"VBZ" and Secretary, Department of Employment and Workplace Relations

[2006] AATA 47

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 47

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/505

GENERAL ADMINISTRATIVE  DIVISION

Re:            "VBZ"

Applicant

And:         SECRETARY,
  DEPARTMENT OF EMPLOYMENT

AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member

Date:24 January 2006

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe

Senior Member

SOCIAL SECURITY – newstart allowance – penalty for failure to satisfy the activity test- work for the dole programme – failure to complete – whether reasonable excuse for failure to complete

Social Security Act 1991

REASONS FOR DECISION

24 January 2006

Mr B.H. Pascoe, Senior Member

1.      This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) of 12 May 2005, which affirmed a decision of the respondent made on 3 February 2005 to impose an activity test rate reduction of 18 per cent of the applicant's newstart allowance for a period of 26 weeks from 17 February 2005 to 17 August 2005.

2.      At the hearing, the applicant was unrepresented.  The respondent was represented by Mr W. Zita, an advocate with Centrelink.  Evidence was given by the applicant and by three employees of Mission Australia.

3.      The background facts relating to this application are set out in detail in the decision of the SSAT and need not be set out in full again.  In summary:

(a)the applicant was in receipt of a newstart allowance in 2004;

(b)on 26 October 2004, she signed a Preparing for Work Agreement to commence, fully participate in and to complete a Work for the Dole programme from 26 October 2004 to 25 April 2005 pursuant to Subdivision 8 of Division 1 of Part 2.12 of the Social Security Act 1991 (the Act);

(c)the programme was with Mission Australia and required attendance for two days per week for seven and a half hours per day;

(d)on 22 December 2004, the project supervisor of Mission Australia requested that the applicant be removed from the programme for inappropriate behaviour.  The applicant stopped attending the programme on 22 December 2004 and did not seek to resume.

(e)From the programmes provided by Mission Australia, the applicant selected a programme entitled Office To Go which sought to impart office skills, word processing and sourcing typing services from local businesses; and

(f)the request for the applicant to be removed from the Office To Go project alleged misconduct and inappropriate behaviour in that she was said to have:

…

Displayed aggressive, antagonistic and intimidatory attitudes towards other participants.

Made unspecified threats to other participants.

Refused to allow the radio to be played in the project room(s).

Refused many reasonable requests for tasks to be performed.

When given work or study, made only the smallest effort for a short period before reverting to personal activities.

4.      In her evidence, the applicant maintained that she had not sought to nor actually intimidated any one.  She maintained that the reverse situation applied where she was subject to harassment from other participants and from supervisors.  She had lodged a sexual harassment claim against a male supervisor.  She maintained that the training was inadequate and the participants had little work to do.  She said that she had sought a transfer to another program without success.  On 22 December 2004 there was an incident in the toilet.  The applicant was accused of slamming the door in the fact of another participant.  However, she said that the toilet was small, the other girl followed her in and she simply closed the door to preserve her privacy.

5.      The evidence of the three representatives of Mission Australia was consistent that the applicant made minimal effort to become proficient and there was some friction between her and other participants, although, generally, not seen as serious.  One felt that the toilet incident on 22 December 2004 had been overstated in its seriousness by the other girl.  Nevertheless, that incident resulted in an interview by the supervisor which resulted in a major confrontation and the applicant storming out of the building and not returning.

6.      It is accepted that the applicant and the representatives of Mission Australia differ in the accounts of the applicant's behaviour and it is likely that the truth is somewhere between the two versions.  It was noted in the hearing that the applicant pressed her views with some aggression and is likely to have reacted strongly to any criticism.  It is also likely that the project which she selected was not suitable for her.

7.      A factor which may well be relevant is that the applicant was 39 years old when she commenced the programme.  Apart from working for a couple of months as a kitchen hand in a hospital when she was 16 years old, she has not bee involved in any employment.  It is likely that she could have some difficulty in a working environment and interrelating with a number of other participants.

8.      It is not clear whether the applicant ceased working in the programme because she was told to leave or whether she ceased of her own volition.  While there was a request for her removal, it was from the particular Office To Go project and made by the project supervisor to his superior who, apparently, had previously discussed a transfer to another project with the applicant.  In a statutory declaration of 31 January 2005, the applicant stated …I said to Joan I'm not coming back.  Joan was the overall supervisor with whom the interview was held on 22 December 2004.

9.      Irrespective of whether the applicant had displayed inappropriate behaviour, whether any such behaviour was a reaction to harassment by others or whether she was solely the recipient of some harassment, it is clear that she did not fully participate and complete a Work for the Dole programme which she had undertaken to do in compliance with the requirements of the Act.  The Act imposes obligations on recipients of newstart allowance as a consequence of receiving such allowance.  Failure to comply with such obligations without reasonable excuses constitutes a failure of the activity test and carries penalties of a reduction of the allowance by 18 per cent for 26 weeks for the first breach.

10.     Here and notwithstanding concerns at the programme by the applicant and some possible personal difficulties in the work environment, I am not satisfied that these difficulties constituted a reasonable excuse for her failure to comply with her undertaking to complete the programme in order to continue receiving the benefit of the full amount of newstart allowance.

11.     Consequently, the decision under review should be affirmed.

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

(sgd)       Catherine Thomas

Clerk

Dates of Hearing:  19 October 2005

6 December 2005

Date of Decision:  24 January 2006
Advocate for the applicant:          Nil – Self‑represented

Advocate for the respondent:       Mr W. Zita, Legal Services Branch