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

[2009] AATA 164

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 164

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6204

GENERAL ADMINISTRATIVE  DIVISION		)
Re		OZGUR TUYSUZ

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date13 March 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – suitable offer of employment – serious participation failure – non-payment period – lack of medical evidence that the applicant’s injury would be aggravated by the conditions in which the work would be performed – decision under review affirmed

Social Security Act 1991 (Cth), ss 601(2A), 629 (1)(d)

Marabouti v Department of Employment, Education, Training and Youth Affairs (1998) 53 ALD 585

REASONS FOR DECISION

13 March 2009 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      Mr Ozgur Tuysuz seeks the review of a decision that applies an eight week non‑payment period to his newstart allowance. This non-payment period was imposed by Centrelink on the ground that he committed a serious participation failure by not accepting an offer of suitable employment.  For the reasons which appear below, I consider that the decision to impose an eight week non-payment period should be affirmed.

PRIOR DECISION

2.      On 1 December 2007, an authorised review officer of Centrelink affirmed the original decision to enforce an eight week non-payment period.  On 18 February 2008, the Social Security Appeals Tribunal (“the SSAT”) affirmed the decision of the authorised review officer.  On 30 December 2008, Mr Tuysuz applied to the Administrative Appeals Tribunal (“the Tribunal”) to review the decision to enforce an eight week non-payment period.

HISTORY OF THE MATTER

3.      On 17 September 2007, Mr Tuysuz entered into a job search activity agreement with MAXNetwork Employment (“MAXNetwork”).  Under the agreement, he agreed to accept all referrals to suitable positions as identified by MAXNetwork.  The job search agreement was for the period of 17 September 2007 to 14 March 2008.

4.      On 29 October 2007, Mr Tuysuz attended an interview with MAXNetwork where he received an offer of employment.  He remarked that the job offer was not for the advertised position of driving a furniture removal van.  In evidence before me, Mr Tuysuz confirmed that he had received the job offer.  He remarked: “I was offered the position, it is not a driver”.  Mr Tuysuz, in his evidence, stated that he was keen to find a full-time position as a driver.  He also stated that he would like to have an MR or HR licence.

5.      Mr Tuysuz was concerned that the offer of employment he received was in fact for a furniture remover rather than for the advertised position of a driver, although the tenor of his evidence was that he appreciated that the position would in time develop into that of a driver.  Mr Tuysuz stated that he refused to accept the offer of employment on the ground that he has lower back problems which resulted from an injury in 1997.

6.      Mr Tuysuz contended that he could not take up the duties of the furniture removalist in view of his lower back condition.  However, he has provided no medical evidence of his back condition either to Centrelink, the SSAT or the Tribunal.  In being cross-examined, Mr Tuysuz agreed that in his claim for job network assistance, he gave a negative answer to whether there were any other factors which might affect his ability to obtain work.  Mr Tuysuz stated that he injured his back when he was employed by a casino.  The injury was caused when he pushed a heavy trolley.  He received workers compensation for the time that he was off work.  From material before me, it would appear that the injury occurred in about 1997.

7.      On 30 October 2007, a participation failure report was made.  On 31 October 2007, Mr Tuysuz advised the Centrelink officer of his lower back condition and that he did not want to accept a position in which he was required to lift heavy objects.  That officer advised Mr Tuysuz to see his general practitioner to obtain medical evidence of his back condition.  On 7 November 2007, a decision was made to record a participation failure as Mr Tuysuz had not provided any such medical evidence.  On 8 November 2007, Mr Tuysuz was advised that a decision had been made that he did not have a reasonable excuse for failing to accept a suitable job offer.

CONSIDERATION

8.      I am satisfied from the evidence of Mr Tuysuz that he was offered employment.  In evidence before me, he confirmed that he was offered the position and did not accept it.  I find that on 29 October 2007, Mr Tuysuz failed to accept a suitable position of employment as a furniture removalist. 

9.      Mr Tuysuz had not notified Centrelink that he had a lower spine condition prior to being made the offer of employment.  In examining the material before me, I note that the only medical condition he disclosed to Centrelink relates to a temporary medical condition in 2002[1] which, for privacy reasons, is not necessary for me to disclose in my reasons.

[1] The temporary condition is disclosed at T39, folio 125; T40, folio 126.

10.     I am also satisfied from the material before me that if Mr Tuysuz had accepted the offer of employment, the employer would have provided training to Mr Tuysuz to enable him to obtain an MR licence – the very licence he desired.

11.     It is a contention of Mr Tuysuz that he applied for a position of a driver and not a furniture removalist.  However, the fact that he did not seek the furniture removalist position is not relevant to whether or not the position was suitable.  There is authority of the Federal Court of Australia (which binds me as a decision-maker) that the fact that a client was offered a position that he did not apply for does not lead to the conclusion that the position was not suitable[2].

[2] Marabouti v Department of Employment, Education, Training and Youth Affairs (1998) 53 ALD 585 at 594.

12. In considering whether Mr Tuysuz was given a suitable offer of employment I have had regard to s 601(2A)(b) of the Social Security Act1991 (“the Act”). This provision provides that particular paid work is unsuitable for a person if and only if, in the Secretary’s opinion, it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed. Having regard to the requirements of s 601(2A)(b) of the Act, I consider that it was entirely reasonable for the Centrelink officer to provide Mr Tuysuz with an opportunity to provide medical evidence of his back condition.

13. I am next required to consider whether Mr Tuysuz had a reasonable excuse for his failure to accept a suitable offer of employment: see s 629(1)(d) of the Act.

14.     At the hearing of his application, Mr Tuysuz did not tender any medical evidence of his back condition.  As part of the obligation of this Tribunal to be fair, I have taken into consideration that Mr Tuysuz may not have fully appreciated the necessity for him to obtain medical evidence of his back condition.  Consequently, I gave Mr Tuysuz the opportunity to file any medical evidence in that regard.  After discussions with him and having regard to the fact that he moved here from Sydney, I gave him until 25 February 2009 to obtain any material.  However, Mr Tuysuz still has not filed any such medical evidence.  In the circumstances, I am not satisfied Mr Tuysuz had a reasonable excuse which prevented him from accepting the offer of employment made to him.

15. For the sake of completeness, I should mention that at the hearing of this application I asked Mr Tuysuz about whether he had any domestic responsibilities. I made this particular enquiry having regard to s 601(2A)(ba) of the Act which applies where a person is the principal carer of a child. I am satisfied that this provision of the Act has no application at all to Mr Tuysuz.

DECISION

16.     I affirm the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.

Signed: ...........[Sgd].................................................................
             Matyas Kochardy, Research Associate

Date of Hearing  29 January 2009
Date of Final Submissions       25 February 2009
Date of Decision  13 March 2009
Applicant was self-represented  
Solicitor for the Respondent     Joe Guthrie, Departmental Advocate