Starks and Secretary, Department of Education, Employment and Workplace Relations
[2011] AATA 178
•21 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 178
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1803
GENERAL ADMINISTRATIVE DIVISION ) Re ANGELA LOUISE STARKS Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member K Bean Date21 March 2011
PlaceAdelaide
Decision The decision under review is affirmed.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – Newstart allowance – Unemployment as a result of a voluntary act – Whether voluntary act reasonable – Whether grounds to end eight week non-payment period early – Commencement of non-payment period – Decision under review affirmed.
Social Security (Administration) Act 1999 ss 42A, 42S, 131, 142, 145, 188
Social Security Act 1991 ss 14A(1), 14A(7)Administrative Appeals Tribunal Act 1975 ss 41(2), 43(5A), 43(5C)
Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988
Re Secretary, Department of Family and Community Services and Broadhead [2003] AATA 663
Re Adams and Secretary, Department of Family and Community Services [2004] AATA 846
Re Duncan and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 943
Re Roberts and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 829
Re Zimmy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 7
Re Department of Family and Community Services and Foley (2002) 69 ALD 751
Re Florenca and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 447
Re Secretary, Department of Education, Employment and Workplace Relations and Kliszka [2011] AATA 58REASONS FOR DECISION
21 March 2011 Senior Member K Bean introduction
1. The applicant, Ms Starks, was employed in an administrative capacity by CarersLink Barossa and Districts Inc (CarersLink) from 1 August 2006 to 4 February 2010. The position was part-time and her hours fluctuated in part due to funding constraints. Particularly during the earlier period of her employment, she appears to have enjoyed her role and performed it successfully.
2. In late 2009 however, it became apparent that due to funding constraints her hours would be reduced from 24 per week to 15 per week commencing in February 2010. Discussions then ensued between Ms Starks and the managers of CarersLink as to precisely how her hours were to be structured. Ms Starks felt that the hours should be worked over three days, whereas those senior to her thought it would be preferable for the hours to be worked over four days. It was against this background, and in other circumstances to be discussed in more detail later in these reasons, that Ms Starks tendered her resignation from CarersLink with effect from 4 February 2010.
3. Ms Starks subsequently applied for Newstart Allowance (NSA). Having investigated the circumstances in which she became unemployed however, on 16 February 2010 Centrelink determined that Ms Starks had voluntarily become unemployed without reasonable excuse, and that an eight week non-payment period would be imposed on her NSA. On 16 March 2010, that decision was affirmed by an Authorised Review Officer (ARO) and on 21 April 2010 the ARO’s decision was affirmed by the Social Security Appeals Tribunal (SSAT).
4. Ms Starks has now applied to this Tribunal for review of the decision of the SSAT.
legislation and policy
5. Section 42S of the Social Security (Administration) Act 1999 (the Administration Act) sets out some of the circumstances in which a participation payment (which includes NSA[1]) is not payable to a person. That provision relevantly provides as follows:
[1] s 42A, Administration Act
“42S Unemployment resulting from a voluntary act or misconduct
(1) A participation payment is not payable to a person for the period mentioned in subsection (3) if the Secretary determines that:
(a) the person is unemployed as a result (whether direct or indirect) of a voluntary act of the person; or
(b) the person is unemployed as a result of the person's misconduct as an employee.
Note: The Secretary may continue the participation payment pending the outcome of an application for review (see sections 131 and 145 of the Administration Act).
Limitations on determination
(2) Despite paragraph (1)(a), the Secretary must not make a determination under that paragraph if the Secretary is satisfied that the voluntary act was reasonable.
Period of non‑payment
(3) The participation payment is not payable to the person for the period (the unemployment non‑payment period ) of 8 weeks beginning on:
(a) the day that the person becomes unemployed as a result of the person's voluntary act or misconduct; or
(b) if the person is receiving a participation payment at the time of the voluntary act or misconduct--the first day of the first instalment period that begins after the day the Secretary makes the determination, if the Secretary considers that day is more appropriate than the day mentioned in paragraph (a).
Note 1:The Secretary may end an unemployment non‑payment period under subsection (4).
Note 2: For the day the Secretary makes the determination, see section 42Y.
Ending unemployment non‑payment periods
(4) The Secretary may end a person's unemployment non‑payment period if:
(a) the Secretary determines that serving the unemployment non‑payment period would cause the person to be in severe financial hardship; and
(b) the person is in a class of persons specified by legislative instrument under subsection (5).
Note: For in severe financial hardship see subsection 14A(7) of the 1991 Act.
(5) For the purposes of subsection (4), the Secretary may, by legislative instrument, specify a class of persons.”
6. Further, the Secretary has issued a Determination pursuant to s 42S(5), which is entitled Social Security (Administration) (Ending Unemployment Non-payment Periods – Classes of Persons) (DEEWR) Specification 2009 (No 1). Paragraph 4 of that determination sets out the relevant categories of person as follows:
“4 Specification of classes of persons
(1)For paragraph 42S (4) (b) of the Act, the following classes of persons are specified:
(a)persons who have significant family and caring responsibilities, including persons with a dependent child;
(b)persons who have an illness, impairment or condition that requires treatment, and who cannot afford the treatment after meeting their essential expenses;
(c)persons who have a cognitive, neurological, psychiatric or psychological impairment or mental illness that has been established by medical evidence;
(d)persons who do not have access to safe, secure and adequate housing, or are using emergency accommodation or a refuge.
(2)Without limiting paragraph (1) (d), a person is taken not to have access to safe, secure and adequate housing if:
(a) the housing to which the person has access:
(i) damages, or is likely to damage, the person’s health; or
(ii) threatens or is likely to threaten the person’s safety; or
(iii)does not provide the person with access to a reasonable level of personal amenities or the economic and social support that housing normally affords; or
(b)in the circumstances, the adequacy, safety, security or affordability of the housing to which the person has access is adversely affected or may be adversely affected; or
(c)the person does not have a right to remain, or a reasonable expectation of being able to remain, in the housing to which the person has access.”
7. The phrase “in severe financial hardship” is defined in s 14A(7) of the Social Security Act 1991 (the Act) as follows:
“14A Social security benefit liquid assets test definitions
…
(7)For the purposes of Division 3A of Part 3 of the Administration Act, a person is in severe financial hardship if the value of the person’s liquid assets does not exceed the person’s maximum reserve.”
The maximum reserve is defined as $2,500 in s 14A(1) of the Act.
8. In terms of applicable policy, the Guide to Social Security Law (the Guide) also relevantly states (at 3.1.13.80):
“Voluntary unemployment
The rationale for precluding people from payment if they are voluntarily unemployed is the community expectation that a person who chooses to leave employment without a good reason should not expect financial assistance from the community. However, the preclusion period does not apply if the voluntary act was reasonable or if the work was unsuitable for the person.
In determining whether the work was suitable (1.1.S.410), the delegate must consider the factors listed in the legislation. In deciding whether the voluntary act was reasonable, the delegate should consider, on a case-by-case basis, all relevant issues presented, including claims of sexual harassment, bullying and unsafe work conditions, any unlawful activity by an employer, as well as the job seeker’s personal circumstances. Claims by a job seeker that the work they were doing was unsafe, or that unreasonable demands or constraints were placed upon them by their supervisor, need to be assessed against what is reasonable and appropriate given the nature of the work and relevant industry standards.”
issues
9. The issues for my determination accordingly are:
(a) whether Ms Starks is unemployed as a result of a voluntary act;
(b) if so, whether that act was reasonable; and
(c)if not, whether there are grounds for ending the non-payment period early.
10. I propose to address each of these issues in turn, by reference to the evidence before me and the arguments of the parties.
is ms starks unemployed as a result of a voluntary act?
11. There was no dispute between the parties that Ms Starks is and has been unemployed as a result of a voluntary act on her part, namely her resignation from CarersLink on 4 February 2010. While Ms Riley contended that Ms Starks’ employment situation had become untenable and that she effectively had “no option” but to resign, she did not seriously contend that Ms Starks' resignation was not “voluntary”. In any event, I am satisfied that Ms Starks’ resignation was a voluntary act on her part, and that it would have been open to her to remain employed with CarersLink had she chosen to do so.
was ms starks’ decision to resign reasonable?
12. Ms Riley contended that Ms Starks’ resignation was reasonable in all the circumstances. She submitted that Ms Starks' resignation resulted in part from the stress which had been imposed upon her by her employer. She contended that Ms Starks had come to feel that she was not a valued employee and that she had been subjected to a subtle form of bullying, in particular as a result of work being taken away from her. Ms Riley submitted that the management at CarersLink had ceased to be supportive of Ms Starks and that she effectively had little option other than to resign. Further, she submitted that Ms Starks genuinely believed that the proposed change in her hours was untenable and would make it impossible for her to do the job she was required to do.
13. Ms Riley submitted that the applicable test was a subjective one, relying upon the Federal Court decision in Secretary, Department of Employment and Workplace Relations vReal [2007] FCA 988. She also relied upon a number of Tribunal decisions in support of her contentions, including Re Secretary, Department of Family and Community Services and Broadhead [2003] AATA 663, Re Adams and Secretary, Department of Family and Community Services [2004] AATA 846 and Re Duncan and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 943. She also contended that as the imposition of a non-payment period was punitive or a “quasi penal” measure, particular care must be taken in determining whether its imposition was justified.
14. As to whether the applicable test is a subjective or objective one however, in my view the authority cited by Ms Riley does not support the proposition that the test is a subjective one. Having regard to the terms of the provision and its application in other matters, it is clear in my view that the test to be applied is an objective one, namely, whether it was objectively reasonable for the employee to voluntarily end their employment, taking into account their state of mind at the time[2].
[2] See, for example Re Roberts and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 829, at [8]; Re Zimmy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 7, at [6].
15. Further, taken as a whole, in my view the evidence does not support the proposition that Ms Starks was subjected to any serious mistreatment in her workplace or that her position with CarersLink had become untenable. Before setting out my conclusions in more detail however, I propose to first discuss the evidence given at the hearing and which is otherwise before me. I will then proceed to analyse that evidence by reference to some of the authorities referred to by Ms Riley, and some other relevant authorities.
The evidence
16. As referred to above, Ms Starks commenced her employment with CarersLink in August 2006, at the Kadina office. In April 2009, Ms Heidi Jamieson was employed as the Respite Co-ordinator for CarersLink at Kadina and about six months later, she also became the manager of the Kadina office.
17. Although they initially got on well, it appears that tensions developed between Ms Jamieson and Ms Starks and Ms Jamieson took a less favourable view of Ms Starks’ overall performance than had been taken by the previous manager. In addition, toward the end of 2009 it became apparent that due to funding constraints, Ms Starks’ hours would need to be reduced from 24 per week to 15 per week from February 2010.
18. It was in this context that on 4 December 2009 Ms Jamieson arranged a meeting with Ms Starks, at which she sought to discuss with Ms Starks issues relating to her performance, prior to a formal performance appraisal to take place in January 2010. It appears that Ms Starks was surprised by this and to some extent felt criticised by Ms Jamieson during this meeting.
19. During that meeting, the topic of how Ms Starks’ new hours would be configured arose. Ms Jamieson apparently informed Ms Starks that it was currently proposed that her 15 hours would be worked over four days, that is three hours on each of Monday, Tuesday and Wednesday and six hours on a Thursday. Ms Starks apparently expressed disquiet about this since she could not see it working successfully. She suggested alternatively that it would be preferable for the hours to be worked over three days, with five hours on each day.
20. The next significant event which occurred was that on 20 January 2010, Ms Starks’ performance appraisal was conducted by Ms Jamieson and Mr Gary Vogt, the CEO of CarersLink, who was based in the Barossa Valley. It seems the process adopted during the appraisal was that an appraisal document previously prepared by Ms Jamieson was read out to Ms Starks. In her evidence, Ms Starks suggested that some of the contents of this document were not fair or accurate. However, in a statement prepared by her previously and contained within the T documents[3], she stated:
“The appraisal itself was fine and I did not have a problem with anything that was said or suggested.”
[3] T3/18
That statement is also consistent with Ms Starks’ oral evidence insofar as she did not give evidence of raising any of her concerns about the contents of the appraisal at the time of the appraisal.
21. At some time during the appraisal however, the issue of the configuration of Ms Starks’ hours arose. It appears a further discussion took place as to how Ms Starks’ reduced hours should be configured. It seems that Ms Jamieson again put forward the proposal that the hours be worked over four days, to which Ms Starks responded by indicating that she thought working three hour mornings would be very unproductive. She apparently also pointed out that she had worked three five hour days previously and this had gone smoothly. She apparently sought Mr Vogt’s views and he indicated that he supported Ms Jamieson’s proposal. In her evidence, Ms Starks also alleged that Ms Jamieson said something to her to the effect that Ms Jamieson did not think Ms Starks could work “three full days”. Ms Starks said she found this to be a very judgmental comment and that she was very hurt by the comment and felt that the trust which existed between her and Ms Jamieson had broken down. At the conclusion of the appraisal meeting, Ms Starks apparently asked for 48 hours to consider her position and Ms Jamieson and Mr Vogt agreed to this.
22. In her evidence, Ms Starks said that after she left the appraisal she went home and spoke to her husband and son about what had happened. She said that when she awoke the next morning she reflected on the situation and felt that if she continued on at CarersLink it would be impossible for her to successfully carry out her role, that the role itself would come under threat and that she would be blamed for this. She said she was “not prepared to wear” the failure of her role due to the proposed configuration of her hours. At an earlier point in her evidence she also said that she felt she was being “set up to fail” and that the revised hours being proposed would not work. Asked if it was just the issue relating to her hours that made her want to resign, she said “that was the bulk of it” and I received the strong impression from her evidence that whilst she had some other grievances, she would not have been driven to consider resignation had it not been for the proposed change to her hours. That impression is also reinforced by the fact that she told Centrelink in the immediate aftermath of her resignation that it was the proposed change in hours which had led her to resign[4].
[4] T5/37
23. Under cross-examination, Ms Starks was asked why she could not have worked the hours which were proposed. She said that on the days when she was required to work three hours in the morning, she would not have had time to leave the office. She also mentioned that sometimes the mail did not arrive in the morning and if the mail had not arrived by the time she left, she would not have been able to process the mail for that day. She said she would not have been able to achieve to an acceptable level or manage an acceptable workload in those hours.
24. Another witness, Ms Andronicos, also gave evidence in support of Ms Starks’ case. She said that when Ms Jamieson came to work at Kadina, the atmosphere at CarersLink had changed and it was not as much “fun” as it had been previously. She said that although Ms Jamieson and Ms Starks were friendly with one another initially, in time the relationship became strained and she felt that Ms Starks was not as happy in her employment as she had been previously.
25. Mr Vogt and Ms Jamieson each also gave oral evidence and provided written statements. In his evidence, Mr Vogt said that he regarded the 2010 appraisal as accurately reflecting Ms Starks’ performance as discussed with Ms Jamieson. In relation to Ms Starks’ hours, he explained that he and Ms Jamieson had decided that from the point of view of CarersLink it was preferable for Ms Starks’ hours to be worked over four days as they wanted administrative support over four days and the most important time for that support to be provided was in the mornings. He explained that after Ms Starks’ resignation, a new person was hired and after 11 weeks, the relevant funding was increased to 20 hours which allowed that person to work five hours per day over four days. He also said that from his observation, Ms Starks’ motivation and performance would vary to some extent from day to day and suggested this was a factor in the decision to ask her to work over four days. He also indicated that he agreed with Ms Jamieson that in his observation Ms Starks was not at her best from a work perspective after lunch. Nevertheless, he said he was surprised and disappointed when Ms Starks resigned.
26. In her evidence, Ms Jamieson said that a factor in the decision to ask Ms Starks to work her reduced hours over four days was that CarersLink was becoming busier and it would be too restrictive only having an administrative person there for three days per week as this would have the effect that other staff could not leave the office on the other two days. Ms Jamieson explained that she had also formed the view that Ms Starks would perform better in smaller blocks of time. She acknowledged that Ms Starks had raised the possibility that she may obtain a second job and it would be difficult for her to work the proposed hours if she had a second job. However, Ms Jamieson indicated that she and Mr Vogt had said to Ms Starks that if that occurred they would be prepared to reconsider changing the hours. She also confirmed (consistently with section 3 of the performance appraisal document[5]) that she and Mr Vogt had agreed with Ms Starks that the proposed hours would be reviewed after three months. She also indicated that if she had formed the view after three months that the proposed hours were not working, she would have considered changing them to a three day per week structure.
[5] Exhibit 3
27. Ms Jamieson also said she could not recall saying to Ms Starks that she did not feel Ms Starks could cope with working a longer day. She said that she and Mr Vogt were attempting to meet Ms Starks “half way” by allowing her to work one six hour day as Ms Starks had indicated that Wednesday was her busiest day. She also said in her evidence that at the conclusion of Ms Starks’ appraisal, her position was not “set in concrete” and she had not made a final decision as to the structure of Ms Starks’ hours. Rather she considered at that time that the question of Ms Starks’ hours had not been resolved and that she and Ms Starks would discuss the issue
again in a few days time. She said she was open to further negotiation at that point, however the opportunity for this was lost when Ms Starks resigned.
Analysis
28. As noted above, Ms Riley submitted that Ms Starks’ position had become untenable and compared her situation to that of applicants in other Tribunal matters where the Tribunal had concluded that the applicants’ actions were reasonable. These authorities included Re Department of Family and Community Services and Foley (2002)] 69 ALD 751, Re Broadhead and Re Duncan.
29. In Re Foley, the Tribunal concluded that the applicant’s employer was keen to terminate his services and that he was placed under “considerable pressure with the fear of instant dismissal if he did not resign there and then”. The Tribunal accordingly concluded that his resignation could not be said to have truly been voluntary[6].
[6] At [49]
30. In Re Broadhead, the Tribunal considered that the applicant had over-reacted to the objective circumstances in which he found himself and that his job was not in fact at risk. However, in the course of an unexpected meeting, Mr Broadhead had “perceived that his job was under threat, and with no prior knowledge of the complaints alleged against him, he did not re-act in a considered manner”. The Tribunal accepted Mr Broadhead’s evidence that:
“… in his circumstances with 2 young children, and his wife pregnant with their third child, he in effect panicked, or ‘saw red’, and perceived that the only way he could ensure that he was paid, was to sign the resignation form.”[7]
[7] At [12]
In these circumstances, the Tribunal found that Mr Broadhead’s voluntary act of resigning his employment was reasonable.
31. Contrasting the circumstances discussed in those matters with those pertaining to this matter however, reveals little similarity. I do not consider that Ms Starks perceived her job to be under threat, or felt under any financial pressure to resign.
32. The matter of Re Duncan has more in common with this matter. In that matter, Mr Duncan claimed to have been sprayed with liquid by another employee. Mr Duncan responded by spraying the other employee with some water and the matter then escalated, resulting in a physical altercation. Mr Duncan was stood down for two days but was told on the following day that he would continue to be employed if he came to work the next morning at 7.30am and apologised to all the witnesses to the incident and also attended counselling which the employer as prepared to pay for. Mr Duncan did not attend at work on the following morning and was accordingly terminated. Pursuant to the legislation then in force, one of the issues before the Tribunal was whether Mr Duncan’s voluntary act in refusing to comply with the conditions demanded by his employer was reasonable. The Tribunal recorded the following:
“24. Mr Duncan said that although his employer was prepared to pay for the counsellor the sessions would occur after work on his time and he was told his job was not guaranteed even if he agreed to the counselling.
25. Mr Duncan explained that he considered he had been unfairly treated in that he had been singled out for an incident which had been provoked by the other employee. He added that he felt he was in a no win situation and that in the circumstances the demands by his employer were not reasonable and therefore he decided not to return to work even though he understood that he would lose his job.
26. Mr Duncan explained that there had been recurring difficulties with Mr P since about three months into his employment and that other employees had similar difficulties.
27. Mr Duncan described Mr P as a long standing employee who was frequently verbally abusive to other employees and indicated that there had been numerous complaints to the General Manager about Mr P’s behaviour. According to Mr Duncan, the General Manager treated Mr P more favourably than other employees and despite several warnings Mr P’s behaviour would improve for only a few days.
…
31. Mr Duncan explained that he decided not to return to work despite the financial and other consequences because he felt that the circumstances at work would not change and that he would continue to suffer regular harassment because Mr P would continue to benefit from more favourable treatment.
32. In oral evidence Mr Duncan’s partner confirmed that he had been having difficulties at work for some time and that he had regularly complained about harassment by Mr P and that this was making him feel depressed. She explained that Mr Duncan would have liked to have kept his job but felt that he had no real choice in refusing the conditions to continue employment because the General Manager was unlikely to change his attitude.”
33. In these circumstances, the Tribunal concluded that Mr Duncan had a reasonable excuse for his “voluntary act of refusing to abide by the conditions demanded by his employer for continued employment”, stating:
“I accept Mr Duncan’s evidence that he felt that he had been unfairly treated and that in the particular circumstances he considered that the conditions demanded by his employer with respect to continuing employment were unreasonable. I also accept Mr Duncan’s assessment that if he had returned to work his situation in the workplace was unlikely to have changed.”[8]
[8] At [49]
34. Whist there are some parallels however, in my view Ms Starks’ situation was nowhere near as serious or untenable as Mr Duncan’s. She had experienced some tension with Ms Jamieson who it appears may have expected more from her or been more critical of aspects of her performance than the previous manager. Further, there were some aspects of the performance appraisal document which was read to her in January 2010 which she did not entirely agree with, or felt did not fairly represent the true situation. However, the evidence is also to the effect that she was not unduly troubled by these matters at the time of her performance appraisal and did not seek to challenge or further discuss them with Ms Jamieson or Mr Vogt. The matter which clearly did trouble Ms Starks, and which led to her decision to resign, was the proposed change to her hours, which if implemented would require her to work 15 hours per week over four days. I accept Ms Starks’ evidence that she was genuinely troubled by this and genuinely believed that it was not the most efficient way to structure her hours and was likely to cause practical difficulties for her in carrying out her duties. The real issue however is whether the fact that she held those views made it reasonable for her to resign in the circumstances which pertained at the time she tendered he resignation.
35. Relevantly to that question, those circumstances included the fact that the proposed hours were not yet final, and Ms Jamieson and Mr Vogt had each communicated to Ms Starks that they were prepared to review the hours in three months time. They had also each communicated to Ms Starks that they considered the proposed hours to be in the best interests of CarersLink, and explained to her some of the reasons why they had reached that view.
36. In all of those circumstances, I have concluded that Ms Starks’ decision to resign at the time at which she did was not “reasonable” within the meaning of the legislation. I do not consider that Ms Starks’ employment had become untenable at that point or that she had become subject to any form of “subtle bullying” or other mistreatment.
37. Ms Riley submitted that the hours available after February 2010 made the employment unsuitable for Ms Starks as they were not enough from Centrelink’s point of view to exempt her from job-seeking activities. However in my view the fact that Ms Starks would have had to carry out some job seeking activities in order to qualify for a payment from Centrelink did not render the employment unsuitable. Further I note that it was suitable in terms of the hourly pay, the nature of the duties and that it was located close to Ms Starks’ home and was therefore suitable in other relevant respects.
38. I accept that there were some tensions between her and Ms Jamieson, but in my view these were not such as to make it reasonable for Ms Starks to leave her employment and nor do I consider they were the reasons why she in fact left. Rather I consider that Ms Starks became upset about the proposed configuration of her hours, and perhaps some aspects of the way in which this was communicated to her. I also consider she was more sensitive in relation to this issue than she may otherwise have been because of Ms Jamieson’s relative increase in importance and authority within CarersLink, in comparison to her own situation. In this regard, I note that Ms Starks had in fact “managed” the office during a brief period, but Ms Jamieson had since assumed that role, in a position senior to Ms Starks. Further, whilst Ms Starks had helped to train Ms Jamieson when she first arrived, Ms Jamieson had since risen to a position in which she had authority over and was senior to Ms Starks[9].
[9] Exhibit 9, [3] – [5].
39. In these circumstances, once she received the impression that Ms Jamieson and Mr Vogt were unlikely to change their view about the proposed structure of her hours, and notwithstanding that her employment was otherwise suitable to her and she was not being subjected to any mistreatment, Ms Starks elected to resign the following day. In my view, that decision was not a reasonable one in all the circumstances, including the fact that Ms Jamieson and Mr Vogt had agreed to review the hours in three months time. Rather I consider that Ms Starks significantly over-reacted to her situation and elected to express her displeasure through resigning, rather than trialling the new hours, or attempting to negotiate further with her employer. I consider Ms Starks’ situation has some parallels with that considered by the Tribunal in Re Florenca and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 447, in which DP Hotop observed as follows:
“Having regard to those circumstances, the Tribunal is not satisfied that the applicant made a genuine or realistic effort to engage in the employment of storeperson at The Furniture Spot store on 21 August 2008. In the Tribunal’s opinion, the applicant’s self-assessment that he was incapable of doing that job was, it seems, largely based on a subjective misconception on his part that fabrication duties were necessarily involved in that job, and it was not based on reasonable grounds. Furthermore, the applicant’s act of leaving that job without completing even the first day of work was, in the Tribunal’s opinion, precipitate and unreasonable in that it did not allow for a realistic work trial period on the basis of which it might have been objectively determined whether he was, in truth, capable or incapable of performing the work duties necessarily involved in that job.”
40. In my view, a reasonable person in Ms Starks’ situation would have accepted that the ultimate decision as to how the hours should be structured was the employer’s. While they may have attempted to further discuss the issue, a reasonable person in Ms Starks’ situation would ultimately have agreed to at least attempt to work the proposed hours, and see whether or not the concerns she had about the proposed hours were realised or not. If Ms Starks had tried the new hours for a three month period and found it impossible to successfully do her job within that structure, a decision to resign at that point would potentially have been a more reasonable one. In the event however, I note that the person who replaced Ms Starks was apparently able to successfully perform the role within the hours allocated, although the funding increased after 11 weeks such that that person has since been able to work five hours on four days of the week. Sadly for Ms Starks, this tends to underline the impulsive and unreasonable nature of her decision to resign when she did.
41. I have accordingly concluded that Ms Starks’ decision to resign when she did was not “reasonable” within the meaning of s 42S of the Administration Act.
are there grounds for ending the unemployment non-payment period early?
42. As will be apparent from the terms of s 42S of the Administration Act set out above, ordinarily where a person is unemployed as a result of a voluntary act of that person, participation payment is not payable to them for a period of eight weeks. However, the provision also confers a discretion to end a person’s unemployment non-payment period early if it is determined that serving the unemployment non-payment period would cause the person severe financial hardship, and the person is in a class of persons specified in the relevant legislative instrument.
43. In Ms Starks’ case, the respondent does not dispute and I also accept that imposition of a non-payment period of eight weeks is likely to cause Ms Starks severe financial hardship. However, that leaves the question of whether she falls within one of the classes specified by the legislative instrument.
44. The classes referred to by Ms Riley and which appear to be of potential relevance to Ms Starks are:
(a)persons who have significant family and caring responsibilities, including persons with a dependent child;
…
(d) persons who do not have access to safe, secure and adequate housing, or are using emergency accommodation or a refuge.”
45. In relation to the first class mentioned above, I accept on the evidence before me that Ms Starks’ husband is unwell and suffers from high blood pressure, cardiovascular disease and an occluded aneurysm. However Ms Starks’ evidence was that at least at this stage, he does not require a great deal of assistance from her, beyond what she would usually do for him, apart from reminding him to take medication and assisting him in attending appointments. I am not satisfied that on this basis Ms Starks could be said to have “significant family and caring responsibilities” within the meaning of the determination.
46. In relation to class (d), Ms Riley provided a short further submission after the hearing together with explanatory statements relating to s 4(2) of the determination. The explanatory statement relating to the determination included the following statement:
“Subsection 4(2) sets out, non-exclusively, circumstances under which a person is taken not to have access to safe, secure and adequate housing. This definition is derived from the Supported Accommodation Assistance Act 1994, and is intended to encompass the particular characteristics or incidents of a person’s accommodation that may adversely them or place them at risk. This definition encompasses people who would be considered homeless under the definitions of primary, secondary and tertiary homelessness currently used by the Australian Bureau of Statistics but is preferred for the purpose of the instrument because it defines homelessness by its impacts on individuals and on their capacity to meet their obligations.”
47. From the material before me, it appears that Ms Starks and her husband jointly own the home in which they live, which is subject to a “home equity loan”[10]. In her evidence, Ms Starks mentioned that either she or her husband had withdrawn $3,000 from their superannuation under hardship provisions to clear the household debts, but that all of this money was now gone and the next round of bills were “coming in”. She also mentioned that they had recently had to defer their loan payments for three months. However, Ms Starks also mentioned that her son, who was living with her and her husband, was working and there is no further evidence before me to suggest that Ms Starks and her husband would be at risk of losing their home if she is required to serve the full eight week non-payment period.
[10] T4/30
48. In these circumstances, I am not satisfied that Ms Starks does not have access to safe, secure and adequate housing. In particular, I am not satisfied on the evidence before me that being required to serve the non-payment period will or may adversely affect the security or affordability of the housing to which Ms Starks has access or that she does not have a right to remain, or a reasonable expectation of being able to remain, in the housing to which she has access, namely the house she owns together with her husband.
49. I am therefore not satisfied that Ms Starks falls within any of the classes of persons specified for the purposes of s 42S(4)(b). It follows that it is not open to me to decide that the non-payment period which flows from Ms Starks having voluntarily left her employment should end early.
the non-payment period
50. As Ms Starks was not in receipt of NSA on the date she became unemployed, pursuant to s 42S of the Administration Act, the start date of the unemployment non-payment period would ordinarily have been the date her employment ceased. However, following a delegate’s decision not to pay her from 6 February to 2 April 2010 because she voluntarily left her job, Ms Starks sought review of that decision. On review, the ARO decided to impose a non-payment period from 5 February 2010 and Ms Starks subsequently sought review of that decision by the SSAT[11]. Declarations were made under s 131 and s 145 of the Administration Act respectively, continuing her NSA payments pending the outcome of the internal review, and the decision of the SSAT. Further, following the decision of the SSAT, the original decision as affirmed by the ARO’s decision was stayed pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act)[12], with the result that the respondent says Ms Starks has not yet served any part of the non-payment period.
[11] T5/32
[12] ss 142 & 188, Administration Act
51. The respondent submitted that in these circumstances it was necessary for me to decide when the non-payment period should commence. The respondent also contended that the non-payment period should commence from “the first day of the first instalment period that is practicable, following the receipt of the AAT affirmation”.
52. I sought further written submissions from the parties in relation to this issue following the hearing. The written submissions filed on behalf of the respondent maintained the position taken at the hearing. By way of support for this, it was submitted that the stay order imposed by this Tribunal had stayed the implementation of the SSAT decision, and this had the effect of deferring imposition of the non-payment period until the decision of this Tribunal[13]. The respondent also referred to paragraph 3.1.13.100 of the Guide to Social Security Law which states that when an unemployment non-payment period is upheld on review, the penalty commences “from the job seeker’s next pay period to start after Centrelink is notified of the final decision”. The respondent also contended:
“… this position is also consistent with the policy intention behind unemployment non-payment periods, which is that customers actually serve a period of non-payment, rather than subsequently raising an overpayment, as this assists administrative efficiency.”[14]
[13] Respondent’s submissions dated 9 February 2011.
[14] Respondent’s submissions dated 9 February 2011.
53. Having considered this issue carefully however, I do not consider the analysis advanced by the respondent to be correct. Rather, it appears to me that the non-payment period which results from the application of s 42S of the Administration Act commences from 5 February 2010, as the ARO concluded. Further, it is clear from the terms of ss 142 and 188 of the Administration Act that the stay imposed pursuant to s 41(2) of the AAT Act stayed the original decision as affirmed by the ARO, not the decision of the SSAT. Furthermore, whilst my decision will come into operation upon the “giving” of the decision pursuant to s 43(5A) of the AAT Act, the date on which my decision comes into operation does not have any direct bearing on the dates of the non-payment period, which in my view flow from the operation of s 42S of the Administration Act. Therefore upon the coming into operation of my decision, the dates of the non-payment period will remain as determined by the ARO’s decision (affirming the original decision), which will have been affirmed both by the SSAT and this Tribunal. Subject to the operation of s 43(5C) of the AAT Act, the coming into operation of this decision will also bring to an end the stay on the original decision as affirmed by the ARO which, having regard to the dates of the non-payment period, will presumably result in a debt being raised for the NSA paid to Ms Starks during that period. I note this is consistent with the approach taken by the Tribunal in Re Secretary, Department of Education, Employment and Workplace Relations and Kliszka [2011] AATA 58.
54. On a different but related matter, in written submissions in relation to these issues filed on behalf of the applicant, Ms Riley also contended that Ms Starks had already served 13 days of the non-payment period[15]. The respondent contended that this was not correct. In any event, in my view this is not something I need to determine as it is not relevant to the issue of whether the non-payment period should be imposed, but rather to the amount of the debt resulting from its imposition, which is not an issue currently before me.
[15] Applicant’s submissions dated 16 February 2011.
conclusion
55. I have concluded that Ms Starks became unemployed as a result of a voluntary act on her part which was not reasonable within the meaning of s 42S of the Administration Act and she is therefore subject to the imposition of an eight week non-payment period in respect of her NSA, commencing on 5 February 2010. I have further concluded that she is not in a class of persons specified by the Social Security (Administration) (Ending Unemployment Non-payment Periods – Classes of Persons) (DEEWR) Specification 2009 (No 1) and therefore the non-payment period applicable to her cannot be ended early.
decision
56. The decision under review is affirmed.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: ..............J Coulthard........................................
AssociateDate of Hearing 23 November 2010
Date of Decision 21 March 2011Advocate for the Applicant Ms M Riley
Welfare Rights
Advocate for the Respondent Ms J Edwards
Centrelink Advocacy Branch
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