220.127.116.11 Unemployment non-payment periods
This section concerns information on unemployment non-payment periods under the compliance arrangements set out in SS(Admin)Act Part 3 Division 3A. These arrangements only apply to job seekers on participation payments who are declared program participants (i.e. CDP participants) under the Social Security (Declared Program Participant) Determination 2018.
If the delegate determines that the person became unemployed due to a voluntary act or became unemployed because of misconduct, an unemployment non-payment period applies. This means that a participation payment is not payable to the person for 8 weeks. Unemployment non-payment periods generally apply to job seekers whose voluntary unemployment or dismissal occurs before they claim payment. This is why they are considered as preclusion periods rather than penalties.
Where the person's resignation or dismissal occurs prior to the person being in receipt of a participation payment, the non-payment period starts on the day the person became unemployed.
Where the person's resignation or dismissal occurs while the person is in receipt of payment, the start date of the non-payment period will generally be the start of the instalment period following the determination to apply the failure. However, the delegate may commence the non-payment period from the date the person became unemployed where this is beneficial to the person (e.g. where the person has 'self served' part of the penalty because they have not received payment between the date of unemployment and the date the non-payment period starts).
The rationale for precluding people from payment if they are voluntarily unemployed is that the community expects that a person who chooses to leave employment without a good reason should not expect to receive immediate financial assistance from the community. However, the preclusion period does not apply if the voluntary act was reasonable or if the work was unsuitable for the person.
In determining whether the work was unsuitable (18.104.22.168), the delegate must consider the factors listed in the legislation. In deciding whether the voluntary act was reasonable, the delegate should consider, on a case-by-case basis, all relevant issues presented, including any claims of sexual harassment, bullying or unsafe work conditions, any unlawful activity by an employer, as well as the job seeker's personal circumstances. Claims by a job seeker that the work they were doing was unsafe, or that unreasonable demands or constraints were placed upon them by their employer, need to be assessed against what is reasonable and appropriate given the nature of the work and relevant industry standards.
Unemployment due to misconduct
A person is unemployed due to misconduct if their employer has dismissed them or has given them (and they have accepted) the option of resigning, after action including, but not limited to:
- deliberate failure to produce or deliver a reasonable amount of work
- unauthorised absences from work without good reason
- improper behaviour or practices, such as theft, assault or harassment of other employees or customers
- actions that cause serious risk to the health or safety of other employees or customers
- deliberate misuse of work related equipment or facilities, such as vehicles, internet connections or IT hardware, or
- actions that threaten the reputation, viability or profitability of the business.
The delegate must consider whether or not the employment was suitable for the person and whether or not their actions that led to their dismissal were reasonable. The legislation does not state this explicitly but it is implicit in the use of the term misconduct. A reasonable act will not constitute misconduct.
The intention of this policy is not to penalise people for something over which they had no control. It is to deter a person from trying to avoid a penalty for leaving employment voluntarily by behaving inappropriately at work with the intention of causing his or her own dismissal. A person is not unemployed due to misconduct if they have been dismissed for lack of ability to do the job or for incompetence, unless their behaviour was within their control. This is particularly important when considering the behaviour of people with mental illnesses.
If it is not certain a job seeker was seeking dismissal, Services Australia should only apply a penalty if it is reasonable to expect the person to have understood that their action would have resulted in dismissal.
A person can only be considered unemployed due to misconduct as a result of their misconduct as an employee. As well as misconduct that occurred in the workplace, this includes extensions of the workplace such as work-related functions or when using facilities or information that are only available due to a person's employment (e.g. misusing a company vehicle or computer equipment when not at work). However, a person cannot be considered to have committed misconduct if they have been dismissed because they can no longer fulfil their duties because of something they have done outside of work and not in their capacity as an employee. For example, if a person loses their driving license out of work hours in their own vehicle and they lose their job because they are required to drive as part of their duties, then this would not be unemployment due to misconduct.
Ending an unemployment non-payment period
Services Australia can end a person's unemployment non-payment period if:
- the person is in a class of persons specified by the relevant legislative instrument, and
- serving the non-payment period would cause the person to be in severe financial hardship.
Classes of persons specified by legislative instrument
The Social Security (Administration) (Ending Unemployment Non-payment Periods - Classes of Persons) (DEEWR) Specification 2009 (No. 1) outlines the 'classes of persons' who can have an unemployment non-payment period ended if serving that non-payment period would result in severe financial hardship. These are persons who:
- have a dependent child
- have other significant family or caring responsibilities (e.g. for an aged parent or an adult with a disability)
- have an illness, impairment or condition requiring treatment to manage the illness, impairment or condition, and who cannot afford the treatment after meeting their essential expenses
- have a recognised cognitive, neurological, psychiatric or psychological impairment or mental illness
- do not have access to safe, secure and adequate housing, or are using emergency accommodation or a refuge.
A person is taken not to have 'access to safe, secure and adequate housing' if their accommodation is, or is likely to be, damaging to their health, unsafe, or does not provide them with a reasonable level of personal amenities or the economic and social support that housing normally provides. Access to safe, secure and adequate housing also means having a right to remain, or a reasonable expectation of being able to remain, in their accommodation. This definition is intended to include those who are homeless or at risk of homelessness.
The legislative instrument also refers to the affordability of the person's housing being 'adversely affected'. This means that if the affordability of the job seeker's housing is affected to such a degree that they face immediate eviction, they can be taken to be at risk of homelessness and therefore potentially eligible for a waiver. It is not intended to include job seekers whose accommodation is simply not as affordable as it was before the application of the non-payment period. In particular, a person's difficulty in paying rent or mortgage repayments for the period of the non-payment period will not be sufficient to satisfy the criterion that the affordability of the person's housing is adversely affected. It will be necessary for the job seeker to demonstrate that they face a real risk of eviction (e.g. by providing a notice from their landlord).
It should also be noted that 'access to safe, secure and adequate housing' is not necessarily restricted to the person's current accommodation. For example, a young person who may have to leave a share house because they cannot pay rent, but for whom return to the family home is a viable and reasonable option, can still be taken to have access to safe, secure and adequate housing.
Severe financial hardship
A job seeker is considered to be in severe financial hardship if they have less than $2,500 in liquid assets or, if they have children or are a part of a couple, less than $5,000 in liquid assets (note that this is different to the definition that used for the liquid assets test).
If the person has served some of their non-payment period before meeting the hardship test, the date the non-payment period ends is the day before the decision is made that the person is in severe financial hardship. Where the person has been unable to notify a change of circumstances through no fault of their own (e.g. unexpected hospitalisation or as a result of a natural disaster), the delegate may reinstate payment from an earlier date where it can be shown that the person was in severe financial hardship from that date.
When a person does claim to be in severe financial hardship after having initially failed the hardship test, the rules relating to reasonable expenditure (1.1.U.20) that are used for the liquid assets test apply to ensure that the job seeker has not put themself into financial hardship.