Roberts and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 829 (26 October 2009)

Last Updated: 27 October 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 829

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2937

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MICHAEL ROBERTS

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Mr S. Webb, Member

Date 26 October 2009

Place Canberra

Decision

The decision under review is affirmed.

...................[sgd]...................
Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - Newstart Allowance - voluntary removal from suitable employment - serious failure - voluntary act not reasonable - non-payment period - decision affirmed

Social Security Act 1991 ss 593, 601, 629

Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105

Australian Crime Commission v NTD8 (2009) 177 FCR 263

REASONS FOR DECISION

26 October 2009

Mr S. Webb, Member

1. Michael Roberts was referred into employment by a Job Network Provider. He commenced the employment, but departed on the third day and did not return. Subsequently, Centrelink determined that he had committed a serious failure and imposed an 8-week non-payment period. Mr Roberts pursued his rights to review of this decision, thus far without success.
2. Mr Roberts informed me at the outset that he did not dispute that his Job Network Provider, Caloola, referred him to employment with ACT Recycling at the Mugga Lane Recycling Depot. He accepts that he commenced this work on 13 January 2009 and that it was not unsuitable work for him to undertake. Furthermore, Mr Roberts accepts that he left his place of work at the Recycling Depot at or about 9.30am on 16 January 2009, and he did not return. Being unemployed in consequence, he subsequently lodged continuing claim forms for New Start Allowance. Having considered the evidence, I am satisfied that those facts are properly supported, and I so find.
3. No issues concerning defective notice or erroneous communications were agitated before me in these proceedings. As it appears to me Centrelink properly notified Mr Roberts about his failure and sought additional information from him.
4. Thus, considering sections 593, 601 and 629 of the Social Security Act 1991 (‘the Act’) as they stood at the time, the sole issue remaining for determination is whether Mr Robert’s voluntary action to remove himself from employment with ACT Recycling is reasonable. If it is, there is no bar to continuing payment of Newstart Allowance. If it is not, an 8-week non-payment period will be imposed.
5. Mr Roberts gave a number of reasons for his departure from employment on 16 January 2009. He asserts that he identified two used and uncapped syringes on the recycling conveyor on which he was working and, being frightened of a needle-stick injury, he raised the matter with his Production Supervisor. Mr Roberts says that the Production Supervisor was dismissive and treated him “like an idiot”, telling him “to deal with it”. He says that he was disgusted by the Production Supervisor’s response and attitude, and he promptly “walked away”. He told me that he has a history of problems with anger and he has been imprisoned for a number of related offences – he was very angry but he did not want to assault the Production Manager and face further charges. Mr Roberts gave evidence that he has been a long-term drug user, for more than 20 years, and understands the risks of infection from needle-stick injuries – he said that he had experienced such an injury in 2005 and he spent 3 months waiting for health clearance; he did not want to undergo any such trauma again. Mr Roberts also gave evidence that the job he was referred into was that of a machinery operator, using his ticket to operate an excavator. He says that this is what he did on 13 and 14 January 2009, but there was a leaking hydraulic hose on the particular machine that rendered it unsafe to use. For this reason, he says, he was taken off machinery operating duties and put to work on the recycling conveyor, sorting various materials from building waste. In Mr Roberts’ opinion this work was not what he expected and he was unhappy with it – he said that he “wouldn’t put a dog on it”.
6. Thus, in Mr Roberts’ submission, his action to voluntarily remove himself from employment was reasonable and an 8-week non-payment period should not be imposed.
7. I do not agree.
8. Considering section 629 of the Act, it can be seen that a Newstart Allowance non-payment period arises because a person is “unemployed, due directly or indirectly, to a voluntary act of the person”[1] but “does not apply if the Secretary is satisfied that the person’s voluntary act was reasonable”.[2] There are two things to say about this. The test of reasonableness applies to the voluntary act that gave rise to the person’s unemployment; and the test is an objective one that imports elements of rationality and proportionality in all of the relevant circumstances, including any relevant policy objectives.[3]
9. I note in passing that the Social Security (Reasonable Excuse) (DEWR) Determination 2006 sets out matters that are to be taken into account when determining whether a person has a reasonable excuse for failing to meet their obligations under the Act. Subsection 4(1) of the Determination sets out the specific provisions to which it applies. As can be seen it applies to paragraph 629(1)(d), and sets out matters to be taken into account when deciding whether a person had a reasonable excuse for refusing or failing to accept a suitable offer of employment. The Determination does not expressly apply to the test of reasonableness for the purposes of paragraph 629(1)(b). Nevertheless, the matters set out in subsection 4(2) of the Determination are matters that may be relevant to have regard to when assessing the reasonableness of a voluntary act of a person whereby the person is rendered unemployed. As I have said, that assessment is to be made having regard to all the relevant circumstances.
10. Considering Mr Roberts’ evidence, even if it is accepted as true, I am not satisfied that his action to voluntarily remove himself from employment was reasonable. There is no compelling evidence to suggest that the employment and the particular duties were unsuitable duties for Mr Roberts to perform – the tasks involved sorting materials on the recycling conveyor at ACT Recycling. These tasks may be characterised as manual labour and Mr Roberts has previous experience undertaking manual labouring work.[4] There is no evidence to support Mr Roberts’ assertion that the job he was referred into by Caloola was that of a machinery operator.
11. Even if Mr Roberts is correct, it does not assist his case. Even if it is accepted that Mr Roberts experienced some disappointment and frustration when his expectation of working as a machinery operator on excavators was not satisfied, it does not render his subsequent duties on the recycling conveyor as unsuitable for him to undertake. Moreover, any such disappointment or frustration does not render his voluntary action of removing himself from employment reasonable.
12. Similarly, if it is accepted that Mr Roberts has anger management issues and a history of illicit drug-use, and I have no difficulty in that regard, it does not assist Mr Roberts’ case. I note that Mr Roberts has a criminal record and served a custodial sentence – his parole conditions ceased in or about July 2008.[5] On 27 June 2008 a job capacity assessor reported that Mr Roberts may benefit from certain ‘interventions’ to assist him to cope with his personal history, to obtain more skills and to help him return to the workforce and maintain employment.[6] Mr Roberts asserts that Caloola did not provide him with educational support to complete a qualification in horticulture. That may be so, but it does not bear directly upon the issue of reasonableness that is presently to be determined. On Mr Roberts’ evidence, one of his anger management strategies is to walk away from situations that make him feel angry. That may be a reasonable strategy for him to adhere to – in the circumstances it can be accepted that it was more reasonable for Mr Roberts to walk away from the altercation with the Production Manager than to assault him. But there is a substantial difference between walking away from a situation of conflict in a workplace and leaving that employment entirely. Mr Roberts’ submissions concerning anger management do not render his action to cease his employment with ACT Recycling as reasonable. That conclusion is further reinforced by Mr Roberts’ failure to return to work after a period, having managed his anger, and his failure to communicate his concerns with the ACT Recycling General Manager about the way in which he was allegedly treated, as was his right.
13. I also note Dr A. Lawrence’s evidence that Mr Roberts was enrolled in a community methadone program in June 2009.[7] That is consistent with Mr Roberts’ evidence concerning his previous use of heroin. There is no evidence that this history caused Mr Roberts any difficulties when performing his duties in employment by ACT Recycling in January 2009. There is no evidence that he was under any medical restrictions as a recovering drug user at the time of his employment by ACT Recycling.
14. Mr Roberts’ assertion that it was reasonable for him to leave his employment on the basis that he was concerned about the risk of sustaining a needle-stick injury is not made out. By his own account, he was provided with induction training and was informed of the correct procedure to follow in the event that he came across a hypodermic needle in the course of his work. This, he said, made him feel cautious but there is no evidence that he raised any concerns about attendant issues of risk or safety at that time. It appears that Mr Roberts was provided with safety equipment, including gloves, when working on the recycling conveyor, although he considered the gloves to be of inadequate construction to provide any real protection against a needle-stick injury. There is no evidence that Mr Roberts raised his concerns about the gloves and related safety issues with his supervisor or any ACT Recycling manager.
15. Mr Roberts alleges that when reaching for a bundle of wire he identified two used and uncapped syringes in building waste on the recycling conveyor. He says that he shouted “syringes” and promptly walked away to inform the Production Manager. His evidence is that he was standing at the recycling conveyor at the time, with two or three people to his left – upstream – and four or five people to his right – downstream. There is no evidence to support Mr Roberts’ assertions about these matters. Mr Roberts could not recall the names of any of these people and he could not recall their reactions, if any, to his alleged warning.
16. Even if I accept Mr Roberts’ account, and I have serious reservations about the veracity of his evidence on this point, it does not follow that his action of leaving employment is reasonable in such circumstances. In the circumstances as alleged, it may have been reasonable to raise an alarm or warning and to follow the correct procedure – Mr Roberts says that this is what he did, but the Production Manager was dismissive and treated him like an idiot. By Mr Roberts’ own account, this was the reason he left the workplace. On that basis I do not accept that it was Mr Roberts’ concern about his risk of sustaining a needle-stick injury that caused him to leave. Even if it was, it would still not be a reasonable action in the circumstances – the reasonable course would be to raise any issues of concern about safety or proper procedure or the way in which Mr Roberts alleges that he was treated with the appropriate ACT Recycling manager at the time or soon thereafter. As I have said, leaving employment on the basis that Mr Roberts was unhappy with the Production Manager’s response to his claims concerning syringes, because he was angry, is not objectively reasonable in all of the circumstances.
17. Thus, even on Mr Roberts’ own evidence his case does not succeed.
18. At this point it is appropriate to observe that there are serious issues concerning the consistency and the veracity of Mr Roberts’ evidence. Information set out in a Participation Compliance Workflow report indicates that Mr Roberts informed Peter Samarkos, an ACT Recycling Manager that he was leaving on 16 January 2009 because his daughter had broken her arm.[8] Sometime later, a Caloola case worker, Gary, reported that Mr Roberts had informed him that he had stopped work because he was sick with dysentery and had made no mention of the risk of syringes[9] – although it appears probable that Mr Roberts’ account that he informed his case worker that he “got the shits” and left may be correct. Mr Roberts informed Centrelink that the reason he left was because he found two syringes and he refused to be put at risk of being pricked.[10] The Social Security Appeals Tribunal reported that Mr Roberts said “when he had discovered the syringes he had just ‘got the shits’ and walked off – his workmates on the conveyor would have seen that, but he had not said anything to them about it”.[11]
19. Considering these discrepancies, Mr Roberts’ evidence must be approached with caution and I am reluctant to accept his evidence concerning disputed issues in the absence of corroborating evidence. That being so, the present state of the evidence is not sufficient to establish, to the reasonable satisfaction standard, that Mr Roberts came across two syringes in the course of performing his duties on the recycling conveyor, as he alleges. I am reasonably satisfied, however, that Mr Roberts ‘got the shits’ with his employment on 16 January 2009 and left. He did not return. He presently disavows the explanation he reportedly provided his employer at the time concerning his daughter, and he rejects the explanation reported by his Caloola case worker concerning ill-health.
20. In these circumstances, I am reasonably satisfied that Mr Roberts’ action to voluntarily leave his workplace and his employment with ACT Recycling was not objectively reasonable. I so find. That being so, the exemption from the 8-week non-payment period provided by subsection 629(4) of the Act is not applicable. As Mr Roberts’ unemployment from 19 January 2009 was the direct result of his voluntary action to leave his employment with ACT Recycling, I am compelled to find that Newstart Allowance is not payable to Mr Roberts for the period of eight weeks pursuant to paragraph 629(1)(b) of the Act.
21. It follows that the decision under review is affirmed.
    

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Member S. Webb.

Signed: .....................[sgd]......................................

J. Lakin, Associate

Date of Hearing 22 October 2009

Date of Decision 26 October 2009

Applicant self-represented

Advocate for the Respondent Ms J. Furner, Centrelink Legal Services

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[1] Paragraph 629(1)(b) Social Security Act 1991.
[2] Subsection 629(4) Social Security Act 1991.
[3] Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 at [75]; Australian Crime Commission v NTD8 (2009) 177 FCR 263 at [62].
[4] T4 folio 22.
[5] T4 folio 22.
[6] T4 folio 22.
[7] Exhibit 1.
[8] T7 folio 37.
[9] T7 folio 37.
[10] T7 folio 37.
[11] T2 folio 8.