Stephen Seaborn and Secretary, Department of Education, Employment and Workplace Relations
[2013] AATA 228
[2013] AATA 228
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0001
Re
Stephen Seaborn
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 16 April 2013 Place
Decision:
Sydney
The Tribunal affirms the decision under review.
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Ms G Ettinger, Senior Member
CATCHWORDS
SOCIAL SECURITY - Newstart Allowance – whether the Applicant failed to accept an offer of suitable employment – whether serious failure – whether reasonable excuse – decision under review affirmed
LEGISLATION
Social Security Act 1991 – Div 3A; s 601(2A)
Social Security (Administration) Act 1999 – s 42N
SECONDARY MATERIALS
Social Security (Reasonable Excuse – Participation Payment Obligations) (DEEWR) Determination 2009 (No.1)
REASONS FOR DECISION
Ms G Ettinger, Senior Member
16 April 2013
SUMMARY
Mr Stephen Seaborn who is aged 46, has been a recipient of Newstart Allowance (NSA) since January 2000. He suffers anxiety and other psychological problems, and a number of physical conditions such as sinusitis, which becomes acute at times. Centrelink (the Respondent) has decided, via its agents, that he can work in paid employment for 15 - 22 hours a week. As a recipient of NSA, he is required to look for work when he is not employed and report that, as agreed. Centrelink, in its Statement of Facts and Contentions, noted that Mr Seaborn had held a number of casual jobs since 2000 but that since 2004 he had only worked briefly on three occasions.
As arranged on 29 August 2012, Mr Seaborn attended a pre-screening interview for a stable hand position at Salt Ash on 30 August 2012. Centrelink, by its agents, informed him that on 31 August 2012, an interview, handover and start date for the stable hand job at Salt Ash via Macka’s Labour Pty Ltd had been arranged for him, and that the pay was $18 per hour. Mr Seaborn says that the purpose of an interview is to establish whether a job is suitable, and that one cannot start a job without first having undergone an interview. He argued that 31 August 2012 could not have been a start date. Mr Seaborn also decided that the position for which he was designated on 31 August 2012 was unsuitable for him due to his health, the duties involved and the availability of transport. Accordingly, he refused to attend the interview. In that regard, I noted that the duties at Salt Ash had been adjusted to take into account Mr Seaborn’s physical limitations.
Because Mr Seaborn did not attend on 31 August 2012 as he was required to, Centrelink held on 18 September 2012 that he had failed to accept a suitable job offer, that he had committed a serious failure, and that he would not be paid NSA for the period 19 September to 13 November 2012. He was also informed that the non-payment period could be avoided if he agreed to participate in a ‘Compliance Activity’.
Mr Seaborn applied to have the decision reviewed, and when the primary decision was affirmed, he applied to the Social Security Appeals Tribunal (the SSAT) and then to this Tribunal. I have jurisdiction and I can deal with his application.
However, Mr Seaborn also requested that he receive a formal apology from Centrelink. I do not have the power to engage in such activity regardless of the outcome of this application.
I have decided to affirm the decision of the SSAT. My reasons follow.
RELEVANT LEGISLATION
The relevant legislation in this matter is the Social Security Act 1991 (the Act), and the Social Security (Administration) Act1999 (the Administration Act). Division 3A of the Administration Act deals with persons who are encouraged to participate in employment and employment services. The provisions were applied in Mr Seaborn’s case when he was found to have committed a serious failure by refusing or failing to accept an offer of suitable employment and had his NSA suspended for eight weeks. Certain discretion is available to decision makers and therefore to this Tribunal in that regard.
THE ISSUES BEFORE THE TRIBUNAL
I must decide:
·whether at the relevant dates, Mr Seaborn refused or failed to accept an offer of suitable employment; and if so,
·whether Mr Seaborn had a reasonable excuse for doing so.
BACKGROUND TO THE CLAIM
As noted above, Mr Seaborn, who is 46 years old, has been a recipient of Newstart Allowance (NSA) since 2000. He has been assessed by the Respondent as being capable of working 15 – 22 hours a week. At the time of that assessment in 2012, Mr Seaborn undertook to accept offers of suitable employment made to him. He was also informed that should he refuse to do so without reasonable excuse, his income support would be suspended for eight weeks.
The Respondent states that it made contact with a potential employer in the horse racing industry on the basis of information that Mr Seaborn had been at the Newcastle Jockey Club seeking work as a casual stable hand most days over a 20 year period.
When contacted by the officer handling his case, Mr Seaborn, although apparently reluctant, first agreed to be considered for the position of stable hand. The evidence indicates that on 29 August 2012, Mr Seaborn was contacted to attend a pre-screen interview the following day, to which he agreed. It seems the employer considered he was suitable on the basis of his resume. He in fact attended the interview the following day, 30 August 2012.
The SSAT recorded that the Centrelink officer noted that Mr Seaborn refused to accept the position on the basis it did not pay enough, his motor vehicle was not sufficiently reliable to get him to work, he had previously made a worker’s compensation claim, and his medical conditions precluded him from undertaking the work.
It seems that in response to Mr Seaborn’s concerns about the heavy work a stable hand had to do, and his expressed interest in driving, the employer at Salt Ash agreed with the officer to modify the offer of employment. The 15 hour position was modified to include the ability to take regular breaks during stable hand duties, (which did not involve riding any horses), and to make about half of the work hours driving a water truck on the property. The employer indicated that because the driving was on the property itself, no additional licence was required and Mr Seaborn’s normal driving licence would suffice. This was proposed in line with Mr Seaborn’s expressed interest in doing a driving job.
The evidence before me is that when the officer attempted to contact Mr Seaborn to discuss the position further, he was unable to do so. Mr Seaborn then contacted the officer and disclosed in an email on 31 August 2012, the day he should have commenced work at the stables, that he was suffering sinusitis and would be out of contact until 3 September 2012. On that day he informed the officer that he did not want to be considered for the stable hand position and had arranged a delivery driver position.
In that regard Mr Seaborn told me that he agreed with two of the grounds recorded for him refusing the position, being his health and transport, but that the money was not an issue. He told me that he had accepted a pizza delivery job with approximately the same pay, in fact at $17.50 per hour, which was fifty cents less than the stable hand position. He also said that he could not accept the water truck driving as he does not hold an appropriate licence even though he understood the driving was within the property.
However, the refusal of the stable hand job resulted in Centrelink making a decision to impose a serious failure in regard to Mr Seaborn’s NSA which meant that an eight week non-payment period was imposed.
Mr Seaborn appealed that decision, which was affirmed by the Authorised Review Officer (ARO), and then by the SSAT.
Ms Schuster, who appeared for the Respondent, submitted that on 19 December 2012 Centrelink wrote to Mr Seaborn to advise him a further eight week non-payment period would be imposed from 26 December 2012. She indicated that the letter was lodged with Australia Post on 21 December 2012. Mr Seaborn’s evidence was that he did not receive the letter until 27 December 2012. In the meantime, on 31 December 2012, he contacted Centrelink to indicate he was willing to undertake a ‘Compliance Activity’, which meant his NSA could be restored. That was implemented on the same day, 31 December 2012, which in effect means that the period of non-payment was five days, for which Mr Seaborn says he does not feel responsible because the relevant letter did not reach him without delay. He told me that the relevant activity he undertook was to work with the Salvation Army and the Red Cross.
Whether Mr Seaborn refused or failed to accept an offer of suitable employment
Section 42N of the Administration Act provides that a person commits a serious failure if he or she is a recipient of NSA and refuses or fails to accept an offer of suitable employment without a reasonable excuse. I am mindful that suitable employment is not defined in the Administration Act, but that section 601(2A) of the Act provides guidance in that regard.
I am mindful that the incident, the consequences which I must address, was Centrelink’s decision that Mr Seaborn had refused or failed to accept an offer of suitable employment on 31 August 2012. As a consequence, his NSA was suspended for eight weeks from that date. As already noted above, when Mr Seaborn undertook a recognised ‘Compliance Activity’, his NSA was restored, and this application concerns the five days for which his NSA was cut off in November 2012.
In summary, Mr Seaborn’s evidence and submissions were that:
·the job as a stable hand was unsuitable given his health restrictions;
·he was asked to attend an interview and commence a job on the same day, 31 August 2012; he did not think that was right, and the rationale for an interview was to see if the employer and employee wished the matter to proceed to employment;
·on 31 August 2012, he was suffering an acute attack of sinusitis; he referred to an attachment to Exhibit A2 which was a summary of his medical conditions from his general practitioner. It indicated he has suffered chronic sinusitis since mid 2011 for which he takes a nasal spray.
·his car was unreliable, it had broken down previously;
·perhaps a fuel coupon would have been useful;
·public transport times did not coincide with early start times at the stables;
·he did not have sufficient knowledge about horses to do a stable hand job; horses weigh 500 kgs and are difficult and dangerous to handle;
·he provided a stable hand job description from another employer as an attachment to Exhibit A1; this indicated heavy work beyond his capabilities was required, he said;
·he noted that the job had been modified for him; his interest was in a driving job, but he would not have agreed that it was acceptable to drive a truck even within the property without the appropriate licence, (which he does not hold);
·the money was not an issue because he had accepted a pizza delivery job at $17.50 per hour whereas the stable hand job was $18 per hour;
·he denied having done casual work at the Newcastle Jockey Club, saying that he grew up around horses, had owned horses in the past, and visited the race course, but did not work there;
·he said that the sausage sizzle at the racecourse was a hobby, done once a week, and that he did not make any money from it or get paid;
·the non-payment period by Centrelink has caused him financial stress which exacerbates his depression and anxiety.
The Respondent’s submissions were in summary, as follows:
·Mr Seaborn had refused to accept an offer of suitable employment on 31 August 2012. As a consequence, his NSA was suspended for eight weeks from that date.
·In order to take into account Mr Seaborn’s physical limitations, the employment agency operating on behalf of the Respondent had negotiated with the potential employer at Salt Ash that Mr Seaborn could take regular rest breaks. His weight restrictions were to be taken into account. In order to further take into account Mr Seaborn’s stated preferences for driving, the employer had agreed that half the number of hours worked could be driving a water truck within the premises. No endorsement of driving licence was required and Mr Seaborn’s motor vehicle licence was suitable.
·Mr Seaborn had referred to his car as being unreliable. The Respondent noted that he had not previously mentioned any vehicle unreliability, and had requested a fuel card. He had reported a breakdown once only, in April 2012.
·The Respondent noted that:
oMr Seaborn had complained public transport was unreliable, and not available at the appropriate times;
oMr Seaborn complained that the money offered for the Salt Ash job, being $18 per hour, was insufficient;
oMr Seaborn referred to a history of making a worker’s compensation claim;
oMr Seaborn relied on a leg injury which prevents him from climbing.
Ms Schuster submitted that the issue of delay in receiving a letter from the Respondent through the post was irrelevant as the start date of a non-payment period was not reviewable.
I am satisfied and find from the evidence that:
·Mr Seaborn had in 2012 undertaken, with agents acting for the Respondent, to accept suitable employment, and had attended a pre-screening for the stable hand position at Salt Ash on 30 August 2012. He had been assessed as having the capacity to undertake 15 – 22 hours of light work per week with a possibility of an increase in hours over the next two years;
·Mr Seaborn was informed the stable hand position had been modified to take account of his health conditions, and that he accordingly would have been able to carry out the appropriate duties for the 15 hours a week which were required;
·he was informed the job was modified to take account of his interest in driving, and would now involve half time driving a water truck within the property (he would not require any licence other than what he already held);
·his excuses regarding the unreliability of his motor vehicle were only raised with the Respondent’s agents in connection with rejection of the Salt Ash position;
·the pay was award rate, and I do not accept that the transport difficulties posed by Mr Seaborn at the last minute were a bar to his attendance at Salt Ash;
·Mr Seaborn’s doctor has indicated that he suffers from chronic sinusitis, but he did not provide any medical certificates regarding any acute sinusitis occurring on or about 31 August 2012.
I have taken into account section 601(2A) of the Act as to unsuitability of work and relied on this provision for guidance as to what suitable employment entails. I am satisfied from the evidence and submissions referred to above, that Mr Seaborn refused to accept an offer of suitable employment in connection with the Salt Ash stable hand position offered to him on 31 August 2012. Accordingly, pursuant to section 42N of the Administration Act, as a recipient of NSA he has committed a serious failure if he does not have a reasonable excuse for doing so.
Whether Mr Seaborn had a reasonable excuse for failing to accept an offer of suitable employment
Mr Seaborn was suspended from his NSA for a serious failure, that is, in not accepting the stable hand position. However in considering whether he had a reasonable excuse, I must take into account indicia raised in the Social Security (Reasonable Excuse – Participation Payment Obligations) (DEEWR) Determination 2009 (No.1), (the Determination). The matters raised in section 42N(2) are as follows:
(a) that the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure; and
(b) the literacy and language skills of the person; and
(c) an illness, impairment or condition of the person that requires treatment, including an illness that is episodic or unpredictable in nature; and
(d) a cognitive or neurological impairment of the person; and
(e) a psychiatric or psychological impairment or mental illness of the person; and
(f) a drug or alcohol dependency of the person; and
(g) unforeseen family or caring responsibilities of the person; and
(h) that the person was subjected to criminal violence (including domestic violence and sexual assault); and
(i) that the person was adversely affected by the death of an immediate family member or close relative; and
(j) if:
(i) the person has been imprisoned for a continuous period of more than 14 days; and
(ii) the person has been released; and
(iii) the person was released not more than 28 days before the failure was committed;
the person’s imprisonment or release from imprisonment.
I have considered the indicia noted above, and have no information that Mr Seaborn has inadequate housing, that he has literacy or language problems, drug or alcohol dependency, or unforseen family or caring responsibilities. Indeed most of the factors listed do not apply to Mr Seaborn. As a recipient of NSA since 2000, he is clearly not well off, but there was no information that he does not manage his life and limited finances. I noted Mr Seaborn’s evidence that he suffers from anxiety and depression, but do not find any link with those conditions and his decision not to accept the suitable employment offered to him for commencement on 31 August 2012.
I have considered all the evidence, guided by the Determination, and the material which was provided to me at the hearing. I am not satisfied that Mr Seaborn had a reasonable excuse for refusing to accept the job offer of a stable hand on 31 August 2012. Accordingly his application must fail.
I note for the sake of completeness that the suspension of Mr Seaborn’s NSA was limited to five days rather than the eight weeks initially imposed, because Mr Seaborn undertook employment delivering pizza at $17.50 per hour, which lasted a short time. He also undertook voluntary work at the Red Cross and the Salvation Army, being a serious failure requirement.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
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Associate
Dated 16 April 2013
Date of hearing 21 March 2013 Applicant In person Solicitors for the Respondent Ms Hannelore Schuster, DHS
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