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

[2008] AATA 1156

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1156

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0545

GENERAL ADMINISTRATIVE DIVISION		)
Re		GRAHAM SULLIVAN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date23 December 2008 

PlaceSydney

Decision  The decision under review is affirmed.

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

Rear Admiral A R Horton AO

Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance – activity agreement – voluntarily left employment – participation failure - serious failure recorded – no reasonable excuse – decision to apply an 8 week non-payment period affirmed

Social Security Act 1991 – ss 593, 605, 606, 629, 630

Social Security (Reasonable Excuse) (DEWR) Determination 2006

Guide to Social Security Law – Parts 3.2.13.30

REASONS FOR DECISION

23 December 2008  Rear Admiral A R Horton AO, Member   

1.               Mr Graham Sullivan was employed as a casual by Road and Rail Civil Pty Ltd from 17 May 2005 until he voluntarily ceased employment on 16 August 2007.  His eligibility for newstart allowance (“NSA”) was subject to the conditions in an Activity Agreement, that in force being signed on 6 June 2007.

2. In accordance with the conditions extant in section 629 of the Social Security Act 1991, Centrelink imposed an 8 week NSA non payment period on 27 September 2007.  This decision was affirmed by an Authorised Review Officer (“ARO”) on 21 November 2007 and by the Social Security Appeals Tribunal (“SSAT”) on 21 January 2008.    On 13 February 2008, Mr Sullivan sought review by this Tribunal;  the 8 week non-payment period has not yet been applied, pending a decision.

3. At a telephone hearing before me on 25 November 2008, Mr Sullivan was self represented. Ms Andrea Garcia appeared for the Secretary of the Department of Education, Employment and Workplace Relations (“the Respondent”). The documents (T docs) provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were taken into evidence, as were the Respondent’s Statement of Facts and Contentions.

ISSUES

4.        There is no dispute that Mr Sullivan voluntarily ceased employment with Road and Rail Civil on 16 August 2007, his last day at work being 15 August.  There is also no dispute that Mr Sullivan signed an Activity Agreement on 6 June 2007, which was in force at the date he ceased employment, and that document states that  a serious failure may be recorded if the recipient of NSA voluntarily leaves a job.  It follows that in the circumstances a serious failure could be recorded.  The issues in this matter are therefore:

·did Mr Sullivan have a reasonable excuse for committing such a failure; and if not,

·should an eight week newstart allowance non-payment period be applied.

EVIDENCE

5.        Mr Sullivan, aged 45, is usually employed as truck driver, and on occasions, as a labourer.  He has variously been in receipt of NSA since 1992, this allowance being paid at a commensurate rate when employed, depending on the circumstances of such employment.  He commenced casual employment with Road and Rail Civil on 17 May 2005, his NSA being adjusted as appropriate to his work days/hours and income as he reported each fortnight.

6.        Mr Sullivan described his duties as generally being called to report for work on the following day at the company’s premises in Rutherford, and then driving trucks or other machinery either at their site or as directed, at a site belonging to another company.  His call-ups were dictated by the work obtained by Road and Rail Civil.  

7.        Mr Sullivan described frustration with the manager in that there was often little or no planning as to what his tasks would be each day, such that after a day driving a particular vehicle, he would return the next morning expecting to do the same, to be told otherwise.  He found this very frustrating.  He further objected to having to work outdoors as a labourer when the weather was adverse in order to meet the minimum 4 hours in order to receive any pay for the day.  Mr Sullivan also found it frustrating that a newer employee seemed to have more continuity of work.

8.        At 0700 on 16 August 2007 Mr Sullivan telephoned the manager of Road and Rail Civil to say he would not be returning to work.  As recorded by the manager on the Employment Separation Certificate (T9) dated 17 August 2007, Mr Sullivan said “that he had ‘no incentive to work’”.   In evidence, Mr Sullivan said that he had had enough of the difficulties of working “with the boss”.   He also referred to stress when working a roller on high mounds, and this contributed to his decision.

9.        I have referred to the Activity Agreement current at the time and the attachment labelled “Information You Need to Know”, which seemingly is part of all Activity Agreements.  As I have noted, this document states that that a serious failure may be recorded if “you, without good reason …voluntarily leave a job…”  Mr Sullivan acknowledged this document, saying he had “gleaned over it”.  However, he further said that he assumed that the warning applied only to permanent jobs, rather than casual employment.

10.      After leaving the above employment, Mr Sullivan was offered a job with another company, but he became sick and could not take it;  that offer has not been renewed.   He stated that jobs in his field are not easy to find, and adverse weather has a significant effect.   He is mobile and can drive within a reasonable range from his home.  After 10 years of residence in a property in Clarence Town, he has recently had to move elsewhere.

11.      Mr Sullivan has no dependents, and no family problems, but he indicated his parents were disappointed that he no longer had employment.  He referred to the death of a very supportive uncle, also a truck driver, who died about a month before he ceased employment.  He went to his funeral, and for a few days did not feel like working.  When asked, he felt that his uncle’s death “probably had some effect”. Aside from the period noted above where he was sick, he has no health problems and is not on medication.

LEGISLATION 

12.      The criteria for the receipt of NSA is defined in sections 593 and 605 of the Act.   As I have noted, Mr Sullivan has been periodically in receipt of NSA for many years, payment being related to the circumstances of employment, and the remuneration from that employment,  as appropriate. 

13.      Section 605 of the Act requires a person receiving NSA to enter into an Activity Agreement when and as required, and to enter into a replacement agreement when directed.  Section 606 requires the person to undertake activities as directed, that is to comply with the conditions of the Activity Agreement, subject to the person having the capacity by dint of such matters as education, health, the labour market and family circumstances. 

14.         Among other criteria, subsection 629(1)(b) of the Act states that NSA is not payable for a period of 8 weeks if a person:

is unemployed due, either directly or indirectly, to a voluntary act of the person …

without reasonable excuse vide subsection 629(4).

15. Section 629 must be read in conjunction with the Social Security (Reasonable Excuse) (DEWR) Determination 2006, which requires that account be taken of the accommodation of the person, literary and language skills (or lack thereof), any illness or impairment including neurological and psychiatric illness, drug or alcohol dependency, family circumstances and imprisonment.

16.      Departmental policy is further explained in the Guide to Social Security Law (“the guide”)           at Part 3.2.13.30, which relevantly states:

The meaning of the term reasonable excuse is discretionary but the excuse must be one that would seem plausible to a member of the public …. It is important to consider whether or not the reason for the failure to meet the requirement was foreseeable or within the person’s control.  The legislation also requires that the requirement was reasonable and that the job seeker was notified correctly… 

When determining if a recipient has a reasonable excuse for failing to meet a requirement, the recipient’s personal circumstances must also be considered.

CONSIDERATION AND DECISION

17.       I have noted Mr Sullivan’s view that the warning in the Activity Agreement in respect of voluntarily leaving a job applied only to permanent employment.  The Activity Agreement signed by him makes no reference to the nature of employment, but in normal usage it means paid work, be it permanent or casual.  Hence, I cannot accept Mr Sullivan’s view that in the circumstances he was immune from the criteria in respect of serious failure.   In the circumstances, and here I note he had “glanced” over the Activity Agreement conditions, Mr Sullivan might well have sought clarification of the “rules” from Centrelink.  That he did not do.

18.      Were his circumstances such that he had a reasonable excuse for ceasing work?   In effect, his evidence is that after over two years of employment by Road and Rail Civil, he decided he was no longer prepared to continue work primarily because of his objections to the administration by the manager, who on his evidence, had been the manager throughout his employment.  There is no evidence that he was maltreated or abused, and that another employee was seemingly given preference at times is not, in my view, sufficient justification for leaving the job.  From his evidence, I am unable to accept that the death of his uncle was a significant issue in him reaching the decision to cease work;  nor did Mr Sullivan emphasise the impact, describing it as “probably having an effect”.

19.        Since leaving the employ of Road and Rail Civil, Mr Sullivan has had little work.   However, that was a possible situation, in the nature of his work, that he should have considered at the time.  His health and domestic circumstances did not contribute to his decision to cease employment.  No details of his financial situation prior to him leaving Road and Rail Civil are before me.  I note that the Employment Separation Certificate refers to an “average gross weekly wage” of $912 per week, but I can place little weight on this figure in the absence of further explanation.  Suffice that the onus was on Mr Sullivan to make suitable financial provision, from his wages, for the quiet periods in his casual employment, and for the future, as best he could.

20.      On the evidence before me, I do not consider that Mr Sullivan has a reasonable excuse for voluntarily leaving his job.  It follows that he will therefore incur the penalty, as prescribed by legislation, of the loss of 8 weeks NSA.  I accept that such a loss is significant, but I take due account of the fact that Mr Sullivan has no dependents nor has he identified any major financial commitments.

21.      The decision of the SSAT of 21 November 2007 to impose an 8 week non-payment period (of NSA) is affirmed.     

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member   

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

Date of Hearing  25 November 2008
Date of Decision  23 December 2008
Appearance for the Applicant   Self-represented
Solicitor for the Respondent     Ms A Garcia, Centrelink legal services