Garnys v Secretary, Department of Employment, Education, Training & Youth Affairs [1999] FCA 860

FEDERAL COURT OF AUSTRALIA

Garnys v Secretary, Department of Employment, Education,

Training & Youth Affairs [1999] FCA 860 ADMINISTRATIVE LAW – cancellation of Newstart Allowance – whether case management activity agreement breached – whether applicant took "reasonable steps" to comply with terms of the agreement – error by Tribunal in failing to make factual findings on relevant issues – s 45 of the Employment Services Act 1994 considered. Social Security Act 1991, s 660I Employment Services Act 1994, s 45(5) and s 45(6)

Secretary, Department of Employment, Education, Training and Youth Affairs v Ferguson (1997) 147 ALR 295 considered

JOHN GARNYS v SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION,

TRAINING AND YOUTH AFFAIRS NG 769 of 1998 HILL J 25 JUNE 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 769 OF 1998

BETWEEN: JOHN GARNYS

Applicant

AND: SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS

Respondent

JUDGE: HILL J

DATE OF ORDER: 25 JUNE 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal be set aside. 2. The matter be remitted to the Administrative Appeals Tribunal for rehearing in accordance with law, with or without the calling of fresh evidence as the Tribunal shall determine. 3. The Respondent pay the Applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 769 OF 1998

BETWEEN: JOHN GARNYS

Applicant

AND: SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS

Respondent

JUDGE: HILL J

DATE: 25 JUNE 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, Mr Garnys, appeals to the Court in its original jurisdiction against the decision of the Administrative Appeals Tribunal ("the Tribunal") setting aside a decision in his favour of the Social Security Appeals Tribunal and substituting in place of that decision its affirmation of a decision made by an authorised review officer to cancel his newstart allowance pursuant to s 660I of the Social Security Act 1991 ("the Act") on the ground that he had failed to comply with the terms of his case management activity agreement. 2 Mr Garnys was born in October 1942. He attained a diploma in metallurgy from the Perth Institute in or around 1968. He has for some considerable time been unemployed. On 1 May 1996 he signed, as he was required to do, a case management activity agreement. As that document declares on its face the aim of such an agreement is to get a job for a job seeker. Some of the terms of the agreement are specific to the job seeker. Others are contained in printed conditions. Under it, and as the first condition, the job seeker agrees to do everything he or she can to get a job indicating that he or she is willing to undertake suitable paid work. The printed conditions provide relevantly as follows: "3. I agree to accept a suitable job offer." Another provision, it is handwritten in the present agreement, is to the following effect: "I agree to report to the matching team once a week and apply for all positions where appropriate." 3 The case manager whose signature also appears on the agreement undertakes to assist the job seeker and monitor the job seeker's activities "so that he/she obtains a job as quickly as possible". The case manager agrees to advise the Commonwealth Employment Service if a job seeker is not taking reasonable steps to comply with the agreement. He or she agrees to provide support and assistance for a period of time after a job has been obtained. 4 Sometime before 25 May 1996 Mr Garnys was advised by his case manager to attend an interview and information session at Maroubra Commonwealth Employment Service at 9.00 am. Franklins store was conducting a recruitment drive, apparently for a number of positions and was to interview persons desiring a job. 5 Mr Garnys arrived, it would seem, at 9.30 am. He completed and handed to a Ms Hamill an application form. Ms Hamill was the human resources coordinator for Franklins and the person who apparently organised the interviews that were to be conducted on that day. Ms Hamill's evidence was that Mr Garnys wanted to hand to her his application form but not stay for the ultimate interview. Mr Garnys told her that he had other commitments and could not stay. According to Ms Hamill's evidence, which the Tribunal accepted, she explained to him that an interview was necessary and offered him an afternoon interview at 4.00 pm. Ms Hamill then passed the application form on to a Ms Kerry Thomas who was the manager of the Maroubra job centre. When the application form was handed to her, Ms Hamill noted that it was (in her view) "inappropriately completed". Mr Garnys had under the heading "work history" written "unemployed with CES Maroubra" but nothing else. In the document he gave the name of his case manager as referee. Ms Thomas annotated at some stage Mr Garnys' record as "client may need counselling re completing forms for genuine employment". 6 Mr Garnys waited for some time. According to his evidence he waited until 10.45 am. The Tribunal found that Mr Garnys was impatient and unhappy about waiting to see an interviewer. It was Mr Garnys' case that this came about because he suffered from a number of medical conditions. One was a longstanding medical condition of dermatitis. Another condition he suffered with at the time was an ear infection with resulting discharge; a third was an ingrown toenail which had been bothering him for some months. Mr Garnys wanted to attend the Oxford Square Medical Centre to see a doctor and presumably obtain medication. Mr Garnys left the Maroubra Employment Office and went to the Oxford Square Medical Centre. By that time it was 12.30 pm. According to his evidence he was unable to obtain an appointment and refused to stay there. He said he attended another centre, the Maroubra Medical Centre, in the afternoon at either 3.30 or 4.30 pm. Evidence before the Tribunal indicated that he did not see a doctor at either of these centres. Nor did he purchase any medication on that day nor collect any prescription for the dermatitis. 7 According to the Tribunal Mr Garnys gave also as an explanation for his non-attendance at the interview his belief that the written application that he had left with Franklins was adequate. He had applied to Franklins before and thought his name might already be on the data base. He believed that he might be able to proceed to a second interview without attending the first interview. The Tribunal however did not believe Mr Garnys on this last point because it accepted Ms Hamill's evidence that she had told Mr Garnys that without a first interview he would not be considered for a second and final interview. Mr Garnys explained away the incomplete application form by saying that he believed that if he indicated how long he had been unemployed that it might be prejudicial to his application and thought that it would improve his prospects to name his case manager as a reference. 8 A delegate of the Secretary, the Department of Employment, Education, Training and Youth Affairs determined that Mr Garnys' newstart allowance should be cancelled. The document recording that decision particularised what was said to be Mr Garnys' "breach", ie. his non-compliance with the terms of the case management agreement, as being both the failure to proceed with the interview and the filling in of the application form inappropriately. That decision was then reviewed by the Social Security Appeals Tribunal. It formed the view that Mr Garnys had done everything he could to get a job within the limits of his personal circumstances. In so holding the Tribunal took into account particularly that, at the time of the interview, no decisions were to be made and that further interviews were to be held later. It said it would not have reached this conclusion if the decisions were to be made on the day of the recruitment drive as to the selection of successful applicants. The Secretary then appealed to the Administrative Appeals Tribunal which set aside the decision of the Social Security Appeals Tribunal.