Parsons; Secretary, Department of Education, Employment, and Workplace Relations and [2009] AATA 77 (6 February 2009)

Last Updated: 6 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 77

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3098

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT, AND WORKPLACE RELATIONS

Applicant

And

MICHAEL PARSONS

Respondent

DECISION

Tribunal

Ms Regina Perton, Member

Date 6 February 2009

Place Melbourne

Decision

The Tribunal sets aside the decision under review and determines that Mr Parsons has committed a serious participation failure and is therefore subject to an 8 week non-payment period of his newstart allowance.

(sgd) Regina Perton
Member

SOCIAL SECURITY – newstart allowance – activity agreement – offer of employment – activity agreement breach – 8 week non-payment period – whether respondent refused or failed to accept suitable offer of employment – whether respondent voluntarily left employment - whether reasonable excuse - decision under review set aside
Social Security Act 1991 ss 593, 601(1), 601(2A), 629(1), 629(1)(b), 629(1)(d), 629(1A)
Social Security (Reasonable Excuse)(DEWR) Determination 2006

Castleman v Secretary, Department of Social Security (1999) 56 ALD 439
Pandeli Marabouti v Department of Employment, Education, Training and Youth Affairs [1998] FCA 1452

REASONS FOR DECISION

6 February 2009

Ms Regina Perton, Member

1. Michael Parsons has been receiving newstart allowance (NSA) for some years. Longer term NSA recipients are generally required to enter into a written Newstart Activity Agreement (the agreement) with Centrelink, which administers NSA for the Department of Education, Employment, and Workplace Relations. On 5 October 2006 Mr Parsons entered into such an agreement which included an obligation upon Mr Parsons to accept all referrals to suitable positions, as identified by The Salvation Army Employment Plus, Werribee over a 6 month period. The agreement set out what would happen if Mr Parsons refused a suitable job offer or voluntarily left a job, namely that it would be a serious failure which could result in his NSA payment being stopped for 8 weeks.
2. Mr Parsons answered a job advertisement through a recruitment company for a storeman/forklift driver position in his local area. Mr Parsons was referred to the company concerned. On 16 January 2007 he was interviewed and told about the nature of the job but left after 45 minutes stating that the position was not what he was seeking. Salvation Army Employment Plus informed Centrelink that Mr Parsons had voluntarily left a suitable position.
3. The Social Security Act 1991 (the Act) allows for a non-payment of NSA for a period of 8 weeks where a person has refused or failed, without reasonable excuse, to accept a suitable offer of employment. It also imposes such a penalty where a person voluntarily leaves a suitable position. On 27 February 2007, Centrelink imposed such a penalty on Mr Parsons.
4. Mr Parsons sought review of the decision to impose an 8 week penalty by an authorised review officer (ARO) of Centrelink. On 10 September 2007 the ARO affirmed the decision to impose the eight week penalty. Mr Parsons then sought a review of the decision by the Social Security Appeals Tribunal (SSAT). On 10 June 2008 the SSAT set aside the ARO’s decision. On 10 July 2008 the Secretary lodged an application for review of the SSAT decision with the Tribunal.
5. The issue before the Tribunal is whether Mr Parsons refused or failed, without reasonable excuse, to accept a suitable offer of employment and/or if he voluntarily left his position. If he did, does he meet any of the legislative requirements which allow for a penalty not to be applied?
6. The matter was originally listed for hearing on 17 November 2008. Mr Parsons did not appear on that date. The Tribunal had noted that in a telephone conference in September 2008, Mr Parsons foreshadowed that he may choose not to attend the hearing. Nevertheless, the Tribunal telephoned Mr Parsons during the hearing. Mr Parsons advised the Tribunal that he had changed his address and had not received the notice of hearing. The Tribunal adjourned the hearing. The matter was re-listed for hearing on 29 January 2009. A notice of the fresh hearing date was served on Mr Parsons at his new address. However, Mr Parsons did not attend the hearing on 29 January 2009. The Tribunal has therefore determined the matter on the basis of the evidence provided by the applicant and the summaries of evidence presented by Mr Parsons to the SSAT and the ARO.

WHAT LED TO CENTRELINK ISSUING THE PENALTY?

7. Centrelink records indicate that, in October 2006, Mr Parsons entered into an agreement that required him, amongst other things, to accept all referrals to suitable positions and not to refuse such a position if offered.
8. The agreement sets out the following information about what could happen if the NSA recipient did not do what he had agreed to do.

...
If you don’t do what you have agreed
If you don’t do what you have been asked to do in this Agreement your payment or service may be stopped and you may also have a serious failure or participation failure recorded against you.
Serious failure:
You may have a serious failure recorded against you if you, without good reason:

• refuse a suitable job offer;
• voluntarily leave a job or are dismissed from employment due to misconduct; or
• are a long term jobseeker and fail to meet the requirements of full time Work for the Dole.

If you have a serious failure recorded against you, your payment may be stopped for 8 weeks.

9. On 16 January 2007 Mr Parsons’ case manager at Salvation Army Employment Plus submitted a report to Centrelink. She stated that Mr Parsons left a suitable position 45 minutes after arrival and hence there had been a serious failure.
10. On 27 February 2007 Centrelink wrote to Mr Parsons to inform him that his NSA payments would be stopped for 8 weeks due to his serious failure.

MR PARSONS’ RESPONSE

11. Mr Parsons stated that he had not been told by the recruitment company that the work would involve activities such as pick/packing. He said that he wanted to build up his skills as a fork-lift driver and would not have gone for the interview if he knew that the job comprised other activities.

RELEVANT LEGISLATION

12. Section 593 of the Act states that to obtain NSA, a person must meet the activity test requirements including complying with an agreement while it is in force. Section 601(1) of the Act states that a person satisfies the activity test if he is actively seeking, and willing to undertake, paid work that is not unsuitable for him. The definition of unsuitable work is set out in s 601(2A):

(2A) Subject to subsections (2AA) and (2AB), for the purposes of subsection (1) and paragraph (1A)(a), particular paid work is unsuitable for a person if and only if, in the Secretary’s opinion:
(a) the person lacks the particular skills, experience or qualifications that are needed to perform the work and no training will be provided by the employer; or
(b) it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; or
(ba) the person is the principal carer for one or more children, and does not have access to appropriate care and supervision for the children at the times when the person would be required to undertake the work; or
...
(c) performing the work in the conditions in which the work would be performed would constitute a risk to health or safety and would contravene a law of the Commonwealth, a State or a Territory relating to occupational health and safety; or
(e) the terms and conditions for the work would be less generous than the applicable statutory conditions; or
(g) commuting between the person’s home and the place of work would be unreasonably difficult; or
(h) the work would require enlistment in the Defence Force or the Reserves; or
(i) the work requires the person to move from a home in a place to a home in another place; or
(j) for any other reason, the work is unsuitable for the person.

13. Section 629(1) of the Act states that NSA is not payable for a period of 8 weeks on a number of grounds. These include a person refusing or failing, without reasonable excuse, to accept a suitable offer of employment (s 629(1)(d)). Another ground is that the person is unemployed due, either directly or indirectly, to a voluntary act of the person (s 629(1)(b)).
14. The Social Security (Reasonable Excuse)(DEWR) Determination 2006, made pursuant to s 629(1A) of the Act, sets out matters to be taken into account in determining if a person has a reasonable excuse for failing to take a particular position:

(2) The matters are:
(a) the fact that the person is living in a non-permanent location on the streets or is using emergency accommodation or refuge at the time that the failure or refusal occurred; and
(b) the literacy and language skills of the person, if the person’s lack of such skills is significant; and
Example for paragraph (b)
If the person is unable to comprehend a requirement or an instruction, despite the requirement or instruction being delivered in a form that the person is most likely to comprehend.
(c) any illness, impairment or condition of the person that requires frequent treatment, including any illness that is episodic or unpredictable in nature; and
(d) any cognitive or neurological impairment of the person; and
(e) any psychiatric or psychological impairment or mental illness of the person; and
(f) any drug or alcohol dependency of the person; and
(g) any unforeseen family or caring responsibilities of the person; and
(h) the death of an immediate family member; and
(i) if:

(i) the person has been in gaol; and
(ii) the period that the person spent in gaol exceeded 14 days; and
(iii) the person has been released; and
(iv) the person was released not more than 28 days before the person’s failure to comply with the Act;

the person’s release from gaol.
(3) Subsections (1) and (2) do not apply unless the Secretary is satisfied that the matter had a significant effect on the person’s capacity to comply with the requirement or the provision of the Act to which the failure or refusal relates.

DID MR PARSONS COMMIT A SERIOUS FAILURE OF THE AGREEMENT?

15. Mr Parsons does not deny that he left the company less than an hour after he arrived.
16. In looking at the criteria in the determination concerning reasonable excuse, there has been no evidence put forward by Mr Parsons to Centrelink or previous review bodies that he met any of the criteria set out in s 629(1A).
17. In relation to the alternative argument put forward by Centrelink, namely that Mr Parsons was unemployed due to a voluntary act on his part, the Tribunal has no evidence that his departure from the company was involuntary.
18. While Mr Parsons may have preferred a job that involved fork-lift driving alone, he had signed an activity agreement that required him to accept jobs he was capable of doing. Centrelink submitted that merely because the position offered was not the job for which Mr Parsons understood he had initially applied for does not make his actions in leaving the job reasonable. Centrelink argued that if a suitable position is offered instead of the one applied for, this does not in itself render the job unsuitable. Centrelink cited as authority the comments of Lindgren J in Pandeli Marabouti v Department of Employment, Education, Training and Youth Affairs [1998] FCA 1452:

The first allegedly relevant consideration was that the job offered was not the job for which Mr Marabouti had applied. However, the CMAA refers to "a suitable job offer that becomes available". It does not refer to the circumstances in which the offer becomes available. In particular, it does not specify that the person must have applied for the job offered. The fact that a person applies for one job, is unsuccessful and is offered another does not, in itself, render the latter job unsuitable.

19. Centrelink also submitted that NSA is not payable to people who undermine their employment prospects by limiting the categories of work they seek, citing Castleman v Secretary, Department of Social Security (1999) 56 ALD 439). In its Statement of Facts and Contentions dated 22 October 2008, Centrelink contended:

33. In this instance, it is therefore submitted that the selective choosing of jobs or job categories by Mr Parsons was unreasonable. When viewed in the context of Mr Parsons’ lengthy history of receipt of income support, it is submitted that his failure to take up the job offer adversely impacts on the question of the reasonableness of his actions, namely, walking away from a job after only 45 minutes. There is no evidence to support the Social Security Appeals Tribunal’s rationale that there was other work of Mr Parsons choice imminently available to him. At the time of his actions, Mr Parsons had a long history of receipt of income support, and arguably should have accepted and remained in any suitable employment offered to him. Even if Mr Parsons preferred other work, it was open to him to accept and remain in the SCM Laverton position, and at the same time, seek work more to his liking.

20. The Tribunal accepts the contentions put forward by Centrelink. The Tribunal also takes into account Mr Parsons’ failure to establish any of the criteria which would have enabled it to determine that he had a reasonable excuse for failing to take a particular position. Accordingly, based on the evidence before it, the Tribunal is satisfied that Mr Parsons committed a serious failure by failing to accept and/or was unemployed due to an involuntary act on his part. Therefore, Centrelink was entitled to impose an 8 week non-payment period of Mr Parsons’ NSA.

DECISION

21. The Tribunal sets aside the decision under review and determines that Mr Parsons has committed a serious participation failure and is therefore subject to an 8 week non-payment period of his newstart allowance.
    

I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision of

Ms Regina Perton, Member

(sgd) Leah Berardi

Clerk

Date of hearing: 29 January 2009

Date of decision: 6 February 2009

Advocate for the applicant: Self-represented

Advocate for the respondent: Mr T De Uray, Centrelink Legal Services Branch