Werner and Secretary, Department of Family and Community Services [1999] AATA 1009 (23 December 1999)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [1999] AATA 1009

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/644

GENERAL ADMINISTRATIVE DIVISION )

Re ANTHONY WERNER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member JA Kiosoglous MBE

Date 23 December 1999

Place Coolangatta

Decision The Tribunal affirms the decision under review.

(Sgd) JA Kiosoglous

Senior Member

CATCHWORDS

SOCIAL SECURITY - Newstart Allowance - Activity Test Breach Rate Reduction period applied - applicant sacked for his level of absenteeism being in breach of a performance agreement - did this breach amount to a voluntary act or misconduct pursuant to sections 628 and 629 of the Social Security Act, respectively.

Social Security Act 1991 Sections 628, 629, 644.

Re O'Keefe and Secretary, Department of Family and Community Services, 13 July 1998, AAT No 13099

North v Television Corporation Ltd (1976) 11 ALR 599

REASONS FOR DECISION

23 December 1999 Senior Member JA Kiosoglous MBE

1. The applicant, Anthony Werner, seeks a review of a decision of the Social Security Appeals Tribunal (SSAT) of 12 May 1999 (T2), which affirmed the decision of an Authorised Review Officer (ARO) dated 24 March 1999 (T16), to apply a 26 week activity breach rate reduction period from 29 January 1999 to 29 July 1999. The ARO having varied the decision of a delegate of the respondent of 2 March 1999 (T12/61).

2. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents, T1 to T16) together with five exhibits, one exhibit being lodged by the applicant (Exhibit A1) and four lodged by the respondent (Exhibits R1 to R4). In addition, the Tribunal heard evidence from the applicant, who represented himself. The respondent was represented by Mrs Tina Guthrie, a departmental advocate.

3. The issue before the Tribunal is whether or not the applicant's employment was terminated because of misconduct or a voluntary act. The applicant's employment with Colgate-Palmolive as a production line factory worker was terminated on 28 January 1999 (T6). He applied for Newstart Allowance on 12 February 1999 (T4). A Centrelink delegate decided, on 12 February, that the applicant's employment was terminated as a result of his misconduct and consequently a 26-week activity breach rate reduction period was applied from 28 January 1999 to 28 July 1999 (T8). In response to the applicant's request for review of this decision an ARO, on 24 March 1999, varied the period of the rate reduction to commence on 29 January 1999 and finish on 29 July 1999. The SSAT affirmed this decision on 12 May 1999 (T2).

4. The Tribunal whilst taking the evidence as a whole into account, briefly sets out herein the facts. The applicant was employed by Colgate-Palmolive from 11 August 1997 to 28 January 1999. According to the statement of Ms Patrice Ryan, Human Resources Manager at the Labrador Plant at which the applicant had been working, the reason for the applicant's termination was his unsatisfactory level of absenteeism (Exhibit R3) Also in her statement she sets out that:

"4. It is standard practice for employees at Colgate-Palmolive's Oral Care Plant to be involved in a staged performance improvement process when their attendance consistently falls below the plant norm.

5. Mr Werner's attendance was significantly below the plant norm in 1997 and on 5 March 1998 he entered into Phase 1 of the Oral Care Plant's performance improvement process.

6. Mr Werner progressed through each of the three stages of this process without his attendance improving to the required level. As a consequence, his employment was terminated on 28 January 1999."

5. The applicant stated at the hearing that he had had 21 days off work in the first 12 months and admitted that this was not a good attendance record. He further stated that he was put onto phase 3 of a performance agreement on 31 August 1997, the aim of which was for him to keep his non-attendance level below the plant norm. The applicant then drew the Tribunal's attention to exhibit A1, which was claimed to be a record of plant attendance levels. The applicant pointed out that this indicated that the 12-month average level of non-attendance for the plant was 3.13%. The applicant contrasted this with his level of non-attendance in phase 3 and said that if the level of 3.13% had been used he would not have been dismissed pursuant to the performance agreement. The applicant stated that after entering phase 3 of the performance agreement on 31 August 1998 he had 2 days off work. The first was on 29 December 1998 and the second on 25 January 1999. The applicant stated that both of these were due to his car breaking down on his way back from Wollongong, where he had been visiting his daughter. The applicant further stated that he had volunteered to work on 29 December 1998, which was the Christmas shutdown for the Plant, as he needed the money and he was the only one who put up their hand to do the shift. There was no proof of the first breakdown, the applicant said, but referred to a receipt from Lube Mobile dated 25 January 1998, (T10) as proof of the second breakdown. The applicant stated that the date on the receipt should have been 25 January 1999 and the repairman had made a mistake. Upon breaking down on 24 January 1999 the applicant stated that he rang the Plant immediately. There was no answer so he rang both of his team leader's homes, Michael Allman and Russell Vellacott. There was no answer at Mr Vellacott's house but Mr Allman's wife was home and she said she would pass on the message. The applicant stated that Mr Allman later told him at work that he had received this message. He further stated that Lube Mobile repaired his car on the morning of 25 January 1998 and he rang the Plant and spoke to a Doug Marsden, informing him of his predicament. The applicant stated that his attendance summary for 25 January 1998 (attached to the statement of Michael Allman, exhibit R2) says that he failed to ring his team leader, which, he maintains, was a lie.

6. The applicant stated that he was never told of the level of non-attendance he was required to keep below as part of the performance agreement. The applicant further stated that by his calculations he was not over the plant level and this had not been verified or confirmed, not even by the Plant Manager. The applicant also drew the Tribunal's attention to the employment separation certificate (T6). He stated that the box indicating his employment was terminated due to unsatisfactory work performance had been ticked; not the box below marked misconduct (T6/50). He stated that this was a matter of interpretation and said that if anything he was the most committed of all his colleagues in the last 5 months of his employment.

7. The applicant stated that for every time he did not attend work, aside from the shift of 14 July 1997, which he slept through because his alarm didn't go off, he provided a medical certificate. Upon Mrs Guthrie indicating that she disputed this on the basis of the statement by Michael Allman (R2), the applicant stated that under the performance agreement he was required to give a medical certificate otherwise he would go to phase 4 of the agreement and be deselected. The applicant further stated that he had always given a medical certificate and that this was confirmed at about page 4 and 5 of the performance agreement, which Colgate-Palmolive had failed to provide to Centrelink and which was not included in the Section 37 Documents. The applicant stated that he could not see how he could have been over the Plant average of non-attendance in phase 3 and that he had been sacked illegally and unfairly. The applicant stated that he did not pursue the issue of unfair dismissal, as it would have cost him too much to do so.

8. During cross-examination Mrs Guthrie referred the applicant to the statement of Michael Allman (R2), to which was attached by way of annexure a record of the applicant's attendance and the reasons for non-attendance. The applicant indicated that he did not agree that this was an accurate record of his attendance. Mrs Guthrie then asked the applicant whether Mr Allman had his medical certificates. In reply the applicant said he did not but agreed that Mr Allman would have had access to them. Mrs Guthrie further asked the applicant if it was the case that he entered the performance agreement on 5 March 1998, to which he indicated that this was probably correct. Mrs Guthrie then put to the applicant that as he was not required to give medical certificates until he was actually on the performance agreement from 5 March 1998 onwards, such certificates were not necessary and hence this is why such were not supplied. In response the applicant stated that every employee had to provide a medical certificate on all occasions when absent for medical reasons. When it was put to the applicant again that he did not provide certificates for his absences prior to 5 March 1998 he did not give a direct answer but pointed to the entry of 31 March 1998. This was a day on which the applicant had called in sick but no certificate had been recorded as being provided. The applicant said he would have been sacked for breaching the performance agreement if this had been the case and he had not provided a certificate on this occasion.

9. The applicant was asked if he had approached his Union about the matter. He said that there had been a meeting between a Union representative and Richard Crover, the Oral Care Plant Manager, but he was not allowed to attend. The applicant further stated that the Union did not take any further action after this meeting.

10. During cross examination the applicant agreed that it was a mistake for him not to contact the Plant prior to 10:30am on 29 December 1998 after his car had broken down on 28 December 1998; especially in view of the fact that he was supposed to start work at 7am that morning. Upon being further questioned about the car break down of 24 January 1999 the applicant recounted the events as previously stated.

11. Mrs Guthrie also asked the applicant about his statement that his health had improved by 31 August 1998. In response the applicant stated that he had suffered from allergies, namely hay fever, while he worked at the Plant. The applicant further stated that he had to have cortisone injections over 2 months after which he exhibited no symptoms. The applicant stated that 26 August 1998 was the last time he suffered from hay fever.

12. Mrs Guthrie referred the applicant to a letter from the Plant Manager Richard Crover (attached to Exhibit R3), dated 17 June 1999 and drew his attention to the last paragraph which provides:

"Your absenteeism rate exceeded the plant norm in January 1999, and you were placed in Phase IV of the Performance Improvement Process, which results in deselection from the Plant. Also the incident where you left the Plant in a "controlled" uniform, without informing a Team Leader exacerbated the situation."

Mrs Guthrie asked the applicant why he left the Plant in a controlled uniform. The applicant stated that on that particular shift there was no food in the Plant and he went to the service station around the corner to get some. The applicant further stated that other workers at the Plant had done the same thing and he felt he was being made an example of. When Mrs Guthrie asked the applicant if he had been told that he could not leave the Plant in uniform the applicant stated that he had.

13. Mrs Guthrie again drew the applicant's attention to the attendance record that is part of R2. The applicant immediately stated that he disputed all of the entries on this record. When referred to the entry of 16 November 1998, which listed the applicant as being 15 minutes late for an intercom meeting, the applicant stated that he was the Health and Safety Officer for his team and he was never late for meetings. The applicant agreed with the entry of 29 December 1998, which recorded him as being absent and ringing in at 10:30 am reporting that his car had broken down. He further stated that this was the only entry he did not dispute. When referred to the entry of 24 September 1998, which listed the applicant as being 7 minutes late for a team meeting, the applicant said he could not say whether this was true or not. The applicant agreed that the entry of 9 September 1998, which listed the applicant as being 30 minutes late for a shift due to a flat battery, was correct. When referred to the entry of 29 September 1998, which recorded the applicant as being sick and ringing in and being granted annual leave that was approved as the Plant had been shut down for the day, the applicant stated this was impossible to do as one had to apply for annual leave on a form days in advance. The applicant was referred to several other entries, which he either accepted as correct, probable or disagreed with outright.

14. Mrs Guthrie asked the applicant where the powder area was in the Plant. The applicant stated that it was on Level 3 and that he worked on Level 1. When asked if he worked with powders the applicant stated that he did not. He did state however that in his role as Health and Safety Officer he would investigate incidents and accidents and this took him all over the Plant. The applicant further stated that the dust extraction system of the Plant was not adequate and he wrote a report about it that he presented to Michael Allman, who immediately threw it in the bin.

15. The applicant contends that section 628 of the Act is capable of a very wide interpretation, which should be exercised in his favour. The applicant also contends that his hay fever was not voluntary, nor was his car breaking down. The applicant stated that he did not understand how Re O'Keefe and Secretary, Department of Social Security, 13 July 1998, AAT No 13099, which Mrs Guthrie had referred to in support of her submissions, was relevant, as there was alcohol involved. The applicant further contends that his attendance under the performance agreement improved and stated that he debated and rejected most things on the summary of attendance. The applicant also contends that he did not know about not leaving the Plant in a controlled uniform until some months after the incident. The applicant contends that the decision of the SSAT is wrong and that for him to be branded with misconduct is an insult. The applicant stated that he did suffer with allergies whilst employed by Colgate-Palmolive but that he does not now have such problems and certainly not since being with his current employer.

16. Mrs Guthrie stated that the substance of the issue before the Tribunal was whether the applicant's dismissal came within sections 628 or 629 of the Act. Section 628 states that if a person's unemployment is directly or indirectly due to a voluntary act of that person and the Secretary is not satisfied that the person's voluntary act was reasonable then, if the voluntary act is the first or second breach in the 2 years before the act, an activity test breach rate reduction period applies. Section 629 states that if a person's unemployment is due to their misconduct as a worker then, if the misconduct is the first or second breach in the 2 years before the misconduct, then an activity test breach rate reduction period applies to the person. The period of the activity test breach rate reduction, pursuant to section 644AA of the Act, is deemed to be 26 weeks. By operation of section 644AC the period starts the day after the event occurred. Mrs Guthrie stated that the applicant's rate reduction period should start on 29 January 1999 as he had been sacked on 28 January 1999, and therefore concurred with the variation made by the ARO. She further stated that in accordance with the provision of section 644AE of the Act the relevant rate reduction in the case of Mr Werner, for which this was his first breach, is 18%.

17. Mrs Guthrie contended that the decision of the SSAT should be affirmed. In support of this she stated that the termination of the applicant's employment could be seen to be due to a voluntary act or, in the alternative, as a result of his misconduct. Mrs Guthrie referred the Tribunal to Re O'Keefe, a case that considered the operation of section 629 of the Act and whether the applicant had committed an act that amounted to misconduct. Mrs Guthrie stated that misconduct was not defined in the reasons for decision but other cases that considered legislation similar to that of section 629 of the Act had been considered. She referred the Tribunal to an extract from North v Television Corporation Ltd (1976) 11 ALR 599 found in Re O'Keefe and stated that in her submission it was appropriate to consider the performance agreement and its breach by the applicant as misconduct in the light of this extract. Mrs Guthrie also contended that the applicant's absenteeism continued to escalate and that the performance agreement set out the levels he had and that such were unsatisfactory. She further stated that the applicant was aware that there was little room for error in Phase 3 and that he was aware that if he breached this agreement his employment would be terminated. Mrs Guthrie stated that the reason cited by the employer for the applicant's termination was that he was not reducing his level of absenteeism as required. Mrs Guthrie also stated that Michael Allman's statement (Exhibit R2) was evidence of the fact, given that he had access to the applicant's medical certificates, that no certificates were provided unless noted on the summary of attendance. She contended that the statement of Mr Allman (Exhibit R2) should be preferred to the evidence of the applicant. Mrs Guthrie further contended that the performance agreement and the applicant's absenteeism, which was contrary to the formal agreement, amounts to a voluntary act or misconduct. Mrs Guthrie also contended that the applicant's assertions that he was below the average rate of non-attendance when he was dismissed are incorrect on the strength of the record.

18. The issue before the Tribunal is whether the applicant's level of absenteeism and his breach of the performance agreement amount to a voluntary act or misconduct pursuant to sections 628 and 629 of the Act respectively. Before turning to this issue it must be said that the Tribunal accepts the documentary evidence of Michael Allman (Exhibit R2) and the attached record of the applicant's attendance to that of the applicant provided at the hearing in relation to his attendances. The Tribunal found that the applicant contradicted himself when explaining the record of his attendances to Mrs Guthrie during cross-examination. He also gave differing reasons for why medical certificates were provided after 5 March 1998, the day the applicant entered the performance agreement, and not before.

19. Turning to the case of North, guidance on the issue of misconduct can gained from an extract found at pp 608-609 by Smithers and Evatt JJ:

"It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment."

In light of this, the Tribunal is satisfied that the applicant's employment with Colgate-Palmolive was terminated for misconduct. This is despite the applicant's hay fever, which had cleared up by the end of August 1998, and despite the applicant's car trouble. The applicant was made well aware of his obligations under the performance agreement. His being aware of the fact that he was close to deselection once he entered phase 4 of the agreement should have made him ensure his car was able to make the trip to Wollongong and back before he set out. It is therefore unnecessary to consider whether the applicant's breach of his performance agreement was a voluntary act pursuant to section 628 of the Act.

20. For the above reasons and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr JA Kiosoglous MBE (Senior Member)

Signed: .....................................................................................

Associate

Date/s of Hearing 13 December 1999

Date of Decision 23 December 1999

For the Applicant In person

For the Respondent Mrs Guthrie