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

[2008] AATA 1034

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1034

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/989

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL STEINER

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr I Alexander, Member

Date18 November 2008 

PlaceSydney

Decision The decision under review is affirmed. 

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

Dr I Alexander
  Member

CATCHWORDS

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

Social Security Act 1991 – sections 629, 630

REASONS FOR DECISION

18 November 2008	Dr I Alexander, Member
introduction

1.        In this proceeding, Mr Steiner seeks review of a decision of the Social Security Appeals Tribunal dated 5 February 2008.

2. That decision affirmed the decision of a Centrelink Authorised Review Officer to apply an eight week non-payment period with respect of a claim for Newstart Allowance, pursuant to s 629(1)(c) of the Social Security Act 1991 (“the Act”), on the ground that Mr Steiner had become unemployed due to his misconduct as a worker.

3.        Mr Steiner had applied for Newstart Allowance after having been dismissed by his employer on 17 July 2007 as a result of failing a random alcohol test.

4.         At the hearing on 28 October 2008, Mr Steiner was unrepresented and gave oral evidence by telephone.

5.        After having reviewed all the evidence and for reasons that follow, I find that Mr Steiner was unemployed due to his misconduct as a worker and that Newstart Allowance was not payable for a period of 8 weeks, which means that his application for review has been unsuccessful.

documentary evidence

6.        Mr Steiner was employed by Zaidan Welding as a fitter on 15 May 2007 for a probationary period of three months.

7.         Zaidan Welding is a company that contracts to provide mine maintenance.

8.        An employment agreement handbook, duly signed and dated by Mr Steiner on 24 May 2007, included a Code of Conduct that sets out a number of company rules including “no drugs or alcohol in the workplace“ and “no presenting to work under the influence of drugs or alcohol”.

9.        On 17 July 2007 at 6.45 am prior to starting work at North Parkes Mines, Mr Steiner was required to undertake a random alcohol test. 

10.      The result of the test indicated a blood alcohol level of 0.049%.

11.      A repeat test at 6.52 am using different equipment indicated a blood alcohol level of 0.05%.

12.      Mr Steiner was summarily dismissed.

13.      An Employment Separation Certificate dated 17 July 2007 indicated that the reason for separation was misconduct as Mr Steiner had failed a random alcohol test resulting in a breach of his employment contract.

mr steiner’s evidence

14.      It was clear from Mr Steiner’s oral evidence that in his view he had been unfairly treated by both his employer and Centrelink and that his actions did not amount to misconduct.

15.      Mr Steiner agreed that he had been drinking alcohol on the evening of 16 July 2007, but said that he had stopped drinking at 9.30 pm, in accordance with an alleged understanding with his employer, and could not understand what had gone wrong. He added that if he had suspected that his blood alcohol level had been elevated, he would not have gone to work.

16.      Furthermore, he could not understand why he was summarily dismissed and had not been given a first warning in accordance with the disciplinary procedure outlined in his employment agreement.

17.      Nevertheless, Mr Steiner conceded that he knew that the policy of the mining company was that a worker would not be allowed to work in the mine unless his blood alcohol level was zero.

18.      He also indicated the he was well aware that random testing occurred almost daily.

condideration

19. 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:

…

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

20. I note that misconduct is not defined in the Act and, notwithstanding decisions of this Tribunal, I read nothing in the legislation that requires me to consider whether Mr Steiner’s actions could be regarded as misconduct justifying dismissal.

21.      Furthermore, the question as to whether his dismissal was unfair is not a matter within the jurisdiction of this Tribunal.

22.      In my opinion, my task is to satisfy myself that Mr Steiner was dismissed by his employer for perceived misconduct as a worker and not for some other reason.

23.      In forming my opinion, I refer to a decision of this Tribunal namely Secretary, Department of Education, Employment and Workplace Relations and Dates [2008] AATA 54 at 16, where in considering the requirements of s 629(1)(c), Senior Member Allen said :

All I need to satisfy myself is that the employer dismissed the former employee because of conduct engaged in by the employee and which the employer regarded as terminating the mutuality of the contract of employment and not for some other reasons.

24.      I also note, in respect of what constitutes “misconduct as a worker”,  that Deputy President Forgie in Secretary, Department Employment and Workplace Relations and Payne [2007] AATA 1745 at 63 pointed out that:

What amounts to misconduct and to a person’s being unemployed due to misconduct at work can only be answered against the background of a particular employee’s circumstances in a particular workplace.

25.      In this matter it is clear from the evidence that the fact that Mr Steiner turned up for work and was found to have an elevated blood alcohol level was considered by his employer to amount to misconduct as a worker and that this was the reason for his dismissal.

26. Once it is accepted that Mr Steiner became unemployed due to his misconduct as a worker, s 629(1) of the Act makes mandatory a non-payment of Newstart Allowance for a period of eight weeks.

decision

27.      For reasons set out above, the decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

Signed:       .......................[Sgd]...........................
  Ms Radhika Prasad, Associate

Date of Hearing  28 October 2008
Date of Decision  18 November 2008
Appearance for the Applicant   Self-represented
Solicitor for the Respondent     Ms P Lee, Centrelink legal services