Seymour and Secretary, Department of Employment
[2016] AATA 255
•21 April 2016
Seymour and Secretary, Department of Employment [2016] AATA 255 (21 April 2016)
Division
GENERAL DIVISION
File Number
2015/2112
Re
Noel Seymour
APPLICANT
And
Secretary, Department of Employment
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 21 April 2016 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Miss E A Shanahan, Member
SOCIAL SECURITY – provision of advances to workers whose employer has become insolvent or bankrupt – the entitlements guarantee scheme – application defective as copy of passport not certified – certified document allegedly sent within requisite timeframe – not received by the respondent – resent certified copy of passport received twelve days after statutory timeframe – no discretion to extend time or waive requirements – no provision of special circumstance clauses – decision affirmed.
Legislation
Evidence Act 1995
Fair Entitlements Guarantee Act 2012
Cases
Deputy Commissioner of Taxation v ABW Design and Construction Pty Ltd (2012) 291 ALR 127
Deputy Commissioner of Taxation v Manta’s on the Beach Pty Ltd [2012] FCA 417
Re DHLD and Executive Director, Social Security Appeals Tribunal (2010) 115 ALD 566
Re Paraponiaris and Secretary, Department of Employment [2015] AATA 895
Re Tirnova and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) 117 ALD 186
Scope Data Systems Pty Ltd v Goman as Representative of the Partnership of BDO Nelson Parkhill (2007) 70 NSWLR 176REASONS FOR DECISION
Miss E A Shanahan, Member
21 April 2016
Mr Seymour lodged his claim for advance payment under the Fair Entitlements Guarantee Act 2012 (FEG Act) on 18 December 2014. His employer, Whitehorse Furniture and Bedding Pty Ltd (Whitehorse Furniture) was determined to be insolvent on 19 March 2014 on appointment of the liquidator Grant Thornton. Mr Seymour’s employment with Whitehorse Furniture ended on 3 March 2014. His claim for advance was denied on 26 March 2015 on the basis his claim was not effective in accordance with the FEG Act.
Mr Seymour applied for an internal review of the decision on 31 March 2015. A delegate of the respondent affirmed the decision on 10 April 2015. Mr Seymour lodged his application for review by the Administrative Appeals Tribunal on 1 May 2015.
Mr Seymour was self-represented and the respondent, the Secretary, Department of Employment (the Department) was represented by Mr Lex Holcombe of HWL Ebsworth Lawyers. The hearing was to take place with both parties present and was initially set down for 2 February 2016, but due to a misunderstanding, Mr Seymour did not present. The matter was resumed on 1 March 2016 but on this occasion was conducted by telephone.
The Tribunal was provided with the documentation in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents, Exhibit R1). The only other evidence tendered was the witness statement of Katherine Anne Cooke, an employee of HWL Ebsworth Lawyers who had investigated the respondent’s mailroom activities and the handling of mail via a conversation with the mailroom clerk Mr Pegrem (Exhibit R2).
BACKGROUND TO THE APPLICATION
Mr Seymour was employed by Whitehorse Furniture and Bedding Pty Ltd as a store manager between 15 June 2009 and 3 March 2014. Prior to that he had conducted his own business as a furniture maker. The appointed liquidator Grant Thornton completed the documentation regarding Mr Seymour’s employment and he signed the document. However, Grant Thornton had asked Mr Seymour to continue working at Whitehorse Furniture in their employ while the winding up procedures were undertaken.
According to Mr Seymour, the documentation necessary for application for an advance under the FEG Act (which included the FEG Initial Contact with Insolvency Practitioner form, the entitlements guarantee application form, an outline of Mr Seymour’s entitlements as estimated by Grant Thornton and the Employment Separation Certificate issued by Centrelink) had all been completed by Grant Thornton. The advice regarding the estimated entitlements attracted before and after the appointment of the administrator was dated 7 March 2014 (that is, twelve days before the liquidators’ official appointment). Mr Seymour has stated that he signed the advance claim form but did not complete any of the details on the form nor did he date it.
It was not until Mr Seymour had completed his period of employment with Grant Thornton, from whom he states he has received a group certificate, that he lodged the application for the advance payment of entitlements in accordance with the FEG Act. Apparently, the other employees whose employment with Whitehorse Furniture terminated on 3 March 2014 also had their applications for advance payment completed by Grant Thornton. The applications were lodged and to Mr Seymour’s knowledge, all of those other employees had received the grant. Mr Seymour believes that they were all assisted by the liquidator in lodging the necessary paperwork.
As Mr Seymour was still working, albeit for Grant Thornton, he did not lodge his application for the advance until December 2014.
Mr Seymour’s application was received by the Department on 18 December 2014. The claim was accompanied by a letter from the liquidator, Grant Thornton addressed to the applicant, as well as the Employment Separation Certificate, a PAYG payment summary and a copy of Mr Seymour’s passport. The passport had not been certified as a true copy of the original document by an authorised person. Mr Seymour’s failure to have a copy of his passport certified appropriately resulted in his claim form being declared ineffective. By letter dated 19 December 2014, the Department advised Mr Seymour that his claim was not effective and he was instructed to provide a certified copy of his passport to prove his Australian citizenship at the time of his employment.
Mr Seymour claims that he had his passport certified by a local police officer on 26 January 2015. Mr Seymour’s wife, Martina Seymour then posted the certified copy to the Department at the following address:
Department of Employment, GPO Box 9880 CANBERRA ACT 2601
The envelope containing the certified copy was placed in the post box opposite the local police station. Both Mr and Mrs Seymour have made Statutory Declarations attesting to their actions on 26 January 2015.
The respondent denies ever having received the certified copy of Mr Seymour’s Australian passport.
On 17 February 2015 the Department again wrote to Mr Seymour, informing him that his claim was not effective as proof of citizenship or permanent residency had not been certified. The Department also provided instructions for a second time to Mr Seymour as to how to certify original documents and a list of persons authorised to certify such documents.
On 26 March 2015 the Department made a determination that the applicant’s claim was incurably ineffective as the documents necessary to support the claim had not been provided. By 26 March 2015, the twelve month period in which an advance payment could be made had, in Mr Seymour’s case, expired by seven days. Mr Seymour was advised of this determination on 26 March 2015.
Mr Seymour apparently received this letter on 31 March 2015 and contacted the Department by telephone. He then faxed the certified copy of his passport to the Department with an accompanying letter which stated that he sent the earlier certified copy of his passport back to the Department, but this time he stated it was posted on 20 January 2015. The Department confirmed that they received this fax. Mr Seymour subsequently requested a review of the initial determination and this was conducted on 10 April 2015. The decision was affirmed.
EVIDENCE BEFORE THE TRIBUNAL
Mr Seymour gave his evidence by telephone and confirmed that he had sent the required certified copy of his passport to the Department in January 2015. He had not sent it certified mail as he had not been told do so and the respondent agrees that it was not mandatory for it to be registered. Mr Seymour provided the information regarding his fellow employees and that he had stayed on as an employee of Grant Thornton for a further six months after the liquidator was appointed. He further stated that Grant Thornton had provided him with the completed forms which he had signed in order to lodge his application for an advance under the FEG Act.
Mr Holcombe did not challenge Mr Seymour’s credit, nor did he challenge Mr Seymour’s claim that he had sent the necessary documentation in January 2015. The respondent could only say they had not received it.
Mr Seymour argued that to not send the documentation as requested could only be to his disadvantage, as on Grant Thornton’s estimations his accrued entitlements were $16,395.38.
RELEVANT LEGISLATION
The requirements for making an effective claim are set out in s 14 of the FEG Act which provides as follows:
Division 2—Claim for eligibility for advance
14 Making an effective claim
(1)To be effective for the purposes of this Act, a claim that a person is eligible for an advance for the person’s employment by an employer must:
(a)be in a form approved by the Secretary; and
(b)be accompanied by any documents required by the Secretary; and
(c)be made in accordance with subsection (2), and with subsection (3) if it applies.
(2)The claim must be made before the end of 12 months after the later of the following events:
(a)an insolvency event happens to the employer;
(b)the person’s employment by the employer ends.
(3)However, if the employer is or was a bankrupt, the claim must be or have been made before the discharge of the employer’s bankruptcy.
(4)Despite subsection (1), the claim is not effective for the purposes of this Act if it is made after a claim (the earlier claim) was made for a payment, under the scheme known as the General Employee Entitlements and Redundancy Scheme, connected with the person’s employment by the employer.
(5)Subsection (4) does not apply if the earlier claim was rejected because an insolvency event had not happened to the employer before the commencement of this section.
Statutory declaration
(6)A claim form approved by the Secretary may provide for verification by statutory declaration of statements in the claim.
The term insolvency event referred to in 14(2)(a) is defined in s 5 of the FEG Act as:
5 Definitions
In this Act:
insolvency event: an insolvency event happens to an employer of a person
(a)when a liquidator of the employer is appointed (provisionally or otherwise) under the Corporations Act 2001; or
(b)when the employer becomes a bankrupt under the Bankruptcy Act 1966; or
(c)if the person is or was employed for a partnership by 2 or more of the partners—at the first time an event described in paragraph (a) or (b) happens, or has happened, to all of the partners by whom the person is or was employed.
Section 160 of the Evidence Act 1995 (Cth) (the Evidence Act) deals with postal articles which are presumed to have been received and states:
Division 3—Matters relating to post and communications
160 Postal articles
(1)It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.
(2)This section does not apply if:
(a)the proceeding relates to a contract; and
(b)all the parties to the proceeding are parties to the contract; and
(c)subsection (1) is inconsistent with a term of the contract.
(3)In this section:
working day means a day that is not:
(a)a Saturday or a Sunday; or
(b)a public holiday or a bank holiday in the place to which the postal article was addressed.
Other relevant requirements
The claim form for advances under the FEG Act provides instructions in relation to question B5 which lists acceptable forms of evidence and states:
If you have answered ‘Yes’ at question B5 or B5.1, acceptable evidence of your citizenship or residency status includes a copy of at least one of the following categories of documents that has been certified as a ‘true copy’ of the original document by a person authorised to do so:
Øan Australian passport issued prior to the end of your employment (or that indicates you were born in Australia)
Øa full Australian birth certificate
Øan Australian citizenship certificate issued by the Australian Government prior to the end of your employment
Øa document of identity issued by the Australian Government prior to the end of your employment
Øan appropriate Australian visa issued prior to the end of your employment which may be recorded in your passport
Øa certificate of evidence of resident status issued by the Department of Immigration and Border Protection prior to the end of your employment (or confirming from what date the person held the resident status)
Øwhere appropriate, for the purpose of proving you hold a special category visa, a New Zealand passport
SUBMISSIONS
Mr Holcombe submitted that the FEG Act required that an effective claim must be made and that such a claim required the provision of documentation to be received by the Department within a twelve month period, which in this case expired on 19 March 2015. Mr Holcombe advised that the FEG Act did not provide any discretion to extend the time requirements or to waive any of the requirements. The FEG Act makes it clear that these requirements are mandatory in nature. While the respondent did not refute Mr Seymour’s claim that he had forwarded the certified copy of his passport in January 2015, it had not been received by the Department until a further copy was faxed on 31 March 2015, which was outside the time requirement. In light of this fact, the Department contended the decision under review should be affirmed.
Mr Seymour did not make a formal submission.
TRIBUNAL’S DELIBERATIONS
Mr Seymour appears to have done himself a disservice by delaying his application for an advance payment under the FEG Act until 18 December 2014, with his employment with Whitehorse Furniture having ceased on 3 March 2014. After 3 March 2014, he was employed by the liquidator Grant Thornton for six months or more to assist with the winding up of the insolvent company on behalf of his creditors, of which Mr Seymour was one.
The Tribunal cannot be certain who lodged the application. Mr Seymour has stated all he did was sign his name to the claim form which was completed by the liquidator. A copy provided to the Tribunal is signed by Mr Seymour but not dated. The Employment Separation Certificate is signed by Mr Steven Dixon of Grant Thornton and it is not dated. Other documentation, such as Mr Seymour’s PAYG group certificate form was signed by Mr Dixon and dated 7 March 2014, as was the letter to Mr Seymour advising him of his accrued entitlements should liquidation occur in the future. The company was liquidated on 19 Mach 2014.
The delay in lodging the claim reduced the time available to Mr Seymour to correct any deficiencies from the twelve months provided legislatively, to three months.
On receipt of the claim lodged on 18 December 2014, the Department recognised the deficiency in terms of the mandatory requirement for certified proof of Australian citizenship and Mr Seymour was informed by letter dated 19 December 2014. Mr Seymour acknowledges he received this letter and after what would appear to be some delay, he had a copy of his passport certified by a police officer at Knox Police Station on 26 January 2015. Mrs Seymour then posted the certified copy by ordinary mail to the Department of Employment, GPO Box 9880, Canberra ACT 2601. It is agreed that the actual branch of the Department to which it should be assigned was not indicated on the envelope. It is said that the letter was posted in the post box opposite the police station. The Department did not receive this document.
The respondent does not challenge Mr and Mrs Seymour’s statutory evidence regarding their actions in late January 2015. The Department has, however, produced evidence of the mail handling procedures in the Department of Employment’s mail room where on average 400 to 500 standard envelopes are received daily. The Department also provided data for the FEG Hotline Team, who are responsible for processing hard copy mail relating to FEG and distributing it throughout the branch, as well as entering data into the electronic eFEG data based record. Overall, the assessment of the departmental mail handling system was favourable (Exhibit R2).
Section 160 of the Evidence Act raises a rebuttable statutory presumption that an appropriately stamped letter will be delivered on the fourth working day after having been posted. Section 163(1) provides that letters from a Commonwealth agency to a specified address will have been sent five business days after the date on which it was prepared. The Tribunal is not bound by the Evidence Act and it is noted that there is no requirement that claimants provide the necessary data required by the FEG Act by registered mail.
In Re Tirnova and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) 117 ALD 186 the Tribunal found (at 190) that:
It is a matter of common knowledge that many people in the community have had the experience of receiving wrongly-delivered or wrongly-addressed postal articles or having articles they are expecting not arrive. The existence of T5 [data relating to Centrelink’s handling of mail] does little to negative that possibility in this case.
Similarly, in Deputy Commissioner of Taxation in the matter of Manta’s on the Beach Pty Ltd v Manta’s on the Beach Pty Ltd [2012] FCA 417 Logan J determined the presumption was rebutted, despite the evidence of Australia Post delivery times, as there was significant doubt amounting to his Honour being satisfied that the documents were not received at all by Manta’s on the Beach. In Deputy Commissioner of Taxation v ABW Design and Construction Pty Ltd (2012) 291 ALR 127 Logan J also considered the situation where the Deputy Commissioner of Taxation had sent an envelope addressed to the company, wherein the postcode and some of the details of the address had been obscured by a stamp. Logan J concluded the mail was not delivered.
The Tribunal notes that the Tirnova matter was decided in August 2010 in relation to events occurring in 2006. The events in Manta’s on the Beach occurred in 2011 and those in ABW Design also occurred in 2011. It is well known, publicised and reported in the daily press that Australia Post’s delivery mail services have changed in the last two to three years and that in 2015 they reduced in number to approximately three times a week. As of January 2016, householders have been advised in writing by Australia Post that regular mail carrying a one dollar stamp will take up to six days or more to be delivered. This is clearly contrary to the time limits declared in the Evidence Act. The Tribunal notes that Mr Seymour had been offered communication via email but declined because he did not regularly check his emails, or presumably did not use that service.
In relation to the provision of the required data which Mr Seymour said was sent on 26 January 2015, the Tribunal finds that the presumption is rebutted.
It is noted that the Department sent Mr Seymour further advice that his claim was not effective by letter dated 17 February 2015. No evidence has been provided that this letter was received by Mr Seymour, although the Tribunal notes that the wording of this letter (Exhibit R1) is almost identical to that of the advice of 19 December 2014 (Exhibit R1). It is possible that in the timeframe between the posting of the certified copy of Mr Seymour’s passport on 26 January and the preparation of the letter on 17 February 2015, the letters had crossed in the mail. Regardless of this possibility, Mr Seymour did not respond to the letter of 17 February 2015.
The Tribunal has made findings in regard to the rebuttal of ss 160 and 163(1) of the Evidence Act. Despite these findings, it is quite clear on the construction of the FEG Act, as determined in Re Paraponiaris and Secretary, Department of Employment [2015] AATA 895, that the mandatory nature of the requirements, in particular the prefatory words of s 14(1) of must, as well as the lack of any express or implied power to extend the time limit beyond twelve months which expired on 19 March 2015 and the absence of the provision of special circumstances, that Mr Seymour’s claim was out of time and ineffective. The decision under review must be affirmed.
The Tribunal affirms the decision under review.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member [sgd]........................................................................
Associate
Dated 21 April 2016
Date of hearing 1 March 2016 Applicant By telephone Advocate for the Respondent Lex Holcombe Solicitors for the Respondent HWL Ebsworth Lawyers
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