Editors --- "Unemployment due to misconduct as a worker: definition of 'misconduct'" [2009] SocSecRpr 5; (2009) 11(1) Social Security Reporter, Article 5

• STEINER and SECRETARY TO THE DEEWR
• Background
• Law
• Discussion
• Formal decision

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Unemployment due to misconduct as a worker: definition of "misconduct"

STEINER and SECRETARY TO THE DEEWR

(2008/1034)

Decided: 18th November 2008 by I. Alexander

Background

Steiner was employed on 15May 2007 for a probationary period of three months. On 24 May 2007 he signed and dated an employment agreement handbook that contained a number of company rules including ‘no drugs or alcohol in the workplace’ and ‘no presenting to work under the influence of drugs or alcohol’.

Steiner was summarily dismissed from his employment on 17 July 2007 after failing a random alcohol test. His employer indicated on his employment separation certificate that the reason for his separation was failure to pass a random alcohol test resulting in a breach of his employment contract.

When he subsequently claimed newstart allowance Centrelink applied an eight week non-payment penalty pursuant tos.629(1)(c)of the Social Security Act 1991 (the Act) on the ground that he had become unemployed due to misconduct as a worker. This decision was affirmed by the Social Security Appeals Tribunal.

Steiner argued that his actions did not amount to misconduct. He argued that he had ceased drinking at 9.30pm the night before in accordance with an alleged agreement with his employer and would not have gone to work if he had realised his blood alcohol level was elevated. Further he argued he should have been given a first warning as outlined in his employment agreement. He conceded that he was aware of the mine’s policy that employees could not work unless their blood alcohol was zero.

Law

Subsection 629(1) of the Act provides that:

A newstart allowance is not payable to a person, for a period of 8 weeks starting in accordance with section 630, if the person:

(c)...is unemployed due to the person’s misconduct as a worker...

Misconduct is not defined in the Act.

Discussion

The AAT held there was nothing in the legislation requiring it to consider whether Steiner’s actions could be regarded as misconduct justifying dismissal and further, that it had no jurisdiction to consider whether the dismissal was ‘unfair’. Rather, the question for consideration was whether Steiner was dismissed by his employer for perceived misconduct as a worker and not for some other reason.

he Tribunal referred to Secretary, Department of Education, Employment and Workplace Relations and Dates [2008] AATA 54 at 16 where it was stated:

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. (Reasons para. 23)

With regard to what constitutes ‘misconduct as a worker’, the Tribunal referred to Secretary, Department Employment and Workplace Relations and Payne [2007] AATA 1745 at 63 where it was stated that:

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.(Reasons para. 24)

The Tribunal decided that Steiner’s conduct was considered by his employer to amount to misconduct as a worker and that this was the reason for his dismissal and:

“Once it is accepted that Steiner became unemployed due to his misconduct as a worker, s 629(1) of the Act makes mandatory a non-payment of Newstart Allowance for a period of eight weeks”. (Reasons para. 26)

Formal decision

The AAT found that Steiner did become unemployed due to misconduct as a worker and affirmed the decision under review.

[A.M.]