11 October 2007 and he rang Campbells again on 12 October 2007 to advise that he was unable to come to work.  About 10 minutes later, he received a phone call from Cadet who advised that Campbells were dissatisfied with his non-attendance at work.  He explained to Cadet what had happened and advised Cadet that he did not want to return to work at Campbells because it was not appropriate that Campbells had contacted Cadet about his absences.  He believed that Campbells should have contacted him directly.  The officer from Cadet told him that she would find him another job with Australia Post.  He agreed that he wanted to do this and was aware that a higher rate of pay was available there because night-shifts were involved.  Because of this exchange about the alternative employment, Mr Roberts believed that he had no obligation to return to Campbells and did not do so on Monday 15 October 2007 or subsequently.  He had resolved in his own mind that he would not go back to Campbells though he had not been advised by Campbells or by Cadet, at that time, that his position had been terminated.  He had not had any interviews in relation to the Australia Post position. 

7.      Mr Roberts agreed that, in a statement dated 24 October 2007 and in evidence to the SSAT, he did not mention his contacting Campbells on 12 October 2007 and that he had said he was contacted by Cadet on 11 October 2007.  He said that these were errors and that the contacts were as outlined above.

Other Evidence

8.      In evidence was a Notification of Termination of Employment to Mr Roberts from Campbells.  It is dated 16 October 2007.  It refers to Mr Roberts’ unexplained absences from work and difficulties in contacting him.  It also nominates abandonment of employment by Mr Roberts as the reason for his termination.  Also in evidence was a Centrelink Employment Separation Certificate, completed by Campbells on 30 October 2007.  It refers to Mr Roberts’ voluntary cessation of work and the reason for termination as being his abandonment of the employment. 

9.      Mr Roberts’ medical practitioner, Dr Janice Madden, provided reports dated 31 October 2007 and 6 November 2007.  The first of these referred to a reaction to use of the fire extinguisher at work and described Mr Roberts as being unfit for work on 10 and 11 October 2007.  The second report describes him in that way for 12 October 2007. 

10.     Jennifer Nash is an assistant manager with Campbells and was employed in that capacity when Mr Roberts was working there.  She completed a letter, dated 14 July 2008, where she referred to Mr Roberts as having had “a lot of days off sick”; as having driven the fork-lift vehicle without authority on more than one occasion; and as having caused but not reporting damage while driving the vehicle.  She was aware of the incident involving the fire extinguisher on 9 October 2007.  She wrote that she received a phone call from his girlfriend on the following day and was advised that Mr Roberts would not be attending work on that day.  She wrote that, thereafter, no further contact was made by or on behalf of Mr Roberts with Campbells.  She also said that attempts to contact Mr Roberts by telephone had been unsuccessful as his phone appeared to have been switched off.

11.     Tanya Szatmary completed a report on 16 June 2008.  She is with the Human Resources section of Campbells.  She advised that notification of non-attendance at work was given on 10 October 2007 by Mr Roberts’ girlfriend and that there were no subsequent notifications by her or by Mr Roberts.  Ms Szatmary said that Mr Roberts was employed solely as a storeman and was not cleared to drive the fork-lift vehicle but had done so and thereby caused damage to property.  She said that he was constantly late for work and that he had been warned about this, about his attitude and about his personal presentation.  Ms Szatmary said that Mr Roberts’ employment was terminated on 16 October 2007 after a four day absence and no contact from him after 10 October 2007.

12.     In evidence was a File Note History from Cadet concerning Mr Roberts.  An entry, dated 15 October 2007, refers to attempts to contact Mr Roberts by SMS.  On the same day, a message from Campbells is referred to in terms that Mr Roberts’ position would be terminated on the following day if he had not contacted Campbells by then.  Another entry, dated 16 October 2007, records a phone call from Mr Roberts in which he advised that he was not going back to work at Campbells.  The reason recorded is that “they paid badly” and because “working full time was not for him”.  A further entry, dated 18 October 2007, refers to contact by Mr Roberts in which he advised that he was no longer working for Campbells because his hours had been reduced due to his allergy problems and in which he requested information about a referral to Australia Post.

Consideration

13. Under s 629(1)(b) of the Act, newstart allowance is not payable to a person for a period of 8 weeks if the person is unemployed due, either directly or indirectly, to his voluntary act. Where applicable, the non-payment period, under s 630(2) of the Act, is to commence on a day determined by Centrelink. In this matter, the date selected was 10 October 2007, the day after Mr Roberts’ last attendance at work. Under s 629(4) of the Act, s 629(1)(b) of the Act does not apply if the person’s voluntary act was reasonable.

14.     On the material before me, I am satisfied that Mr Roberts last presented for work with Campbells on 9 October 2007, that he made a decision, in the week ending 12 October 2007, not to continue in that employment and that this was a decision voluntarily made on his part.  I am also satisfied that, as a result of his decision and his non-attendance at work, his employment was terminated by Campbells on 16 October 2007.  My assessment of Mr Roberts’ reasons for ceasing work and of the reasonableness of his decision is influenced by the manner in which he gave his evidence and by the nature of that evidence.  His manner was aggressive and his evidence was characterised by a significant level of inconsistency. 

15.     Mr Roberts is reported in documents before me as providing a range of reasons for ceasing work with Campbells.  These include dissatisfaction with his rate of payment, failure to recognise his qualifications as a fork-lift operator, illness, annoyance at Campbells’ reporting his absence from work to Cadet, an unwillingness to undertake any full-time work, difficulties in travelling to work, reduction in his hours of work and an understanding that Cadet had arranged an alternative position with Australia Post.  He was also inconsistent in the details he provided concerning notification given to Campbells about his work capacity in the days following 9 October 2007.  At the hearing, for the first time, he said that he spoke with his employer on 12 October 2007.  The statement which he completed on 24 October 2007, within two weeks of the period, gave the latest contact as occurring on 11 October 2007.  That was also his evidence to the SSAT.  I am satisfied that Mr Roberts is an unreliable witness and I prefer the evidence of personnel of Campbells and Cadet to the extent that this evidence differs from that of Mr Roberts.

16.      Under s 629(1A) of the Act, a legislative instrument is to be determined which lists matters to be taken into account in deciding whether a person has a reasonable excuse for refusing or failing to accept a suitable offer of employment. The Act, in s 629(1B), also provides that the determination of whether or not a person had a reasonable excuse is not limited to those matters. The instrument is the Social Security (Reasonable Excuse) (DEWR) Determination 2006 (“the determination”).  It lists the following matters:

·the fact that the person is living in a non-permanent location on the streets or is using emergency accommodation or refuge at the time that the failure or refusal occurred; and

·the literacy and language skills of the person, if the person’s lack of such skills is significant; and

·any illness, impairment or condition of the person that requires frequent treatment, including any illness that is episodic or unpredictable in nature; and

·any cognitive or neurological impairment of the person; and

·any psychiatric or psychological impairment or mental illness of the person; and

·any drug or alcohol dependency of the person; and

·any unforeseen family or caring responsibilities of the person; and

the death of an immediate family member; and

·the person was released not more than 28 days before the person’s failure to comply with the Act.

17.     That list of matters relates to a consideration of reasons for failing to accept employment.  However, I am satisfied that these matters also have relevance to an evaluation of reasons for not continuing in employment.  I am satisfied that none of the nominated factors is applicable to Mr Roberts’ situation.  As to the illness-related factor, I have noted the reports of Dr Madden concerning Mr Roberts’ fitness for work.  However, these were completed well after the presentation and resolution of any symptoms and rely on Mr Roberts’s retrospective account of these.  In any event, they bespeak incapacity only until 12 October 2007 and provide no justification, on medical grounds, for non-attendance at work on 15 October 2007 or thereafter.  I have also noted Mr Roberts’ reference to a belief that he had been dismissed by 12 October 2007 and that an alternative position was available for him at Australia Post.  I do not accept his evidence on that matter but, even if he had such a belief, I am satisfied that it was not reasonable and, in that regard, note that he had not undergone any interviewing processes for that employment. 

18.     I am satisfied that Mr Roberts became unemployed with Campbells due to his voluntary action for which he had no reasonable excuse and that the 8 week period of non-payment of newstart allowance was appropriately imposed upon him by the respondent.

Decision

19.     The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed:         ............................[Sgd]....................................................
  Elizabeth Young, Research Associate

Date of Hearing  15 July 2008
Date of Decision  22 July 2008
The Applicant was self-represented
For the Respondent                  Mr M Amundsen, departmental advocate