Editors --- "Newstart allowance: serious participation failure; whether dismissed from employment for misconduct" [2008] SocSecRpr 13; (2008) 10(1) Social Security Reporter, Article 13

• SECRETARY TO THE DEEWR and DATES
• Background
• The law
• The evidence
• Consideration
• Formal decision

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Newstart allowance: serious participation failure; whether dismissed from employment for misconduct

SECRETARY TO THE DEEWR and DATES

(2008/0054)

Decided: 18th January 2008 by M.D. Allen

Background

Dates’ employment as a driver was terminated by his employer, D.C.T. Pty Ltd. An ‘Employment Separation Certificate’ issued by D.C.T. was presented to Centrelink as part of Dates’ claim for newstart allowance. The certificate stated that Dates was dismissed because of misconduct. The SSAT decided that Dates’ conduct was not such that justified dismissal, so should not have been treated as such for the purposes of the social security law.

The law

The question before the Tribunal was whether or not Dates was dismissed from his former employment because of his ‘misconduct as a worker’. If so, he had committed a ‘more serious participation failure’, the consequence of which, according to s.629(1) of the Social Security Act 1991 (the Act)was that he was not eligible to be paid newstart allowance for eight weeks.

The evidence

The Tribunal heard oral evidence from both Dates and his ex-employer’s Payroll Officer, Easter.

Easter’s evidence was that Dates had arranged for his son, Craig Dates, to drive a company vehicle for him without first informing the company. The company was only advised of this when a third party contacted the company offices. Easter further gave evidence that the company’s policy in cases where an employee was unable to carry out their duties as a driver and wanted to propose a replacement driver was that the casual replacement driver would first have to be approved by the company. If the company had been aware that Craig Dates was the proposed driver, they would not have approved him.

Dates gave evidence that he could not find the normal relief driver to replace him on one of his drives. He stated that he telephoned the company’s head office in Queensland and spoke to a person he knew as ‘Alf’. Alf reportedly told Dates to find someone to take his place. Dates’ evidence was that he told Alf that he would put his ‘young bloke in it’, and that Alf agreed. Alf was no longer employed by the company.

Easter also gave evidence, that was not challenged by Dates, that the company was not asked to pay Craig Dates directly for the work done, as was the usual arrangement when a relief worker was used. Instead, Craig Dates was to be paid directly by Dates. The Tribunal drew an inference from this evidence that this was done in order to hide from the company the fact that Craig Dates was replacing Dates.

Consideration

The Tribunal stated that it did not see its role in this case as one requiring a determination of whose version of the events leading up to the dismissal were correct. In the Tribunal’s opinion it was not necessary for it to decide whether or not a person’s conduct at work should be regarded as misconduct justifying dismissal. In adopting this approach the Tribunal made clear that it considered as misconceived the approach adopted by the SSAT and by differently constituted Tribunals. The Tribunal stated at para. 16:

My task, as I understand the legislation in question namely paragraph 629(1)(c)... is to satisfy myself that the dismissal of the former employee was for perceived misconduct and not some other reason. Thus although an Industrial Tribunal or Court may regard the impugned conduct as not amounting to misconduct justifying dismissal, that is not my jurisdiction. All I need to satisfy myself is that the employer dismissed the former employee because of conduct engaged in by the employee and which the employer regarded as terminating the mutuality of the contract of employment and not for some other reasons.

The Tribunal thus restricted its role in this case to the bare question of whether or not Dates was dismissed for misconduct as a worker and not for some other reason. The Tribunal cited the decision in Secretary to the DEWR and Payne (9(1):

What amounts to misconduct and to a person’s being unemployed due to misconduct at work can only be answered against the background of a particular employee’s circumstances in a particular workplace.

The Tribunal thought it sufficient in this matter that the company took the view that Dates’ actions amounted to misconduct as a worker, and that he was dismissed for this reason. For this reason, s.629(1)(c) was made out, and newstart allowance was not payable to Dates for a period of eight weeks.

Formal decision

The Tribunal set aside the decision of the SSAT.

[D.A.]