Tuan Anh Hoang and Secretary, Department of Education, Employment and Workplace Relations

[2010] AATA 444

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 444

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2120

GENERAL ADMINISTRATIVE DIVISION		)
Re		Tuan Anh Hoang

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Senior Member A K Britton

Date of Decision  19 May 2010

Date of Written Reasons              16 June 2010

PlaceSydney

Decision The decision under review is affirmed.

....................[SGD]................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart Allowance – Eight week non-payment period – where welfare recipient unemployed due to misconduct as a worker.

Social Security Act 1991 (Cth) — s 629(1)

REASONS FOR DECISION

19 May 2010 Senior Member A K Britton           

1. The applicant in these proceedings, Mr Tuan An Hoang, applies to the Administrative Appeals Tribunal for review of a decision made by the respondent Secretary, affirmed by the Social Security Appeals Tribunal, to impose an eight-week non-payment period on his receipt of Newstart Allowance. Section 629(1) of the Social Security Ac 1991 (Cth) (the Act), as it then stood, provides that:

Newstart Allowance is not payable to a person for a period of eight weeks where a person is unemployed due to their misconduct as a worker.

2.      On 24 December 2008, Mr Hoang’s employment with PPG Employment Services (the employer) was terminated on the stated ground of misconduct.  An employment separation certificate issued by the employer stated that:

Mr Hoang was caught stealing products (client) garments from our factory premises.

3.      The issue that I am required to determine is whether, as alleged by his former employer, Mr Hoang was terminated on the grounds of misconduct.  This turns on whether Mr Hoang, as alleged, took a garment or garments from the factory’s premises without the approval of his employer.  Before I look at the evidence surrounding that allegation it is necessary to make brief reference to the company’s policy about employee use of garments.  The employer, amongst other things, prints logos and illustrations on t-shirts, on behalf of customers.  According to manager, Mr Rick Wickramanayake, employees were permitted to wear sample or “offprint” t-shirts providing the consent of a manager was first obtained.  On his account, there was a box of shirts held in a small storeroom on the factory floor which employees were able to use provided a request was made. 

4.      In these proceedings, Mr Hoang initially agreed with that statement of company policy, but later reversed — or withdrew — that concession and said that it was his understanding that employees were permitted to take home t-shirts — or at least sample or soiled t-shirts, without first seeking approval and use them as they saw fit. 

5.      The evidence given by the respondent’s manager and that given by Mr Hoang is in conflict.  The evidence given by Mr Hoang today also conflicts with that he gave to the SSAT and that contained in a statement provided to Centrelink on 23 January 2009. Mr Hoang testified today hat on 24 December 2008, an hour or so after he had returned home, he was contacted by a manager of the company and asked to retrun to work to attend a meeting, which he did. He said that at that meeting, he was accused of having taken home t-shirts, and the possibility of police involvement was raised.  He said he was driven home by a manager and handed over to him two t-shirts — a light grey t-shirt that had been given to him by a workmate soon after joining the company, which on his account he had worn regularly since the commencement of his employment; and, a new white t-shirt he had taken out of the dryer and put on shortly after he finished his shift.  On his account, he forgot to remove that t-shirt after going outside to have a cigarette with work colleagues and wore it home.  The evidence Mr Hoang gave to the Social Security Appeals Tribunal and that set out in his statement is that he took only one t-shirt by mistake. 

6.      The evidence given today by Mr Wickramanayake is that three garments were involved — a jacket and two t-shirts, both new, one of which was navy blue (or possibly grey-blue) and bore the word “police”.

7.      In these proceedings, Mr Do, a work colleague of Mr Hoang, gave complaint evidence that two days after the alleged theft, Mr Hoang told him he had been falsely accused of stealing two t-shirts.  On his account, he had given one of those t-shirts to Mr Hoang to wear — a ”police” t-shirt which had been discarded because of a problem with the printing.

8.      There is often a difficulty in resolving conflicts in evidence, particularly where there has been a significant passage of time, and there are no contemporaneous documents to support any of the conflicting versions of events.  However, in this case, even if the evidence given today by Mr Hoang is taken at its highest, the conduct to which he admits in my view, constitutes misconduct for the purpose of the Act.

9.      It may have been that Mr Hoang wore the new white t-shirt home by mistake; but nonetheless, on his own admission, this was something he was not permitted to do. Mr Hoang had not been given express or implied approval to wear it home. It goes without saying that the t-shirt was the property of the company.

10.     Had Mr Hoang, on arriving home realised his mistake and taken steps to return the t-shirt, it might have been arguable that his action of wearing the t-shirt home did not constitute misconduct.  However, they are not the facts before me.  It may be — if Mr Hoang’s account is accepted — that the penalty of summary dismissal is harsh and unreasonable. That however does not change the character of the conduct to which he admits which in my view constitutes misconduct for the purpose of the Act.  It is not the role of this tribunal to determine whether in the circumstances the decision to dismiss Mr Hoang was reasonable.

11.     It therefore follows that as Mr Hoang found himself unemployed due to his misconduct as a worker, Newstart allowance was not payable to him for the eight-week period commencing from the date of claim.  Mr Hoang today has made a number of submissions which are, in effect, submissions in mitigation.  He contends that if required to repay the eight weeks Newstart allowance, he will be in difficult financial circumstances and possibly unable to meet his accommodation and medical costs. Unfortunately, once a finding is made that Mr Hoang is unemployed due to his misconduct as a worker, the Act provides that the Newstart allowance is not payable for a period of eight weeks.  I have no discretion to vary that provision, irrespective of the circumstances in which Mr Hoang finds himself. Therefore I must affirm the decision under review.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: ......................................[SGD]....................................
  Associate to Senior Member Britton

Date of Hearing:  19 May 2010
Date of Decision:  19 May 2010
Date of Written Reasons:  16 June 2010
The Applicant was self-represented
Representative for the Respondent:         Ms J Maclean,
  Centrelink Advocacy Branch