Lim and Secretary Department of Education Employment and Workplace Relations [2008] AATA 110 (18 January 2008)

Last Updated: 21 February 2008

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 110

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/4228

GENERAL ADMINISTRATIVE DIVISION		)
	Re		TSI (JEREMIAH) LIM

Applicant

And

SECRETARY DEPARTMENT OF EDUCATION EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Senior Member M D Allen

Date 18 January 2008

Place Sydney

Decision

For the reasons given orally at the conclusion of the hearing in this matter, the Decision under review is AFFIRMED.

.................[sgd].......................
M D Allen
Senior Member

CATCHWORDS

NEWSTART ALLOWANCE – review of decision imposing eight-week non-payment period on applicant’s newstart allowance – newstart allowance not payable where job-seeker fails to take reasonable steps to comply with terms of newstart activity agreement – must satisfy activity test – penalty of eight weeks imposed if three participation breaches occur in 12-month period – decision under review affirmed

LEGISLATION

Social Security Act 1991 sections 593(1)(f), 625, 626(1), 626(2)

Administrative Appeals Tribunal Act 1975, section 37

CASE LAW

Secretary, Department of Employment, Education & Youth Affairs v Ferguson [1997] FCA 663; (1997) 76 FCR 426

Lim v Secretary, Department of Employment and Workplace Relations (2006) AATA 70

REASONS FOR DECISION

18 January 2008 Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
   

3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed: [sgd] Mwela Kapapa

........................................................................................

Associate

Date of Hearing 18 January 2008

Date of Decision 18 January 2008

Solicitor for the Applicant Self-represented

Solicitor for the Respondent ATO Legal Services Branch

EXTRACT OF TRANSCRIPT OF PROCEEDINGS [12.07 pm]

MR ALLEN: In this matter, the Applicant seeks review of a decision by a Social Security Appeals Tribunal, who on 21 August 2007 affirmed a prior determination to impose an eight-week non-payment period on the Applicant’s Newstart Allowance. The non-payment period was imposed upon the applicant pursuant to section 625 of the Social Security Act 1991.

The regime which led to the imposition of the penalty is that a payment of Newstart Allowance is made to job-seekers who are unemployed and are looking for work. Section 593 of the SSA provides that, in order to qualify for the allowance, a person must satisfy the Activity Test. Section 593(1)(f) also provides that the person must be prepared to take reasonable steps to comply with a Newstart Activity Agreement. Subsection 1 of section 626 then provides that if a person is required to take reasonable steps to comply with the terms of a Newstart Activity Agreement in order to qualify or to continue to qualify for the allowance and fails to take reasonable steps to comply, a Newstart Allowance is not payable.

A Newstart Activity Agreement is a written agreement in an approved form. As stated, where a job-seeker fails to take reasonable steps to comply with the terms of such an agreement, Newstart Allowance is not payable because of that failure. In this matter, as there has been three breaches of the Activity Agreement, pursuant to SSA those participation failures occurring in a 12-month period, a penalty period of eight weeks was imposed. Subsection 2 of section 626 provides that a penalty is not to be imposed if reasonable steps have been taken to comply and the person has a reasonable excuse for the failure. In this matter, the Applicant signed an Activity Agreement on 20 December 2006 with a provider operating under the name or style of Work Directions.

One of the terms of the agreement was that the Applicant will attend Work Directions Open Access on Mondays, Wednesdays and Fridays from 10 am to 12 pm. In accordance with that agreement, the Applicant was required to attend Work Directions on 8 January 2007, a Monday. On that day, Centrelink determined that the Applicant had committed a Newstart participation failure inasmuch as he had failed to comply with a term of his Activity Agreement, because he did not remain at Work Directions until 12 pm on that day.

The second alleged breach was on 27 February 2007. On 26 February 2007, a further Activity Agreement had been signed by the Applicant, one of the terms of which was that the Applicant attend open access on Work Directions premises on Tuesdays, Wednesdays and Thursdays from 9 am to 12 noon. He had to complete daily activity sheets and have them signed by “Rebecca” before leaving. The 27^th day of February 2007 was a Tuesday. On that day the Applicant did not attend. This non-attendance was regarded by Centrelink as a participation failure.

On 7 March 2007 the Applicant signed another Activity Agreement with Work Directions. One of the terms of that agreement was that the Applicant was to attend open access at Work Directions premises on Mondays, Thursdays and Fridays 1 to 4 pm, complete daily activity sheets and have them signed by Rebecca before leaving. It is not disputed by the Applicant that he did not attend at Work Directions on that day between 1 and 4 pm. This was regarded as a third participation failure.

As stated, the Applicant can be excused for non-attendance if he can show a reasonable excuse for such failure. As to what may or may not be a reasonable excuse, in Secretary, Department of Employment, Education and Youth Affairs v Ferguson [1997] FCA 663; (1997) 76 FCR 426 Mansfield J noted in relation to section 45(5)(b) of the Employment Services Act 1994, which is a similar provision to section 626 subsection (1) of the SSA, that the reasonableness of a person’s conduct is not confined to either external factors or internal matters. It may include personal factors going to his state of mind or his physical condition such as illness. His Honour did not think the provision permitted consideration of matters that were entirely internal such as forgetting.

Senior Member Hunt, in her reasons in the matter of Lim v Secretary, Department of Employment and Workplace Relations (2006) AATA 70, added after a reference to Ferguson supra, “I do not consider that feeling tired or disillusioned about the usefulness of the activity is an excuse for non-attendance.” I would also point out that the Lim referred to in the matter dealt with in the matter by Senior Member Hunt is the same person as the present Applicant. It cannot be said, therefore, that he was not cognisant of the provisions of the SSA which applied to failure to comply with Work Activity Agreements.

Dealing with the various participation failures, on 8 January 2007 the Applicant stated that he had been at Work Directions but left early as another job-seeker wanted to talk to him in private about a possible business opportunity. He says he was there from 9.30 am to 11 am. The point, as I see it, with this failure is that at no time did the Applicant advise his supervisor that he was in fact leaving.

I note that a file note from the work provider, which is dated 1055 hours, action was taken regarding a possible position for the Applicant but that at 1110 hours it was found that the Applicant was no longer on the premises. It seems to me that by failing to advise his case manager that he was leaving, not only did the Applicant fail to have a job opportunity brought to his attention, but it was a breach of the Work Activity Agreement and I can see no excuse for leaving without notification to his supervisor, even if the supervisor may, in the circumstances at the time, have countenanced an early departure.

As to 27 February 2007, the Applicant stated that he didn’t attend as he had a meeting with the director of Abbey College about a possible business opportunity. Quite frankly, I don’t believe the Applicant. This director is known to the Applicant only as Sam, no surname, and I note that at one stage he informed the investigating officer that he had an interview with Abbey College “near Town Hall” and that he might get evidence. In evidence to the Tribunal today, he said that Abbey College was at Haymarket and it is, I think, notorious in the city of Sydney that the Town Hall is not situated at Haymarket. The note also says “he may get evidence.” No evidence has been obtained and the Applicant said, so far as the director of Abbey College is concerned, “I didn’t want to get a statement from him for personal reasons.” He did not elucidate further.

It seems to me that it’s quite clear that there was a breach on the 27^th and no reasonable excuse has been proffered.

So far as the breach on 27 April 2007 is concerned, the non-attendance by the Applicant is, I believe, encapsulated in an email received by Work Directions from the Applicant which begins:

I want you to know coming to the office is a pain and a waste of my precious time.

It then continues but I do not regard it as necessary to go further. The Applicant was contacted by telephone later in the afternoon of the 27^th. He actually called to the service provider, replying to their phone call to him.

That phone call is timed at 1500 hours. The note reads:

Explained that I was calling to see why he was not at JobSearch this afternoon. He said that we were draining him and that he believes that he shouldn’t have to come in here as all he does is pretend to look for work. He said that looking for work will not find him a job.

At that stage, as far as I am concerned, the Applicant had a non-attendance and there was no reasonable excuse. I note that he later, at about 24 minutes past 5, attended at the office and spoke with an officer there complaining about the service. That does not, in my opinion, excuse the failure to comply with the Work Activity Agreement.

The Applicant has stated that various failures to comply with the strict terms of a Work Activity Agreement were tolerated and condoned by Work Directions. He referred, for example, to 16 April, which is a notation contained at T28, page 127 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. That reads:

16 April ’07 Phi Kang Lim attended JobSearch Thursday 9 am to 12 noon today

the point being that it refers to a Thursday whereas 16 April in the year 2007 was a Monday, so quite clearly it is in error.

Another matter he referred to was 20 March 2007. The event was recorded as having occurred at 14 minutes past 9, but simply records, “At JobSearch today instead of Monday.” The entry 13 March I believe doesn’t take matters further but simply says that the Applicant spent a significant amount of time at Work Directions premises. It’s timed at 0920 hours which seems to in some ways be inconsistent but as far as I can see it is not proof of factors excusing breaches of the Work Activity Agreement.

So far as the three breaches referred to specifically, on the evidence before me they can’t be excused. No reasonable excuse has been offered and the decision under review is affirmed.

END OF EXTRACT [12.29 pm]