Zimny and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 7 (12 January 2011)

Last Updated: 13 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 7

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2916

GENERAL ADMINISTRATIVE DIVISION		)
	Re		JOHN ZIMNY

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Date 12 January 2011

Place Melbourne

Decision

The Tribunal affirms the decision under review.

(sgd) John Handley
Senior Member

SOCIAL SECURITY – newstart allowance – unemployment as a result of a voluntary act – whether work unsuitable - whether resignation reasonable – eight-week unemployment non-payment period – ending non-payment period – whether severe financial hardship – class of persons specified in legislative instrument.
Social Security Act 1991 ss 14A(1), 14A(7) and 601(2A)

Social Security (Administration) Act 1999 ss 42A and 42S(1)-(3)
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251

REASONS FOR DECISION

12 January 2011

Mr John Handley, Senior Member

1. Mr Zimny (the applicant) was employed by De Neefe Signs Pty Ltd (De Neefe) as a press operator between 29 July 2009 and 30 March 2010. He resigned from the employment on the basis that it was unsuitable. He subsequently made a claim for Newstart Allowance (NA) which is a participation payment within the meaning of s 42A of the Social Security (Administration) Act 1999 (the Administration Act).
2. On 23 April 2010 Centrelink decided that the applicant’s unemployment resulted from a voluntary act that was not reasonable and imposed an unemployment non-payment period of eight weeks (s 42S(3) of the Administration Act). The applicant was precluded from receiving NA between 31 March 2010 and 25 May 2010.
3. An authorised review officer (ARO) affirmed the decision on 26 May 2010. The ARO’s decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 23 June 2010.
4. On 15 July 2010 the applicant applied to the Tribunal for review of the SSAT’s decision.

LEGISLATION

5. Section 42S of the Administration Act provides that a participation payment is not payable during the unemployment non-payment period if a person became unemployed as a result of a voluntary act. The section also provides that an unemployment non-payment period will not be imposed if the voluntary act was reasonable (s 42S(2)). The Administration Act does not define reasonableness.
6. In Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, McHugh J at 410 decided that the word reasonable should be given its ordinary meaning. Additionally, the Full Court of the Federal Court in Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 at 263 decided that reasonableness is to be determined objectively. I agree that standard should be applied in the present application no less because it involves expenditure of public monies.
7. The Guide to Social Security Law (the Guide) provides guidelines for decision makers. Paragraph 3.1.13.80 provides that all the circumstances of the case should be considered, including the suitability of the work.
8. The Guide refers to the criteria in s 601(2A) of the Social Security Act 1991 (the Act) which defines unsuitable work for the purposes of the activity test. Neither the Act nor the Administration Act require a decision maker to consider the factors in s 601(2A) for the purpose of s 42S. However, the factors may assist in determining whether the voluntary act was reasonable. In summary, work is unsuitable if the person lacks the necessary skills or qualifications, the person’s medical condition will be aggravated by performing the work, the person is the principal carer of children and does not have access to appropriate care and supervision of the children, the work place poses a risk to health and safety, the terms and conditions are less generous than as prescribed by law, commuting to the place of work is unreasonably difficult, the work requires enlistment in the Defence Force or Reserves or the work requires the person to move to another place.
9. Section 42S(4) of the Administration Act allows the Secretary to end the unemployment non-payment period if serving it would cause severe financial hardship and the person is within a class of persons specified by a legislative instrument (Social Security (Administration) (Ending Unemployment Non-payment Periods – Classes of Persons) (FaHCSIA) Specification 2009 (No. 1) – Legislative Instrument F 2009 L02624). Section 14A(7) of the Act provides that a person is in severe financial hardship if the person’s liquid assets does not exceed the person’s maximum reserve. The maximum reserve is defined as $2,500 (s 14A(1) of the Act). The classes of persons to whom s 42S(4) applies are those with significant family and caring responsibilities, the ill or impaired who are unable to afford treatment after essential expenses, those with cognitive, neurological, psychiatric or psychological illness, and those who do not have access to safe, secure and adequate housing.

EVIDENCE

10. The documents lodged by the respondent prior to the hearing indicated that the applicant resigned from his employment with De Neefe for various reasons, including, his dissatisfaction with the rate of salary. The applicant did not pursue this at the hearing.
11. The applicant agreed in evidence before the Tribunal that he voluntarily left his employment which is consistent with a statement he made on 20 April 2010 (T6). The applicant said he sought review of the decision because the SSAT concluded that his reasons for leaving the employment were unreasonable. The applicant said that he had difficulties with Tim Carroll, his supervisor, who was verbally abusive, monitored his whereabouts and constantly questioned him. The period of time occupied by him in travelling to and from work daily was also onerous. He submitted that these reasons constituted a reasonable basis for him resigning.
12. Mr Noonan who appeared on behalf of the respondent lodged a statement from Mr Carroll who stated that De Neefe has a no smoking policy during working hours. The policy specifies the times designated for cigarette breaks. He recorded that he warned the applicant on at least one occasion to cease smoking during work hours.
13. The applicant had a copy of the statement of Mr Carroll. He said he did not dispute its contents.
14. The applicant said that Mr Carroll had upset him in the workplace. He said he and Mr Carroll frequently argued about work duties, principally involving the setting up of machinery. He agreed that he did smoke cigarettes at a greater frequency than permitted by the company’s smoking policy and said so did everyone else. He referred to Mr Carroll on a number of occasions in terms which were less than flattering and need not be repeated in these reasons.
15. The applicant said that he complained to the manager about the manner in which he was treated by Mr Carroll and said that he would no longer put up with him. He gave two weeks notice but was asked by the manager to reconsider and be diplomatic towards Mr Carroll. During the subsequent period of two weeks, the applicant said that the relationship between him and Mr Carroll did not change and he decided to end the employment. He agreed that his resignation was voluntary.
16. During the period that he was employed by De Neefe, the applicant said that he resided in Coburg. He drove his car to the workplace which was located in Eltham. He said that subject to traffic, the journey to and from work was between 45 and 60 minutes. He started work at 7.30 am and finished at 4.30 pm.
17. The applicant was unrepresented in these proceedings. I asked him to consider paragraph 4 of legislative instrument F 2009 L02 624 in order to determine, subject to any findings that I would make under s 42S(1)-(3) of the Administration Act, whether he was within a class of persons that might permit a finding of ending the unemployment non-payment period.
18. The applicant said that at the date he resigned, he was living in Coburg with his mother who suffered from emphysema, arthritis and dementia. He said that during the day whilst he was at work, his mother was cared for by his sister and brother. When he returned home at the end of each work day, he said he would care for his mother, do the shopping and pay bills. He said the care of his mother was shared between his sister, his brother and himself.
19. The applicant agreed that the remaining parts of paragraph 4 of the legislative instrument had no application to him, namely; he did not have an illness or an impairment that required treatment which he could not afford treatment; he did not have a cognitive neurological or psychiatric impairment or mental illness; nor was he a person who did not have access to safe, secure and adequate housing.

CONCLUSION

20. It is not in dispute that the applicant became unemployed on 31 March 2010. It is also not disputed that the applicant became unemployed by a voluntary act on his part.
21. Viewed objectively, I am not satisfied that the voluntary act of terminating the employment was reasonable.
22. The applicant acknowledged that the employer did impose a non smoking policy during working hours and designated specific times and periods each day in which employees were permitted to have cigarette breaks. He admitted that he did not adhere to that policy and did smoke cigarettes outside the designated times.
23. It is my view that an employer is empowered to implement and enforce a policy of the type exercised at De Neefe.
24. The applicant was employed for eight months between 29 July 2009 and 30 March 2010. It is not known whether he was in breach of the no smoking policy throughout that period but the very clear impression given by the applicant during the hearing was of a very poor and intolerant attitude towards Mr Carroll. It would appear that the antagonism felt by the applicant towards him was not confined only to being disciplined about smoking outside of the designated hours but extended to the manner in which Mr Carroll supervised his work performance.
25. In a record of interview with the applicant by the Job Network provider on 23 April 2010 (T4, p16), the applicant is recorded as having felt harassed and stressed by the employment. During the interview, he is also recorded as saying that he was with the company for seven months and questioned every time he moved. When going on toilet breaks and cigarette breaks he was asked by the supervisor where he was going.
26. I am not satisfied that the applicant was exposed to the conduct that he alleged. He was employed with the company for eight months. If he was being subjected to the harassment as alleged, having observed the applicant during the hearing, I doubt that he would have been able to withstand it for eight months or for seven months as he informed the Job Network provider.
27. An employer is entitled to impose a no smoking policy during working hours. Many workplaces impose a blanket prohibition upon smoking during working hours. The policy of De Neefe does not appear to be unreasonable. The Job Network provider recorded that the applicant said that he was taking 3 breaks per day for less than five mins outside of normal breaks (T4, p 17). That is to say, the applicant took five smoking breaks per day when the employer’s policy permitted two. Thus, it is not surprising that his supervisor felt compelled to challenge him. Accordingly, I am not satisfied that the applicant was subjected to harassment or abuse in his employment with De Neefe.
28. Additionally, I am not satisfied that the times occupied by the applicant travelling to and from work constituted a reasonable basis for his voluntarily becoming unemployed. Many persons travel to and from a workplace in a journey which occupies between 45 minutes and 1 hour daily each way. There was no evidence presented or submissions made by the applicant to indicate that the duration of the journeys undertaken by him each work day was unreasonably difficult. I am not satisfied that it was reasonable for him to resign on the basis of the time required to travel to and from work. Whilst it may have been onerous, as he alleged, it was not unreasonably difficult.
29. The applicant is unemployed because he resigned from his employment. Accordingly, his unemployment is the result of a voluntary act. Viewed objectively, none of his reasons alone or in combination for resigning were reasonable. Therefore, the unemployment non-payment period of eight weeks was correctly imposed in accordance with s 42S(3) of the Administration Act.
30. The unemployment non-payment period may be ended if a person is in severe financial hardship and is within a class of persons specified in legislative instrument Nº F 2009 L02 624.
31. Section 42S(4) of the Administration Act provides that the unemployment non-payment period can be ended if a person will suffer severe financial hardship and is in a class of persons identified in a legislative instrument. The respondent concedes that the applicant was in severe financial hardship at the date of unemployment. However, I am not satisfied that the applicant is within the class of persons identified by the legislative instrument. As referred to earlier, the only class to which the applicant may belong is persons who have significant family and caring responsibilities.
32. The applicant worked Monday to Friday and allowing for the periods of time occupied commuting to and from work and by regard also to the hours worked he would have left home at either 6.30 or 6.45 am and returned at 5.15 or 5.30 pm. During the times that he was not at home the care of his mother was undertaken either by his sister or by his brother. His mother was not infirm and her time was occupied in the home watching television or completing jigsaws. The applicant said that his responsibility, and that of his siblings, was mainly to keep an eye on her. On weekends the applicant said that he purchased groceries and other provisions and paid bills.
33. By the description given by the applicant, I do not find that he did have caring responsibilities which were significant. I do not doubt that he did have some responsibilities towards his mother but it was shared with his siblings. He was away for 11 hours during each work day and there was nothing which pointed to his mother needing him to assist her with bathing, toileting or dressing; preparing her meals and feeding her; or allocating medication. Those types of activities would fall within the description of caring responsibilities which would be significant. On the applicant's description his responsibility was mainly to keep an eye on her. That does not amount to significant caring responsibilities.
34. In those circumstances, I am not satisfied that the unemployment non-payment period should have been ended.
35. The decision under review is affirmed.

I certify that the thirty-five [35] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

Signed: Olympia Sarrinikolaou

Legal Assistant

Date of Hearing 15 September 2010

Date of Decision 12 January 2011

Advocate for the Applicant Self-represented

Advocate for the Respondent Mr T. Noonan, Centrelink Advocacy Branch