Stearman and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1785

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1785

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2228

GENERAL ADMINISTRATIVE DIVISION		)
Re		JAMES STEARMAN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member P McDermott, RFD

Date21 September 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

SENIOR MEMBER  

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – Newstart allowance – whether applicant has committed Newstart participation failures – whether applicant had a reasonable cause for the failures – decision affirmed

Social Security Act 1991 (Cth) ss 624, 626, 629

REASONS FOR DECISION

21 September 2007     Senior Member P McDermott, RFD

Introduction

1.      I have to determine whether a decision of Centrelink to apply an eight week non-payment period to Mr Stearman was correct. My decision turns on whether Mr Stearman has committed three Newstart participation failures within a 12 month period before the original decision.

Prior decisions

2.      On 15 January 2007 Centrelink made a decision to apply an eight week non-payment period to Mr Stearman. The decision was based on three Newstart participation failures within a 12 month period prior to the decision. On 4 April 2007 the authorised review officer of Centrelink affirmed the original decision of Centrelink. On 9 May 2007 the Social Security Appeals Tribunal (SSAT) decided to affirm the decision of the authorised review officer. Mr Stearman has now made an application to this Tribunal to review the decision.

Newstart participation failures

3. Centrelink contends that Mr Stearman committed three Newstart participation failures within a 12 month period before the decision was made to apply an eight week non-payment period. Each Newstart participation failure is contended to be the failure to attend a job interview. A person commits a Newstart participation failure if that person fails to attend a job interview: s 624(1)(e) of the Social Security Act1991.

4.      There were a number of job interviews that Mr Stearman was alleged not to have attended. I consider that it is fair to focus on those incidents that were the subject of an earlier decision by this Tribunal, and the decision of the SSAT that led to the present appeal.

5.      This Tribunal on 5 December 2006 found that Mr Stearman’s failure to attend a job interview on 16 January 2006 (amongst others) was a participation failure and affirmed a decision to impose a breach penalty. The SSAT in its decision of 9 May 2007 affirmed the decision that Mr Stearman’s failure to attend job interviews on 18 May 2006 and 5 January 2007 were participation failures. Mr Stearman appealed that decision, and I must decide whether that decision was correctly made.   

6.      The interview on 16 January 2006 was at the Southport premises of Mission Australia. That interview was the subject of a decision of this Tribunal on 5 December 2007. He gave evidence before this Tribunal that he did not attend that job interview.

7.      The interview on 18 May 2006 was with Morgan’s, a recruitment agency, in relation to the cleaning contract at the Gold Coast Convention Centre. In evidence before me, Mr Stearman stated that he thought the position was a telemarketing position to which he was not suited. He declined the interview for that reason. However, in evidence before the SSAT he stated that he did not attend the interview because he thought it was a position with Howard’s. He thought that Howard’s had the contract to clean the Gold Coast Convention Centre.

8.      The interview on 5 January 2007 was with ‘Focus on Paradise Apartments’. In his oral evidence before me, Mr Stearman stated he did in fact attend the interview at 9am on that day. However, in evidence before the SSAT he made an admission that he did not attend the interview. He stated there that he did not attend the interview because he thought it was with Howard’s. He said knew one of the people working there and had been told this. He thought that Howard’s had the contract to clean the premises of Focus on Paradise Apartments.  

9. I am satisfied that Mr Stearman failed to attend each job interview and that each failure was a Newstart participation failure within the meaning of s 624(e) of the Act.

Reasonable excuse

10. I must next consider whether Mr Stearman had a reasonable excuse for his failure to attend the job interviews: see s 626(2). Mr Stearman in his evidence stated that the interviews were scheduled at a time when he was looking for work. He stated that he would apply for vacancies as they were advertised.

11.     I do not consider the fact he was looking for alternative employment is a reasonable excuse for not attending the interviews. This is because in failing to attend the job interviews Mr Stearman failed to comply with the terms of his job search plan. A job search plan is an activity agreement for the purposes of Newstart.

12.     One recurrent complaint of Mr Stearman has been that the job interviews were with employers who were not reputable. However, there is no evidence which supports these contentions other than the allegations of Mr Stearman. No witness gave evidence in support of these allegations. No letters from Consumer Affairs were tendered. Mr Stearman, who has experience of the procedure of tribunals, has had ample opportunity to obtain such evidence. In the absence of any such supporting evidence, I do not regard these allegations to be a reasonable excuse for failure to attend the interviews.

13.     I appreciate that Mr Stearman has expressed some frustration with employment agencies. He says they did not take into account that he does not have private transport and so is reliant on public transport which does not operate in the evening. If he is offered job interviews at venues that are not close to his home, he states that the agencies have made an error. However, the requirement that he has to attend a job interview is an important part of his obligation under the job search plan.

14.     I mention that he told the SSAT his excuse for not attending the interview on 5 January 2007 was that he thought that the cleaning contract was with Howards. However, he had no definite information that Howard’s in fact had the cleaning contract.

15.     I do not consider that Mr Stearman had a reasonable excuse for his failure to attend the job interviews.

Findings of Tribunal

16. I find that Mr Stearman failed to attend each job interview on 6 January 2006, 18 May 2006 and 5 January 2007. I find that each failure was a Newstart participation failure with the meaning of s 624(e) of the Act. I also find that Mr Stearman did not have a reasonable excuse for his failure to attend the job interviews. I am satisfied that as a consequence of his failure to attend the three interviews, his Newstart allowance is not payable for an eight week period pursuant to s 629(1)(a) of the Act.

Decision

17.     I affirm the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD.

Signed:         ........[Sgd]........................................................................
           F Kamst, Associate

Date of Hearing  8 August 2007
Date of Decision  21 September 2007
For the applicant  Self-represented
For the respondent  Mr Hamilton, a departmental advocate