Keir and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 45 (22 January 2009)

Last Updated: 23 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 45

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3660

GENERAL ADMINISTRATIVE DIVISION		)
	Re		WILLIAM KEIR

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Dr P McDermott, RFD, Senior Member

Date 22 January 2009

Place Brisbane

Decision

The Tribunal affirms the decision under review.

.................[Sgd].............................
Senior Member

CATCHWORDS

SOCIAL SECURITY – Pension, benefits and allowances – Newstart allowance – Participation failure – Unemployment due to misconduct as a worker – Whether unemployment due to misconduct – Decision under review affirmed

Social Security Act 1991 (Cth) s 629(1)(c)

REASONS FOR DECISION

22 January 2009

Dr P McDermott, RFD, Senior Member

INTRODUCTION

1. Mr William Keir has asked the Tribunal to review a decision to impose an eight week non-payment period on his newstart allowance. Centrelink initially imposed the non-payment period on the ground that Mr Keir became unemployed due to his misconduct as a worker. The Social Security Appeals Tribunal subsequently affirmed that decision. For the reasons given below, I affirm the decision under review.

HISTORY OF THE MATTER

2. On 20 November 2007, Mr Keir commenced casual employment with Boroma Pty Ltd (“Boroma”) which manufactures caravans. Although Mr Keir is a joiner, he was employed to install external cladding on the caravans. On 7 February 2008, Boroma terminated Mr Keir’s employment on the ground that he was smoking in the workplace.
3. On 15 February 2008, Mr Keir provided a statement to Centrelink in which he said: “On Thursday 7th Feb I received call on my mobile this made me stress so I lit cigarette. Was told to put out as I did was called to officer. Told to finish up as single parent I share my children. This will hurt me plus my children”.[1]
4. Mr Keir stated, in his evidence, that he was aware that there were “no smoking” signs in the shed. He also stated that he was aware that inflammable solvents were stored in the shed. But he said he was unaware that smoking would be a reason for instant dismissal.
5. Mr Keir gave evidence in an honest and frank manner, admitting that he smoked at the workplace; was aware of the “no smoking” signs at the workplace; and knew there were flammable products at the workplace. He also appreciated that there could be a risk of fire by smoking in the workplace. Mr Keir told the Social Security Appeals Tribunal that he was aware “that he knew that he was not allowed to smoke in the shed as there were signs saying ‘no smoking’”.[2]
6. A statement from Mr Peter Russell who is a former General Manager of Boroma was admitted into evidence before me.[3] In that statement, Mr Russell remarks that at about 10am on 7 February 2008 he called a meeting at the front of the factory. At that meeting, he warned staff against smoking during work hours and that anyone caught smoking under these circumstances would be dismissed instantly. Mr Russell stated that he called the meeting as he had become aware that certain staff members were smoking behind some of the sheds during work times. Mr Russell stated that not long after that meeting, at 10:30am, he then saw Mr Keir smoking in the fibreglass working area. Mr Russell, in giving evidence by telephone, then stated that he decided to terminate his employment after seeing Mr Keir smoking.
7. Mr Russell was cross-examined by Mr Keir about the meeting. Mr Keir denied attending the meeting mentioned in Mr Russell’s statement. Mr Keir advised Mr Russell that on 7 February 2008 he had started work at 6am and had left the premises of Boroma by 9am. Mr Keir verified those times by reference to his diary. Mr Russell then stated that he would have called the meeting at 8am rather than at 10am as was then mentioned in his statement.
8. In his statement, Mr Russell also remarked that all staff employed at Boroma were asked to sign a document which outlined the employment conditions of Boroma, that document included the following company policy:

“You can smoke at any time during your official breaks in the designated areas only.
SMOKING DURING WORKING HOURS IS AN OFFENCE.” (Emphasis in original.)

9. That standard document was admitted into evidence before me.[4] Mr Russell stated that all employees including casual employees signed such a document. Mr Keir denied signing such a document and stated that he would like to see the document that he signed. Mr Russell stated that the document would be in the possession of the liquidator of Boroma.
10. Mr Russell, in his evidence, stated that Mr Keir would have been offered a permanent position with Boroma had he not smoked at the workplace.
11. On 7 February 2008, the Payroll Administrator of Boroma signed an Employment Separation Certificate, which was admitted into evidence before me.[5] The Certificate states that the reason for the separation was misconduct being “smoking during working hours – instant dismissal”.

RELEVANT DECISIONS

12. On 5 March 2008, Centrelink notified Mr Keir that a decision had been made that that an eight week non-payment period would apply to him because of his misconduct.[6] Mr Keir sought a review of that decision. On 26 March 2008, an authorised review officer wrote to Mr Keir advising him that the decision had been affirmed.[7]
13. On 31 March 2008, Mr Keir appealed the decision of the authorised review officer to the Social Security Appeals Tribunal. On 10 June 2008, the Social Security Appeals Tribunal affirmed the decision under review.[8]
14. On 12 August 2008, Mr Keir sought a review of the Social Security Appeals Tribunal’s decision by this Tribunal.

RELEVANT LEGISLATION

15. Paragraph 629(1)(c) of the Social Security Act 1991 (“the Act”) provides:

“A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:
...
(c) is unemployed due to the person’s misconduct as a worker; ...”

16. I make the observation that I do not have any discretion to abridge the period of eight weeks which is prescribed by s 629(1)(c) of the Act.

ISSUES

17. The issues that I have to consider are twofold: First, I have to consider whether Mr Keir became unemployed due to his misconduct as a worker.
18. Secondly, if I decide that Mr Keir became unemployed due to his misconduct as a worker, I must consider whether an eight week non-payment period applies to his newstart allowance.

CONSIDERATION

19. At the outset of my consideration of this application I should state that I cannot accept the evidence of Mr Russell that a staff meeting was called on 7 February 2008. Mr Russell, in his evidence in chief, gave evidence that his statement was true and correct. That statement contained the remark that the staff meeting had occurred at about 10am on 7 February 2008. However, in
    cross-examination, Mr Russell stated that the meeting had occurred at 8am. I do not consider that he has a good recollection of the relevant events. I also mention that he was not aware of the “no smoking” signs at the workplace.
20. I am satisfied, and so find, that a staff meeting did occur about one week prior to the incident and that Mr Russell was at that meeting. An email of Mr Phil Kirkman dated 23 October 2008 was admitted into evidence.[9] In that email, Mr Kirkman remarked: “Only a week prior to this incident all employees met with Peter Russell (GM), the meeting was to inform everyone what lay ahead, areas that needed attention and Policies that were not being followed. One of those was the policies not being adhered to was smoking, all employees were informed that from now they would be dismissed if caught, it was also pointed out that everyone had signed a contract saying that smoking was only allowed during official breaks.” Mr Keir did not deny the correctness of Mr Kirkman’s email, although he did contest Mr Russell’s statement.
21. I accept that all employees signed the document which acknowledged that smoking was banned in the workplace, as is stated in the email of Mr Kirkman. I also accept that Mr Keir was at the meeting which was held about one week before his dismissal at which Mr Russell advised the workforce that smoking would lead to instant dismissal.
22. In his evidence, Mr Russell explained that the smoking ban was to accord with occupational health and safety requirements. He also mentioned that there were safety issues as the workplace contained flammable products. Mr Keir had himself admitted that there were flammable products at the workplace, although he could not recall what was actually located at the workplace.
23. The first issue that I have to consider is whether Mr Keir became unemployed due to his misconduct as a worker. I am conscious that the term “misconduct” is not defined in the Act. In The Concise Oxford Dictionary “misconduct” is defined as “improper conduct”.[10] Having regard to the terms of s 629(1)(c) of the Act, that misconduct must be as a worker. In my view, the term is sufficient to refer to the circumstances where Mr Keir smoked in the workplace in breach of oral and written directions. That conduct was certainly improper conduct as a worker having regard to occupational health and safety requirements. I find that Mr Keir became unemployed due to his misconduct as a worker.
24. I am satisfied that this case comes within the terms of s 629 (1)(c) of the Act as Mr Keir became unemployed due to his misconduct as a worker. In these circumstances, the provision provides that the newstart allowance for an eight week period.
25. I wish to make the observation that Mr Keir was obviously distressed at the hearing of his application. He has had a difficult time since his wife left him, particularly with the contested application for access to his children. I accept that Mr Keir is sincere in placing the welfare of his children as his main consideration. I also accept that he sincerely desires work which would not interfere with his rights of access to his children.

DECISION

26. I affirm the decision under review.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.

Signed: ...........[Sgd]..................................................................

Michael Buckingham, Associate

Date of Hearing 14 January 2009

Date of Decision 22 January 2009

The applicant was self-represented

Advocate for the respondent M Brazier, Centrelink

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[1] Exhibit A: T5, fol 19.
[2] Exhibit A: T2, fol 11.
[3] Exhibit C.
[4] Exhibit B: Annexure B.
[5] Exhibit A: T4, fol 18.
[6] Exhibit A: T8, fols 28-29.
[7] Exhibit A: T10, fol 33.
[8] Exhibit A: T2, fols 4-13.
[9] Exhibit B, Annexure B.
[10] The Concise Oxford Dictionary (6th ed, 1979), 696.