Editors --- "Non payment period: unemployment due to misconduct or voluntary act; whether voluntary act was reasonable" [2010] SocSecRpr 11; (2010) 12(1) Social Security Reporter, Article 11

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Non payment period: unemployment due to misconduct or voluntary act; whether voluntary act was reasonable

SECRETARY TO THE DEEWR and DUNCAN

(2009/943)

Decided: 9th December 2009 by I. Alexander

Background

Duncan was employed at Castle Chemicals Pty Ltd from 23 July 2007 to 11 September 2008. Duncan’s employment separation certificate stated that he was discharged following a ‘physical altercation with workmate’ and Centrelink imposed an eight week non-payment period on his newstart allowance pursuant to s.629 (1) (c) of the Social Security Act 1991 (the Act) because Duncan had become unemployed due to his misconduct as a worker. The Social Security Appeals Tribunal (SSAT) affirmed the decision to impose the eight week non-payment period.

Issues

Duncan argued that he had been unfairly treated by the employer and that the demands of the employer were not reasonable and that he had therefore decided not to return to work even though he knew it would mean losing the job. Centrelink argued that the employment separation certificate stated that Duncan was dismissed for misconduct as an employee.

Legislation

Section 629 (now repealed) of the Act in force on 7 October 2009, governed the application of non-payment of new start for serious failure and sub. (4) allowed the Secretary to consider the exception:

4(1) A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:

...

(b) is unemployed due, either directly or indirectly, to a voluntary act of the person; or

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

...

5(4) Paragraph(1)(b) does not apply if the Secretary is satisfied that the person’s voluntary act was reasonable.

Evidence

The AAT considered the documentary evidence and Duncan’s oral evidence. Duncan explained that he had been sprayed with a liquid by another employee, Mr P. Duncan was concerned that the liquid may have been acid and/or solvent and that, as he walked to the toilet facility to wash it off, Mr P continued to verbally abuse him and they physically grabbed each other. They were separated by the foreman.

Mr P was a long standing employee; treated more favourably than other employees. Duncan said he was aware that at least four employees had been dismissed following difficulties with Mr P, that there had been numerous complaints to the management about him, and that any improved behaviour was only short-term.

Duncan was stood down for two days; Mr P was allowed to continue to work. Duncan was told that if he wished to continue his employment he would have to apologise to the employees who witnessed the altercation and to other members of the company; he would have to attend six sessions with a counsellor in his own time and perform extra duties for the same pay. Because Duncan did not attend at 7.30am as requested, and apologise, his manager sent him a text stating that his employment was terminated.

Duncan felt that he was being treated unfairly in the workplace. Duncan’s partner confirmed that he had been affected by the difficulties at work and the harassment by Mr P for some time.

Duncan and his partner were no longer able to afford accommodation and he now lived with his mother. His partner and their two daughters, aged 1 & 2, were living with the maternal grandmother.

Consideration

The first issue to determine was whether Mr Duncan’s unemployment was due to his misconduct as a worker. The Tribunal said that ‘Notwithstanding the fact that the employment separation certificate states that Mr Duncan was dismissed because of his misconduct as an employee I consider, on the evidence before me, that the reason for his unemployment warrants further examination’.

The AAT accepted that the incident in which Mr Duncan was involved could clearly be considered as misconduct as a worker. The AAT also noted that there was nothing in the legislation that required the tribunal ‘to consider whether Mr Duncan’s actions could be regarded as misconduct justifying dismissal’ and that ‘any question as to whether his dismissal was unfair’ was not a matter within the jurisdiction of the tribunal.

The question, therefore, was whether the evidence supported a conclusion that Duncan was unemployed due to his misconduct as a worker or for some other reason.

The AAT reached the conclusion on the facts of the case that Duncan was stood down but not dismissed after the altercation with another worker and that his employment would have continued if he had accepted the conditions demanded by his employer. In fact Duncan was dismissed after he failed to return to work on the designated day and to apologise to the other employees. In those circumstances the AAT concluded that his employment was terminated due to his voluntary act of failing to agree to the conditions demanded by his employer.

The AAT accepted that Duncan had had recurring difficulties in the workplace, that the behaviour of the other employee was not being managed appropriately and that Duncan believed that the workplace was unlikely to change. The AAT found that Duncan was dismissed due to the voluntary act of failing to agree to the conditions demanded by his employer and that there was a reasonable excuse for his voluntary act.

Formal decision

The AAT set aside the decision of the SSAT and decided that Duncan was eligible for newstart allowance without an eight week nonpayment period.

[M.R.]