WOODHOUSE and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2010] AATA 851
•2 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 851
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5435
GENERAL ADMINISTRATIVE DIVISION ) Re ANDREW WOODHOUSE Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date2 November 2010
PlaceSydney
Decision The decision under review is affirmed.
.......................[sgd]................................
Ms N Bell, Senior Member
CATCHWORDS - Newstart Allowance – eight week non payment period – dismissal due to misconduct – perceived dismissal – failure to notify employer of absence from work
Social Security Act 1991
Re Secretary, Department of Education, Employment and Workplace Relations and Dates [2008] AATA 54
Re Secretary, Department of Employment and Workplace Relations and Payne [2007] AATA 1745
Re Steiner and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1034
REASONS FOR DECISION
Ms N Bell, Senior Member 1.
In April 2009, Mr Woodhouse commenced employment with Bright and Duggan Pty Ltd as an assistant Strata Manager. On Tuesday, 26 May 2009,
Mr Woodhouse attended work but left a short while after for a coffee with a friend. He became ill and did not return to work. He later faxed a medical certificate to his employer stating that he was unfit for work for a period of two days. When
Mr Woodhouse had not returned to work by Monday, 1 June 2009, his employer terminated his employment.
2. Mr Woodhouse seeks a review of the decision of the Secretary to impose an eight week non payment period for Newstart Allowance pursuant to section 629(1)(c) of the then Social Security Act 1991 on the basis that Mr Woodhouse’s employment ended as a result of dismissal for misconduct.
3. Section 629(1) of the Act, as it then was, provides:
629 Allowance not payable because of repeated or more serious failure
(1) A Newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:
(a)commits a Newstart participation failure (the repeated failure), having committed Newstart participation failures (the earlier failures) on 2 or more other occasions during the period of 12 months preceding that failure; or
(b) is unemployed due, either directly or indirectly, to a voluntary act of the person; or
(c) is unemployed due to the person’s misconduct as a worker; or
(d) has refused or failed, without reasonable excuse, to accept a suitable offer of employment; or
(e) fails, without reasonable excuse:
(i) to commence, complete or participate in an approved program of work for income support payment that the person is required to undertake; or
(ii) to comply with the conditions of such a program.
4. The sole issue for me to determine is whether Mr Woodhouse was unemployed due to his misconduct as a worker.
5. On Monday, 1 June 2009, Mr Woodhouse’s employer wrote to him as follows:
I bring your attention to the fact that you have not presented yourself for work either on Friday 29th May nor today, Monday 1st June.
As I have received no notice of cause for this absence I am terminating your employment…effective immediately. As you have been paid up until Friday 5th June please accept this week’s pay in lieu of notice.
6. A Centrelink employment separation certificate subsequently completed by the employer on 29 June 2009 stated that he was dismissed due to misconduct. No details of the nature of the misconduct were provided.
7. At the hearing, Mr Woodhouse said that on Tuesday, 26 May 2009, he had an early morning meeting with Mr Adrian Emery, the CEO of the company and the office administrator. Mr Woodhouse said that following the meeting he left the office in order to have a coffee with a friend when he vomited and fainted and an ambulance was called. Later that day, after attending a medical clinic, Mr Woodhouse faxed through a medical certificate to the office and later sent an email to Mr Emery which stated:
I have faxed you a doctor’s certificate. I am absent due to illness and expect to return to work on Friday.
8. On Wednesday 27 May 2010, Mr Woodhouse sent an email to Mr Emery regarding several issues including his absence. The email stated:
…I look forward to returning to work as soon as I am physically able later this week. I will advise you of any updates.
9. Mr Woodhouse submitted that this is confirmation that he had given notice of his absence to his employer and therefore the letter of 1 June from his employer was incorrect. Mr Woodhouse referred to the advice in his email that “I will advise you of any updates” and suggested that this was sufficient notice to his employer of future absences and the reason for them. I note that no further correspondence was sent by Mr Woodhouse to his former employer regarding his absence until he sent an email over one week later on Thursday, 4 June 2009, the day on which he said he received the employer’s letter of 1 June 2009.
10. Mr Woodhouse submitted that there was no ‘misbehaviour’ or ‘wrongdoing’ on his part and therefore he was not dismissed “due to misconduct as a worker”. He noted that no reference was made in the letter of termination to the words ‘misconduct’, ‘misbehaviour’ or ‘wrongdoing’ and nor did it state that he had abandoned his employment or breached his contract.
11. “Misconduct” is not defined in the Act. The Guide to Social Security Law states at 1.1.U.40:
For the purposes of Newstart Allowance, …unemployment due to misconduct refers to a situation in which a person contributes to their own unemployment through their own action or inaction at work.
A person is regarded as becoming unemployed through misconduct if they have been dismissed or given the option of resigning, as a result of an action such as:
…
·unauthorised absences from duty without good reason
12. Mr Woodhouse submitted that the words “unauthorised absences” require more than one absence and therefore have no application to his singular unauthorised absence. I reject this submission.
13. Mr Woodhouse contended that a conclusion that he was dismissed for “misconduct as a worker” under s629(1)(c) should not rely on what is determined by the employer but rather should be subject to an “objective test”. I do not agree.
14. I was referred to the decisions by this Tribunal in Re Secretary, Department of Education, Employment and Workplace Relations and Dates [2008] AATA 54 and Re Steiner and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1034 where it was observed that section 629(1)(c) of the Act only provided for the determination of whether the former employee was dismissed for misconduct as perceived by the former employer. I note the observations of Allen SM in Dates:
My task, as I understand the legislation in question namely, para 629(1)(c) of the SSA is to satisfy myself that the dismissal of the former employee was for perceived misconduct and not some other reason. …All I need to satisfy myself is that the employer dismissed the former employee because of conduct engaged in by the employee and which the employer regarded as terminating the mutuality of the contract of employment and not for some other reasons.
15.
Mr Woodhouse submitted that had not received a contract of employment prior to his dismissal and therefore his circumstances are distinguishable from those in Dates and the decision has no application. Whilst I accept that Mr Woodhouse may not have received a written contract prior to his dismissal, I do not accept that his employment was without condition or expectation. Mr Woodhouse was paid wages in return for which he was expected to attend his place of employment and perform tasks as required of him. I note that prior to the period of absence leading to his dismissal, he had attended the office daily and had been minded to forward a medical certificate on the previous occasion he had been absent from work.
Mr Woodhouse’s former employer dismissed him for his failure to notify of his absence and to provide reasons for it.
16. Mr Woodhouse also submitted that he was not on probation and was therefore dismissed unfairly or unjustly. He also submitted that as he was never instructed to provide a medical certificate at any stage by his former employer, then his dismissal was unwarranted. These matters are not the concern of this Tribunal. In Re Secretary, Department of Employment and Workplace Relations and Payne [2007] AATA 1745 Forgie DP observed that section 629(1) does not provide scope to evaluate the reasonableness of the misconduct for which an employee is dismissed:
The Act does not permit the Secretary or the Tribunal to decide if the misconduct is reasonable…the effect of s 629(1)(c) is that, once the decision-maker decides that the person is unemployed due to the misconduct of the worker, that is an end of the matter. There is no discretion to disregard the misconduct or the fact of the person’s being unemployed due to that misconduct.
17. As is clearly evidenced by the letter of termination from his former employer, Mr Woodhouse was dismissed for failing to provide a “notice of cause“ of his absence. His former employer considered this to be misconduct that breached the terms of his employment and warranted his dismissal. This is sufficient to enliven section 629(1)(c).
18. I conclude that Mr Woodhouse was dismissed from his employment due to misconduct as a worker. It follows that, in accordance with section 629(1), Newstart Allowance is not payable to him for a period of eight weeks.
19. For completeness, I note that Mr Woodhouse also submitted that the reasons for his termination were beyond his control and not a result of his own actions. When asked as to why he was absent from work on the days following the expiration of his medical certificate, Mr Woodhouse replied that he was medically unfit for work. However, it remains unclear as to why he could not notify his former employer of his intention not to go to work due to illness on the days following his expected return to work, and it is significant that during those days he wrote, or at the very least caused to be finalised and sent, the following lengthy emails:
(a)On Thursday, 28 May 2009, an email to Mr Emery alleging criminal activity by another employee and fraudulent practices in the workplace;
(b)On Thursday, 28 May 2009, an email to the President of the Institute of Strata Management requesting that his former employer be struck off the list of registered strata managers;
(c)On Friday, 29 May 2009, an email to the Institute enclosing a ‘Draft Media Release’ of the same date outlining his allegations of criminal activity and fraudulent practices against his former employer; and
(d)On Monday, 1 June 2009, an email to Max Employment setting out his concerns with his former employer.
20.
When the issue of his being able to write the emails was put to
Mr Woodhouse, he replied that there was a difference between drafting a media release and performing a high pressured job such as the one he had held. He also said that the majority of the substance of the emails had already been drafted prior to his illness.
21. In addition to the above, I also note Mr Woodhouse had liaised with his former employer’s underwriting insurer, CHU, to arrange a meeting to address his concerns of fraud being practiced by his former employee. The meeting was scheduled to occur on Thursday, 4 June 2009.
22. These matters are more relevant to section 629 (1) (b) as they concern the voluntariness or otherwise of Mr Woodhouse’s absence from work. Having reached the conclusion that Mr Woodhouse was dismissed for misconduct as a worker, it is unnecessary to consider this further.
decision
23. The Tribunal affirms the decision under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell,
Senior MemberSigned: ...............[sgd]...............................................................
AssociateDate of Hearing 22 September 2010
Date of Decision 2 November 2010
Solicitor for the Applicant UnrepresentedSolicitor for the Respondent Ms Naomi Tondl
Australian Government Solicitor
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