Ashton and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 198 (12 March 2009)

Last Updated: 24 March 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 198

ADMINISTRATIVE APPEALS TRIBUNAL ) No. 2008/5214

)

GENERAL ADMINISTRATIVE DIVISION		)
	Re		WILLIAM ASHTON

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

DECISION

Tribunal:

G.D. Friedman, Senior Member

Date: 12 March 2009

Place: Melbourne

Decision:

For reasons given orally at the hearing the Tribunal sets aside the decision under review and Mr Ashton is not subject to an eight week newstart allowance non-payment period.

................................................................
Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. V2008/5214

ASHTON

and

DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

THURSDAY, 12 MARCH 2009

MR W. ASHTON appears in person

MR T. NOONAN appears for the respondent
EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN: In this application there is really one question before me and that is what happened at the interview on 2 May 2008, when Mr Ashton was sent by IPA in Windsor, his job network provider, I think that is the term, to an interview with National Protective Services and that interview was conducted by Daniella Ghioghiu, who is the human resources coordinator at that company. I have before me a statement made on 22 December, 2008, by Ms Ghioghiu, and I have a blank employee application form that was attached to her statement, and Ms Ghioghiu gave evidence this morning.

I have to decide basically whose version of events I prefer. Mr Ashton said that he was not asked to complete an application form when he arrived at the interview. He said the interview was fairly relaxed and was held in the board room and that he was offered a position in security at Philip Morris in Moorabbin, and he said that he was told that the starting time was 6 am, and he said that he made clear to Ms Ghioghiu that because he did not have a car at the time, he would be unable to arrive at work by 6 am using public transport. It is not in dispute that he would not be able to get there reasonably using public transport.

Mr Ashton then said that Ms Ghioghiu accepted that this particular position wasn’t feasible, or practical, and he says that the conversation then moved on to other areas of NPSs business, which he says he initiated by asking questions along the lines of what other security does your company provide. And he says that the discussion then moved to other areas that the company provides security for, and they included ABC at Southbank and the Academy of Music at South Melbourne and the Mint, the Royal Australian Mint at Craigieburn.

RECORDED : NOT TRANSCRIBED

MR FRIEDMAN: Mr Ashton said that the positions talked about were the ABC at Southbank and the Mint in Craigieburn and the South Melbourne Market, and that there was no reference to the Academy of Music at South Melbourne. He said that the discussions were of a general nature and at no time was he offered a position at any of those locations. He said that he told Ms Ghioghiu that his preference in the long term was to return to the construction industry where he had had considerable experience in the past. He said that there was no mention of any training for any positions and he was never given an application form, and he described the interview, certainly after the discussion about the position at Philip Morris as a chat, because it was clear to him that there was no job available to him so that they talked generally about the security industry and the other things that those other jobs entail.

He said that he was told at the end of the interview that if he changes his mind he should contact NPS, I think was his evidence. He said on the way home, on the tram, he was contacted by his job provider who was somewhat agitated and said to him words to the effect, why didn’t you accept the job. Mr Ashton said it was a crowded tram and he asked the job provider to ring back five minutes later, which she did not, but when he eventually did make contact with her sometime later, she again said, why didn’t you take the job, and he explained about the start time for Philip Morris. And he said that in his discussions with the job provider he didn’t talk about the other jobs because they weren’t actually offered to him. That is his evidence. Ms Ghioghiu, in her statement of 22 December, said that:

On 2 May 2008, Mr Ashton would have been given an application form to fill in, this normally takes an applicant half an hour to complete.

She said:

It is not my usual practice to interview a job applicant unless his application form has been completed.

And when she was asked specifically whether Mr Ashton did complete the form, her response was along the lines, “Well that’s our normal practice,” but my recollection of her evidence was that she did not specifically state that she remembered Mr Ashton completing an application form. Which leaves some doubt in my mind, and of the use of the condition of tense by her, “would have been given,” and, “it is not my usual practice,” together with her answer leaves some doubt in my mind about her recollection, certainly of the application form itself.

She said that she had a resume forwarded by the job provider and it is quite possible that in the circumstances of that particular interview she may have felt that a resume was sufficient to conduct that interview. The last paragraph of her statement contains the following paragraph:

At the close of the interview I asked Mr Ashton to think about it and to call his job network member about it. I advised Mr Ashton that if he decided that he was interested in any of the work that we had discussed that he should have his job network member call me.

And Mr Ashton has pointed out to me, quite correctly, that that version of the interview is not consistent with an email that she sent on 16 July 2008, which is not long after the interview, two months after the interview, to Ms Larissa Banic at Centrelink, in which the second last paragraph of the email is:

We left the interview with him to get back to me if he was interested in any of the work that we discussed. He never called and did not seem interested in working for us. I did on many occasions state that he could start work with us within the week.

And I agree with Mr Ashton who pointed out the inconsistency between the recollection of Ms Ghioghiu, one a couple of months after the interview, another one some seven months after the interview. There was also some inconsistency in the recollection by Ms Ghioghiu about the starting time of the position at Philip Morris. Mr Ashton said that he was told that the starting time was 6 am. In her statement, Ms Ghioghiu, referred to – she didn’t actually mention it in her statement, but in her evidence she referred to 6.30 am. And in an email to Centrelink dated 16 July 2008, she said:

I interviewed William a while ago and I explained that we had several positions, one at Philip Morris, hours from 0700 to 1900.

So there is an inconsistency there as well. In her evidence, Ms Ghioghiu, stated in relation to the other positions which she said she offered to Mr Ashton, she said:

I would have discussed all positions with him.

Which is not her particularly definite recollection, it is something that she is saying, well, as she did with the application form, it is my usual practice. So what she was saying in evidence, it was my usual practice to discuss other applications, but she did not state that she did discuss all the positions with Mr Ashton. She talked about, in discussing the other jobs, she said they were normal rotations, we discussed ad hoc requests, most start afternoons from four to five hours and she said:

I would have been able to offer 28 hours a week and above award wages.

The discussion that she says about ad hoc requests suggests to me that as Mr Ashton said in his evidence was more of a general discussion, where she was saying that these particular jobs were of ad hoc requests. In relation to the ABC position, she said:

I offered a position but we didn’t discuss the offer.

Which, once again, seems to me to be more consistent with Mr Ashton’s evidence that there was discussion about the ABC, but no real offer. She talked about the Academy of Music, pay rate level:

Would have been rostered 28 to 35 hours a week. We talked about shifts, we talked about the construction industry. I gave him the pay rates.

Once again, that to me certainly is not consistent with a specific offer which would have referred to a particular job, a particular starting time and is consistent with her other evidence, which to me sounded quite vague in what she could recollect about that particular interview. Because of the inconsistencies in Ms Ghioghiu’s evidence, and I appreciate that she was giving evidence about an event that occurred in May 2008, and I also take into account that she interviews, she said four to five people per week, and she said she didn’t keep a copy of his application form. It is my view, on the balance of probabilities, that the account given by Mr Ashton is more plausible.
I find Mr Ashton’s account to be a credible, consistent account of what happened on that day. In cross-examination he maintained his story and it seems to me that what happened on that day was, as he said, and that was, quite simply he was offered a particular position, it had a six o’clock am start, it was agreed between both Mr Ashton and Ms Ghioghiu, that that position wasn’t practical because of the early start. He then asked her about other work done by NPS, they had a discussion, and certain other locations were mentioned and the work that goes on there. I accept his evidence that there was no formal offer made of any of those, and that is consistent with the telephone discussion he had on the tram where I accept his version of the conversation.

He was asked, “Why didn’t you take the job?” He wasn’t asked, “Why didn’t you take the jobs?” plural, when he spoke to his job provider several days later. I accept his evidence that he was asked, “Why didn’t you take the job?” And certainly, there is nothing in any of the material, that I have been able to find, that would support the view that Mr Ashton was asked, “Why didn’t you take that job?” and that he gave an explanation, and then, “Why didn’t you take the other jobs?” So for those reasons I accept Mr Ashton’s evidence. I don’t believe that in those circumstances that he refused – I don’t think breached his agreement, I don’t believe he refused or failed without reasonable excuse to accept a suitable offer of employment under section 629(1D). And because I accept him as a credible witness and I accept his version I don’t find that under section 629(1B) that he is unemployed due, either directly or indirectly, to a voluntarily act of the person.

And in saying that the reason for that is I accept his evidence that he said he didn’t want a long term position in security, he wants to go back to the construction industry. He went along to the interview, in my opinion, on a genuine basis that if the job was suitable for him at Philip Morris he would have taken the job and there is nothing I have heard today that changes that. Because of those findings I am going to set aside the decision under the review.

END OF EXTRACT