Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

The unfair dismissals legislation provides that any social welfare payments which the employee may have received after the date of dismissal are not taken into account in calculating the financial loss that the person suffered as a result of the dismissal. This ensures that the person is not penalised for having been in receipt of a social welfare payment following his or her dismissal. Recouping the cost of welfare benefits arising from unfair dismissals would require a change in this position on the principle of no double compensation. That is, a person cannot be compensated twice, both by his or her employer and by the Department of Social Protection. This could reduce or even eliminate the award for the person who was unfairly dismissed where he or she is also in receipt of a social welfare payment because that payment would have to be taken into account in calculating the financial loss to the individual.

The reference to social welfare payments is a catch-all term which could include benefits directly linked to unemployment and those relating to other contingencies such as illness, lone parenthood, old age or caring responsibilities. The linking of a broad range of welfare contingencies to unfair dismissals would be difficult to justify.

The time period envisaged in the amendment, that is, between the date of dismissal and the date on which the finding is made, is potentially open-ended and disproportionate. What is proposed would also give rise to significant additional costs to employers and businesses. For example, one year of jobseeker's benefit for a person with an adult dependent and two children would be €20,000. In turn, these losses could result in other losses of employment at the business.

There are several other reasons why I cannot accept the amendment which I will not go into now. To be straight with the Deputy, when I first looked at this amendment, I thought it seemed like a good idea. Why should the Department not recoup the money if an employer has dismissed an employee unfairly? Indeed, that money should not have had to be paid out because the employee should not have been dismissed in the first instance. However, what made me change my mind is the principle of double compensation, namely, that somebody cannot be compensated twice. Essentially, what would happen is that any money paid to the employee from the Department of Social Protection would have to be deduced from his or her compensation award from the Workplace Relations Commission, WRC. The WRC would then have to pay the difference to the Department. Therefore, the individual employee would be no better off and the State would be no better off because we would just be making a circular payment.