La Cava and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 269 (16 April 2010)

Last Updated: 16 April 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 269

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/0516

GENERAL ADMINISTRATIVE DIVISION		)
	Re		PAOLO (PAUL) LA CAVA

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Mr S Karas, AO, Senior Member

Date 16 April 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

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

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Newstart allowance – Voluntary unemployment – No reasonable justification – Decision affirmed.

Social Security Act 1991 (Cth) s 593

Social Security (Administration) Act 1999 (Cth) s 425

Ghorbanpour and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 101

Sullivan and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1156

REASONS FOR DECISION

16 April 2010

Mr S Karas, AO, Senior Member

BACKGROUND

1. Paolo (Paul) La Cava (the applicant) commenced work with SGS Australia Pty Ltd (SGS) on 2 July 2009. He initially worked at the Dalrymple Bay Coal Terminal. It appears the applicant left SGS on 3 November 2009 and did not work with that company after that date.
2. On 9 November 2009, the applicant contacted Centrelink in order to claim Newstart Allowance. On 25 November 2009, Centrelink determined that payment would not be made for the 8 week period from 4 November 2009 to 29 December 2009 on the basis that the applicant became unemployed voluntarily as a result of forfeiting his employment at SGS on 3 November 2009.
3. The applicant sought review of that decision. By letter dated 22 December 2009 he was notified by an Authorised Review Officer at Centrelink that the decision had been affirmed. The Social Security Appeals Tribunal (SSAT) affirmed that decision on 3 February 2010. On 8 February 2010, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the SSAT’s decision. The Tribunal ordered that the implementation of Centrelink’s decision be stayed until the decision of the Tribunal on the application for review comes into operation or until further order of the Tribunal.

ISSUES AND LEGISLATION

4. The issues for the Tribunal to determine are:
   • (a) Whether the applicant became unemployed as a result of his own voluntary act on 3 November 2009; and
   • (b) If so, whether the voluntary act was reasonable.
5. The relevant legislation that must be considered is the Social Security (Administration) Act 1999 (Cth) (the Administration Act) and the Social Security Act 1991 (Cth) (the Act).
6. Section 593 of the Act provides general requirements regarding qualification for New Start Allowance. Section 42S of the Administration Act states that an eight week unemployment non-payment period applies if a person is unemployed as a result of a voluntary act of the person which is not a reasonable act. Under s 425(2) of the Administration Act an unemployment non-payment period does not apply if the voluntary act that led to the person’s unemployment was reasonable. As a simple guide, a person would have a reasonable excuse for the voluntary act that led to their unemployment if there was some event beyond their control or other personal factors that prevented that person from doing what was required.

EVIDENCE

7. A hearing of this matter was held at the Tribunal on 1 April 2010.
8. The applicant stated that he disagreed with the outcome of the earlier decision as he had contacted his employer SGS Human Resources regarding the incident at Dalrymple Bay in October 2009 involving Dennis Groves, his manager and his concerns about being spoken to “in a poor fashion”. He referred to a telephone call with Dennis’ wife and how it led to him chasing up and looking into the matter further. He told another manager, Angela that he could not work at Dalrymple Bay any longer and suggested that he work with the company in Mackay as had been the case with other employees.
9. The applicant commenced work at SGS on 2 July 2009 and after two days of induction in Mackay he worked at the Dalrymple Bay Terminal.
10. He had no real issues with anyone else at work but he did not like how Angela and Dennis treated him. He referred to some incidents involving himself and other employees and how he thought “it was unnecessary to speak to an employee” in the way that they did.
11. The applicant stated that he quit after working all day in Mackay on 3 November 2009. He had previously had a meeting with Angela and Geoff about his situation and agreed to work in Mackay. The meeting had made the applicant feel uncomfortable, pressured and he felt that he had been spoken to in an “unprofessional manner”. After the meeting he worked his shift on Melbourne Cup day 3 November 2009 finishing at 1:00pm and never returning to work for SGS. He did not notify anyone of his intentions to not show up for work the next day. The applicant then went to Centrelink in Mackay and claimed Newstart Allowance.
12. The applicant described his health as being “pretty good”. He is not on medication and has not been hospitalised. He has seen a counsellor at Centrelink since early this year and he does not see a doctor regularly. He had no health problems at the time he left SGS in November 2009.
13. It was not common knowledge among the applicant’s workmates that he felt as though he had been mistreated by management. He feels he would still be in employment at SGS had he not been alienated by the way he was spoken to at the meeting with Angela. Work was not an issue.
14. The applicant confirmed that SGS had found him a position in Mackay after the meeting with Angela on 2 November 2009. Although human resources at SGS “did their best” he feels he was not “fairly treated” and left the company.
15. Reference was made to the “Employment Separation Certificate” (T5 p 37) where it was indicated he was “sacked” for “unsatisfactory work performance”. However, this was corrected in the record where it was noted the applicant “was not terminated, he had abandoned his employment”. (T 11/43)
16. The applicant indicated he got along well with his team leaders and had no issues with his new supervisor Greg.
17. For the respondent Mr Hawker argued that the applicant’s account of events contained in T7 is a more truthful reflection of the applicant’s feelings and reactions to his meeting with Angela than what he recalled in his oral evidence. Mr Hawker referred to the fact that as a result of the meeting with Angela, she took reasonable steps to accommodate the applicant by relocating him to Mackay.
18. It was submitted on behalf of the respondent that the applicant’s act of leaving was not reasonable. In support of these submissions Mr Hawker referred to: Sullivan and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1156 and Ghorbanpour and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 101 at [18]. Mr Hawker concluded by requesting that based on the evidence, the decision under review should be affirmed and that the stay order of the Tribunal dated 11 February 2010 be lifted.

CONCLUSIONS AND FINDINGS

19. The Tribunal recognised that the applicant does not dispute that he left work voluntarily and without any notice to his employer. He did maintain that his actions were justified and gave the impression that he would have still been working at SGS but for the deterioration of his relationship with his supervisor at Dalrymple Bay and the manner in which he was addressed by Angela at the meeting on 2 November 2009. It does however appear that SGS sought to retain the applicant by arranging alternate employment for him in Mackay with a new supervisor.
20. From the evidence and material before it, the Tribunal finds that the applicant voluntarily left his employment with SGS on 3 November 2009. The Tribunal notes the applicant had no medical condition at the time to make his continued employment at SGS unsuitable. His employer had addressed his concerns by providing him alternate work arrangements under a new supervisor in Mackay. The applicant had worked only one shift at the new work site before leaving his employment without notice and without having raised any concerns about his new work site with his employer. In all of the circumstances, the Tribunal finds that the applicant’s voluntary act of leaving his employment on 3 November 2009 and not showing up for work at SGS again was unreasonable. In considering the reasonableness of the applicant’s actions under s 425 of the Administration Act, the Tribunal has had regard to the evidence and information before it and to the Tribunal cases referred to above. Consequently given the Tribunal’s findings and decision the stay order dated 11 February 2010 in this matter is lifted accordingly.

DECISION

21. The Tribunal affirms the decision under review.
    

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

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

Kate Slack, Research Associate

Date/s of Hearing 1 April 2010

Date of Decision 16 April 2010

The Applicant was self represented

For the respondent: Matthew Hawker, Sparke Helmore Lawyers