SHARON PRIEM and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 737

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 737

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4855

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SHARON PRIEM

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal MS N BELL,Senior Member

Date25 September 2009

PlaceSydney

Decision The decision under review is affirmed. 

........................SGD......................

Ms N Bell, Senior Member  

CATCHWORDS

SOCIAL SECURITY – newstart allowance – eight week non-payment period – misconduct as a worker – decision under review is affirmed.

Social Security Act 1991 – sections 629, 630

Motor Accidents Compensation Act 1999

Secretary, Department of Employment and Workplace Relations and Payne [2007] AATA 1745

REASONS FOR DECISION

25 September 2009 MS N BELL,Senior Member          

1. The Secretary made a decision to apply an eight week non-payment period on Ms Sharon Priem, following the circumstances of her unemployment after working with the New South Wales Teachers’ Credit Union for some five years. The period of non-payment is based on the Secretary’s, and the Social Security Appeals Tribunal’s, view that Ms Priem was dismissed for misconduct, which, according to section 629 of the Social Security Act 1991 (the Act), gives rise to an eight week non-payment period for Newstart Allowance.  The circumstances, not in dispute, of that alleged misconduct are as follows.

2.      Ms Priem commenced employment with the Credit Union on 27 April 2004, initially as a receptionist and later as an insurance officer in the Insurance Department in May 2006.

3.      On Friday 6 June 2008, Ms Priem asked another Credit Union staff member to purchase compulsory Third-Party Insurance (a CTP green slip) so she could register her motor vehicle.  This request was in accordance with Credit Union policy which requires all personal business to be conducted through another staff member.  On that day the collecting officers, who process claims for payment of green slips, were not in the office and payment for Ms Priem’s CTP green slip was not processed on Friday 6 June 2008.

4.      On the same day, Friday 6 June 2008, Ms Priem gave her daughter cash to register her vehicle and her daughter paid for the registration online using her credit card.

5.      On Tuesday 10 June 2008, after the Queen's Birthday long weekend, Ms Priem considered that she had insufficient funds in her Credit Union account to cover the cost of the CTP green slip and asked the same officer who had issued the CTP green slip to cancel it.  This was done.  However, the registration of her motor vehicle was not cancelled.  On Wednesday 18 June 2008, Ms Priem purchased another CTP green slip for her vehicle.

6.      On 1 July 2008, Ms Priem was dismissed from her employment with the Credit Union and her employment separation certificate of that date stated that she was dismissed due to misconduct and breach of company policy and procedure.

7.      On the basis of this, Centrelink decided that Ms Priem had been dismissed from her employment due to misconduct and that an 8 week non-payment period should be applied to her.  Following this decision, Ms Priem made a claim for unfair dismissal which was settled on 26 September 2008, by deed of settlement between  Ms Priem and the Credit Union and provided that the Ms Priem could resign from her employment with effect from 1 July 2008 and that she was to receive two weeks pay.

8.      Ms Priem contends that she was not dismissed because of misconduct, but rather, in accordance with the deed of release, she resigned.  Centrelink contends that, notwithstanding the terms of the deed of release, in substance Ms Priem was unemployed due to her misconduct.

Issues

9.      Subsection 629(1) of the Act provides that:

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

…

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

(c)is unemployed due to the person’s misconduct as a worker…

…

10.     Subsection 629(4) of the Act provides that paragraph 629(1)(b) does not apply if the Secretary is satisfied that the person‘s voluntary act is reasonable.

11.     The issues to consider are therefore:

i)         whether Ms Priem is unemployed due to misconduct as a worker; and

ii)        if not, whether she is unemployed due, either directly or indirectly, to a voluntary act; and

iii)       if so, whether the voluntary act was reasonable.

Is Ms Priem unemployed due to misconduct?

12.     Ms Priem steadfastly maintains that she committed no misconduct.  She stated emphatically that everything she did was above board and that she had no intention to deceive.  She said that everything she did was in accordance with policy.  She said she asked another staff member to purchase a CTP green slip for her - in accordance with policy - and she asked the same person to cancel the policy for her.  Ms Priem said the officer never asked her for proof of a CTP green slip from another insurer.  Ms Priem said the concern was simply to avoid having a cheque bounce and her Credit Union account being overdrawn.

13.     Ms Priem was critical of the Credit Union’s treatment of her and insisted that she had never been given any instruction on the cancellation of insurance in those circumstances.  She considered that she had made an error and she should have been given some counselling or guidance, but she did not deserve to be dismissed.  She said that the people involved were out to get her.

14.     Ms Priem said she understood that a car cannot be registered without a CTP green slip, but considered that, even after she had cancelled her CTP greenslip, her car was still registered.  Her evidence was that she had driven her car on a few occasions before she finally purchased another CTP green slip.  She said she didn’t think a person could cancel the registration of a car.  She said she knew that without a CTP green slip she was uninsured and that if she had an accident she could be personally liable.

15.     In relation to the deed of release signed by her, she said her hands were tied and she had no option but to sign.  She was critical of her solicitor who, she considered, had led her to believe she would be able to “take the credit union to the cleaners.”

16.     The Secretary referred me to the provisions of the Motor Accidents Compensation Act 1999 that provide it is an offence to drive a motor vehicle that is not insured (section 8) and that a motor vehicle must not be registered unless a certificate of insurance is produced (section 12).

17.     I was also referred to the Personnel Policy of the Credit Union which includes among the responsibilities of staff the responsibilities to maintain and implement policy in relation to the Credit Union’s moral and legislative requirements, not to do anything or engage in any conduct that may bring the Credit Union into disrepute, to comply with the Credit Union’s policies and operating instructions and to keep their accounts in order.  Breach is considered, in the Policy, to amount to misconduct.

18.     I was also referred to the Guide to Social Security Law, which states, at Chapter 1.1.U.40 Unemployed due to misconduct (NSA,YA):

Definition

For the purposes of NSA and YA, unemployment due to misconduct refers to a situation in which a person contributes to their own unemployment through their own action or inaction at work. A job seeker who has been dismissed for misconduct can incur an 8-week non-payment period from the date of unemployment.

A person is regarded as becoming unemployed through misconduct if they have been dismissed or given the option of resigning, as a result of an action such as:

● deliberate failure to produce/deliver a reasonable amount of work,

● unauthorised absences from duty without good reason,

● improper behaviour or practices, such as theft, assault or harassment of other employees or customers,

● actions that cause serious risk to the health or safety of other employees or customers, OR

● actions that threaten the reputation, viability or profitability of the business.

19.     At best, Ms Priem made a gravely serious error – and a very surprising one, given her admitted understanding of the significance of CTP green slips.  At worst, she obtained the advantage of having her car registered at a time when she did not possess the funds to pay for the mandatory CTP green slip and so should not, by law, have been able to register her car.  Whatever her state of mind, she was in breach of the law and of her obligation to her employer to not act unlawfully or engage in conduct to bring the Credit Union into disrepute.

20.     I note that Ms Priem was also in default on her Credit Union account and her credit card, amounting to a failure to keep her accounts in order.  I understand from the letter of the solicitors for the Credit Union dated 18 July 2008, to Ms Priem’s solicitors, that this failure (an instance of misconduct according to the Credit Union Personnel Policy) formed part of the background against which she was dismissed.

21.     In Secretary, Department of Employment and Workplace Relations and Payne [2007] AATA 1745 a case concerning the operation of section 629 of the Act, Deputy President Forgie said at paragraph 61:

“The transgression must be such that, in light of the contract, the nature of the work and any other relevant fact, the conduct is improper conduct.  If the contract of employment or relationship between employer and employee leads to the conclusion that it is very important, or perhaps vital, that the employee  meet certain standards of behaviour or exhibit certain qualities, those standards and qualities will be relevant in deciding whether a failure to show them amounts to misconduct.”

22.     I consider that the Personnel Policy is explicit in the expectation that employees will not engage in conduct that will bring the Credit Union into disrepute.  It is clear that do so is considered by the Credit Union to amount to misconduct.  That is explicitly stated in the Policy and that is what is stated on her separation certificate.  I consider it is an implied and essential term of any employment contract that an employee will not engage in conduct in their employment that is unlawful.  That is what Ms Priem did.  I therefore find that her conduct amounted to misconduct.

23.     I am not persuaded by Ms Priem’s argument that the effect of the deed of release is to negate that fact for the purposes of the operation of subsection 629 (1)(c) of the Act.  The relevant words in the subsection are “unemployed due to the person’s misconduct as a worker”.  There was misconduct at work, regardless of the terms of the deed of release.  That misconduct resulted in her dismissal.  I find that she became unemployed due to her misconduct as a worker.

24. It follows that, by the operation of section 629(1)(c), an eight week non- payment period should be applied.

decision

25.     I affirm the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Snr Member Bell

Signed:         ............................................sgd.......................................
  Associate: Felicia Daniele

Date/s of Hearing  26 August 2009
Date of Decision   25 September 2009
Solicitor for the Applicant          Self-Represented

Solicitor for the Respondent      Ms Raewyn Harlock, Legal Services and Procurement Branch