John Halligan (Waterford, Independent)
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82. To ask the Minister for Social Protection the way in which a social welfare inspector may refuse an application for jobseeker's allowance and make a negative decision where there is an active outstanding unfair dismissal claim being made by the applicant, particularly where the applicant has the full backing of his or her union; her views that the position in law is that all dismissals are unfair and it is for the employer to prove otherwise, therefore any application for social welfare assistance should be processed on that basis and any further review of the claim postponed pending the outcome of the unfair dismissal claim; if she will review this decision in respect of a person (details supplied) in County Waterford; and if she will make a statement on the matter. [40166/14]

John Halligan (Waterford, Independent)
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Why would the Department of Social Protection refuse an application for jobseeker's allowance and make a negative decision where there is an outstanding unfair dismissal case being taken by that applicant, particularly where the applicant has the full backing of his or her union? Does the Tánaiste agree that the position in law is that all dismissals are unfair unless the employers can prove otherwise?

Joan Burton (Dublin West, Labour)
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Decisions on the awarding of social welfare payments such as jobseeker's benefit or allowance are made by the deciding officers appointed under the terms of the Social Welfare Acts. In making decisions, deciding officers are bound by the provisions of social welfare legislation. Each case is dealt with on its merits and in accordance with the facts of the case.

Social welfare legislation provides that a person shall be disqualified for receiving jobseeker's benefit for a period not exceeding nine weeks where he or she has lost his or her employment through his or her own misconduct. The person in this case made a claim for jobseeker's benefit, having lost her employment. The deciding officer disqualified her from receipt of payment for nine weeks. This decision was appealed to the social welfare appeals office where the appeal was not upheld.

I understand the Deputy recently has been in contact with the Department in connection with this case. I am advised by the social welfare appeals office that this case has been reopened for oral hearing and that the person concerned and the Deputy were advised of this on 13 October 2014. The person concerned will be notified of the arrangements for the oral hearing as soon as these have been finalised.

John Halligan (Waterford, Independent)
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I thank the Tánaiste and acknowledge that I received the correspondence from her Department. I first wish to make clear that I have no problem that some people can be dismissed for gross misconduct. I am not making that argument. However, there are those who make mistakes in their lives, who are constructively dismissed or who leave employment because of bullying or psychological problems. As the legislation stands, all such people are disbarred from social welfare payments for ten weeks and some compassion should be shown in this regard. At present, we isolate someone who is a family member or an individual and who relies solely on a social welfare payment when he or she leaves his or her job. It is wrong that such a person is left for ten weeks without a payment. I ask that a ruling be made to ensure nobody is left isolated for a period of two months or ten weeks without payment of any sort from the State. That is wrong and has dire social consequences. I again make the point that there is no way under any circumstances whereby the social welfare payments of anyone who has been dismissed from his or her job and is going through a procedure of unfair dismissal should be stopped until a decision has been made.

Joan Burton (Dublin West, Labour)
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I do not wish to go into the facts of the particular case, of which the Deputy is aware. As it is the subject of an oral appeal, there then will be an opportunity to discuss the case in greater detail. However, when a person makes an application, to some extent the decision reached by a deciding officer depends significantly on statements and remarks made by that person to support his or her application. In this particular case, the employee appears to have been employed in the employment for a significant time. Given the circumstances mentioned by the Deputy - I do not know whether the person perhaps has taken up some of the industrial relations mechanisms in respect of the dismissal - this obviously is not handled by the Department of Social Protection. There certainly are issues in this case on which I am not in a position to make a judgment. However, in the case of somebody who has lost his or her job and who considers this to be unfair - the suggestion is because of misconduct - it normally would be a matter of going through the industrial relations machinery. However, in the case of the Department of Social Protection, the long-standing rule is the deciding officer makes a decision based on the facts of the case presented by the person who is applying. An oral hearing perhaps will allow any other material matters that may not have been presented at the time to be considered.

John Halligan (Waterford, Independent)
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Are people not being declared guilty until proven innocent? The position here is that many people leave their jobs or go through constructive dismissal or, as I stated earlier, are sacked justifiably. However, if they decide to take a case of unfair dismissal against the employer and so on, I do not believe one has a right to judge them until this case is heard by the legislative body, which is the Labour Court or a commissioner or whatever. Put simplistically, I make the point that until a decision is made by that body, which Members have put in place as legislators in this House, people should not be prohibited from having some subsistence during that period before the hearing is held. This is a simple, reasonable request that shows compassion to a small group of people who go through constructive dismissal, who may have been bullied out of their jobs, who may be obliged to leave or who may have psychological problems.

They may consider that they have to proceed with the matter further, through their union or otherwise, to the Labour Court. They should be given that additional time and should not be declared guilty until a final decision is made.

Joan Burton (Dublin West, Labour)
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In this particular case the information that was supplied and the information supplied by the employer was in regard to a misconduct episode-----

John Halligan (Waterford, Independent)
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Yes.

Joan Burton (Dublin West, Labour)
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-----which gave rise to a dismissal. The deciding officer had the facts as presented by the individual and also supplied by the employer when the case was examined, which confirmed what the applicant had represented when they came in as being part of the particular circumstances of the case. They have now decided to have an oral appeal and that will afford a greater opportunity to check out the facts.

As the Deputy will know, large numbers of people are granted jobseeker's benefit or jobseeker's allowance. This particular case is complicated by the circumstances which gave rise to the employee's dismissal, notwithstanding that they had been with the employer for 11 years.