STEVEN JACKSON and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 774

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 774

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0911

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEVEN JACKSON

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date8 October 2009

PlaceSydney

Decision The decision under review is affirmed.

...................[sgd]........................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – Eight week non-payment period imposed – Whether applicant was unemployed due to misconduct as a worker - Whether applicant was unemployed directly or indirectly due to voluntary act that was not reasonable – Decision under review affirmed

Social Security Act 1991, s 629

Guide to the Social Security Law, part 1.1.U.40

North v Television Corporation Ltd (1976) 11 ALR 599

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Secretary, Department of Education, Employment and Workplace Relations and Dates (2008) 47 AAR 389

Re Secretary, Department of Education, Employment and Workplace Relations and Payne (2007) 46 AAR 324

REASONS FOR DECISION

8 October 2009 Senior Member Jill Toohey           

Background

1.      Steven Jackson was employed as a labourer by Whyalla Fabrications Pty Ltd until his employment was terminated on 10 November 2008.  Centrelink have decided that newstart allowance is not payable to him for eight weeks on the ground that he became unemployed due to his misconduct as a worker. 

2.      On 31 December 2008, Centrelink affirmed its decision to impose the eight-week non-payment period and, on 18 February 2009, the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision.  Mr Jackson seeks review of that decision.

legislation

3.      The relevant legislation is the Social Security Act 1991.  Section 629 was the provision concerning non-payment periods at the time of Centrelink’s and the SSAT’s decisions concerning Mr Jackson.  Section 629 was repealed on 1 July 2009 but it remains the relevant legislation for the purposes of this review. 

4.      Section 629 (1) provided that newstart allowance was not payable for eight weeks to a person who was unemployed due:

(a)either directly or indirectly, to their own voluntary act; or

(b)to their misconduct as a worker.

5.      Section 629 (4) provided an exception where a person’s voluntary act was reasonable.  There was no such exception, and no discretion, where a person was unemployed because of their misconduct as a worker. 

issues

6.      I have to decide whether s 629 (1) applied to Mr Jackson at the relevant time so that Centrelink was correct to impose the eight-week non-payment period on his newstart allowance.

7.      Centrelink decided, and the SSAT agreed, that the eight-week non-payment period should be imposed because Mr Jackson was unemployed due to his misconduct as a worker.  The SSAT considered that Mr Jackson was also unemployed due either directly or indirectly to a voluntary act on his part but decided it was not necessary to consider this further.

8.      In written submissions in the current review, Centrelink identified the issues as being, firstly, whether Mr Jackson was unemployed due to his misconduct as a worker and, secondly, whether he was unemployed due to a voluntary act on his part.  At the hearing before the Tribunal, Centrelink did not press the second issue.

evidence

9.      There is substantial agreement about the facts.

10.     Mr Jackson was employed as a trades assistant by Whyalla Fabrications Pty Ltd from some time in February 2008 until 10 November 2008.  It was his second stint there.  He was employed as a casual worker but generally worked five days each week, and occasionally more.

11.     From time to time Whyalla Fabrications Pty Ltd would contract their workers out to other firms and Mr Jackson and others would be told they would be working offsite for a period.  For various reasons, Mr Jackson did not like being contracted out and felt it was not what he had been employed to do.

12.     Some time around mid-October 2008, Mr Jackson went to see Matt Perone, the general manager of Whyalla Fabrications Pty Ltd.  They differ as to some of the details of their conversation but they agree that Mr Jackson explained why he did not like working off-site and asked whether he had to; when Mr Perone asked what he would do if he were required to work offsite, Mr Jackson said he would prefer not to and asked if he needed to apply for another job.  According to Mr Jackson, Mr Perone told him he would not be sacked if he refused.

13.     Mr Perone’s account of this conversation does not differ substantially from Mr Jackson’s.  He agrees he told Mr Jackson he would not have to look for another job.  He gave evidence that contracting out was not something he wanted to impose on workers long term but, in the climate at the time, he had to share resources with other companies as a means of trying to maintain business and keep workers employed; the company was low on work and there was not enough for everyone; and in those conditions, casual employees might be terminated for lack of work.

14.     On Wednesday 5 November 2008, Mr Jackson was driving home from work when his supervisor rang to say he had to work offsite for another company for the next two days.  Mr Jackson was not happy about this. In light of his earlier conversation with Mr Perone, he understood he would not be required to work offsite and he had already been asked by another supervisor to do another job the following day.  He returned to work and spoke to Mr Perone for over an hour.  He reminded Mr Perone of their earlier conversation but Mr Perone said he was to attend the following day as directed or he would be sacked.

15.     Mr Jackson did not go to work on Thursday 6 November. He did not telephone work to say he would not be in.  On Friday 7 November, he telephoned and spoke to a woman in the office to find out what was happening.  He asked if he had been terminated but she said she knew nothing and he should turn up on Monday.

16.     On Monday 10 November, Mr Jackson went to see Mr Perone to see what was happening.  He expected a “grilling” but not that his employment would be terminated.

17.     Mr Jackson gave evidence that he thought Mr Perone was bluffing about sacking him because of their earlier conversation, because he was a casual worker, and because he had a good relationship with Mr Perone.  He says, and Mr Perone does not dispute, that he had not gone to work on previous occasions for one reason or another, sometimes two or three times in a month, in other months not at all.  On these occasions, his supervisor would “grill” him, but he could not recall his supervisor ever telling him his employment would be terminated if he did not come to work although it was possible that he had.  

18.     It is evident that these “grillings” did not amount to much.  Mr Perone agreed in evidence that Mr Jackson had a close relationship with his supervisor who would have had a “quiet word” to him about coming to work.  Mr Perone thought that, if it continued, Mr Jackson “probably would have been in trouble”.

19.     Mr Jackson believes he was dismissed because of the lack of work at the time. 

20.     The Employment Separation Certificate signed by Mr Perone gives the reason for Mr Jackson’s termination as “Other” and notes the reason as “sacked”.  It does not indicate, as it could have done in one of the boxes on the certificate, that the reason was “Misconduct as an employee”.  Nevertheless, it states clearly that Mr Jackson was “sacked”.  The certificate is not conclusive (see Re Secretary, Department of Education, Employment and Workplace Relations and Payne (2007) 46 AAR 324) but it forms part of the overall picture.

21.     In a written statement to Centrelink on 25 November 2008 in connection with his application for newstart allowance, Mr Jackson wrote:

Was given an ultimatum, if I didn’t rock up to work […] and work for another company on hire I was sacked, so I didn’t rock up. The boss [knew] how I felt about working on hire to other [companies] as I have previously done before.

22.     Mr Jackson and Mr Perone gave evidence by telephone.  Each gave his evidence frankly and both impressed as credible witnesses.  There appears to be no animosity between them; each spoke well of the other and Mr Perone acknowledged that Mr Jackson was otherwise a good worker.

Was Mr Jackson unemployed due his misconduct as a worker?

23.     My task is not to decide whether Mr Jackson’s conduct justified dismissal; it is to satisfy myself that Mr Jackson was dismissed for misconduct and not for some other reason: see Re Secretary, Department of Education, Employment and Workplace Relations and Dates (2008) 47 AAR 389.

24.     In determining whether termination was for misconduct or some other reason, it may be necessary to inquire into whether the employee’s conduct could reasonably be construed as misconduct.  If not, it may be reasonable to infer that the employment was terminated for some other reason (or not at all but that the employee left voluntarily).

25.     Part 1.1.U.40 of the Guide to the Social Security Law describes the circumstances in which a person will be regarded as becoming unemployed due to their misconduct as a worker.  The Tribunal is not bound to apply the Guide but will ordinarily do so unless there are cogent reasons not to, or it would produce an unjust result in the circumstances of the particular case: see Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.  The circumstances set out in the Guide include deliberate failure to produce or deliver a reasonable amount of work, unauthorised absences without good reason and actions that threaten the reputation, viability or profitability of a business.

26.     Mr Jackson was a casual employee, although he was effectively working full-time hours.  Although he thinks he may have had a written contract of employment, he cannot find one and there is no other evidence of his conditions of employment before the Tribunal.  The terms of the contract of employment will be relevant to determining whether in fact a worker was dismissed for misconduct: see Payne at 343; applying North v Television Corporation Ltd (1976) 11 ALR 599.

27.     Mr Jackson had not turned up to work on a number of occasions, sometimes several times within a month, and nothing seems to have happened as a result.  Mr Perone apparently accepted this arrangement.  When Mr Jackson’s supervisor “grilled” him about coming to work, there was no formal warning given and nothing that could be construed as a warning. 

28.     It is not hard to see why Mr Jackson did not think there would be serious consequences for failing to follow Mr Perone’s direction to work offsite the following day.

29.     It is also clear that conditions were difficult at the time and that Mr Perone was concerned about possible lack of work. However, I do not accept that this was the reason Mr Jackson was dismissed. 

30.     In my view, the evidence points clearly to the fact that Mr Jackson was terminated for his refusal to work offsite as directed.  I am satisfied that refusal to obey a lawful instruction, or to attend work as required, amounts to misconduct and that it was due to this reason that Mr Jackson found himself unemployed.

Was Mr Jackson unemployed due, directly or indirectly to his voluntary act which was not reasonable in the circumstances?

31.     Mr Jackson denies leaving employment voluntarily or that his conduct led, directly or indirectly, his unemployment. 

32.     Mr Jackson’s statement to Centrelink makes clear that he was aware of what he was doing, and of the possible consequences, when he decided against going to work as directed.  Given his earlier conversation with Mr Perone and that nothing seems to have happened on other occasions when did not go to work, it is arguable that his voluntary act was not unreasonable.  However, as I find that Mr Jackson was unemployed due to his misconduct as a worker, it is not necessary to determine this issue.

Conclusion

33.     I am satisfied, on the evidence before me, that Mr Jackson was unemployed at the relevant time due to his misconduct as a worker. It follows that the decision under review is affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey.

Signed: ………[sgd]………

Steven Mulipola, Associate

Date of hearing:  1 October 2009
Date of decision:  8 October 2009
Representative for the Applicant:              Self-represented

Representative for the Respondent:         Centrelink Legal Services and Procurement