Editors --- "Leaving job voluntarily: occupational health and safety concerns; reasonable excuse for leaving work" [2009] SocSecRpr 27; (2009) 11(3) Social Security Reporter, Article 5

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Leaving job voluntarily: occupational health and safety concerns; reasonable excuse for leaving work

PYMBLE and SECRETARY TO THE DEEWR

( 2009/226)

Decided: 3rd April 2009 by R. Hunt

Background

Pymble had been in receipt of newstart allowance since February 2005, and in September 2007 entered an Activity Agreement under which he agreed to accept all referrals to suitable positions. He attended an employer on 22 November 2007, but left work during the morning tea break and did not return or contact the employer again. Pymble told the Tribunal that he had been advised that he was being offered a maintenance position, which he expected would involve light duties such as mowing lawns or trimming, but on arrival was instructed by the employer to unload bales of hay from a truck. He did this until the morning tea break, by which time it was raining and his clothes were wet, and then went home to change his clothes, but did not return. He argued that there was an occupational health and safety risk as the back of the truck was slippery from the rain. In December 2007 Centrelink imposed an 8 week non payment period on Pymble, a decision affirmed by the SSAT in April 2008.

At the Tribunal hearing Pymble’s ex-wife gave evidence of his several health concerns, including a recent hernia operation, several hospital admissions, and cirrhosis of the liver. There was no evidence on Centrelink files of these concerns having been reported, and the only medical evidence available to the Tribunal to support these claims was a doctor’s certificate dated March 2009 which stated that Pymble suffered from alcoholism and cirrhosis. However Centrelink had in February 2008 obtained an independent job capacity assessment report from an ‘intern psychologist’ which had concluded that Pymble suffered from alcohol dependency and that this might contribute to problems with his job attendance, performance and safety.

The issue

In this matter the issue was whether Pymble’s decision to leave work, and to not return, was reasonable.

The law

The qualifications for newstart allowance are contained in s.593 of the Social Security Act 1991 (the Act) which requires that a person must satisfy the activity test to qualify. The activity test can be met by undertaking suitable work

(s.601(1A)(a)). An eight-week nonpayment period can be imposed if the person commits newstart participation failures or various other failures (s. 629). One such failure occurs if the person becomes unemployed due to a voluntary act (s.629(1)(b)), unless the voluntary act which brought about the unemployment is excusable on the basis that it was reasonable (s.629(1)(d)).

Discussion

The Tribunal noted that although there was no confirmation of Pymble’s hernia operation, there was independent confirmation of his alcohol dependence and cirrhosis. The Tribunal also noted that The Social Security (Reasonable Excuse) (DEWR) Determination 2006 referred to drug and alcohol dependence as factors which must be taken into account when determining whether a person has a reasonable excuse for refusing or failing to accept an offer of suitable employment. Accepting that Pymble’s decision to leave work was voluntary, the Tribunal nonetheless concluded that he had found the job unsuitable due to his health and safety concerns, and that the factors noted in an independent job capacity assessment report of February 2008 (viz. that he suffered from alcohol dependency and that this might contribute to problems with job attendance, performance and safety) had affected his actions on the day concerned.

On balance, the Tribunal concluded that Pymble’s alcohol dependence meant that he had a reasonable excuse for leaving work voluntarily and so (through that action) refusing employment.

Formal decision

The Tribunal set aside the decision under review and substituted the decision that Pymble should not be subject to an 8 week non-payment period in respect of his voluntary decision to leave employment in November 2007.

[P.A.S.]