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Jobseekers Benefit Case 4

Question At Issue:

Whether claims for jobseekers benefit from a number of appellants in the same circumstances should be disallowed on the grounds that they were not available for work.

Background:

A number of appellants were employed in the retail trade by the same company on flexible contracts requiring their attendance for a minimum number of hours per week with the proviso that they be available to work more than the minimum if required to do so. In the event, their work pattern for a number of years amounted to the equivalent of full-time employment. However, following a reduction in their hours due to a downturn in business, they claimed jobseekers benefit for the days they were not working. Their claims were disallowed on the grounds that their employment contracts required them to work as required by their employer and, consequently, they failed to satisfy the statutory condition requiring them to be available for work.

Oral Hearing:

The appellants, with one exception, attended the appeal hearing. They indicated that they were employed for a number of years under ‘flexible and work’ contracts which guaranteed them at least 15 hours per week and obliged them to work additional hours if required to do so. Over the years, they had enjoyed a working pattern of up to 35 hours per week which was the equivalent of full-time working. Due to falling sales, however, the company reverted them to their minimum of 15 hours work over three days. Their days of work changed from week to week, they learned of their rosters one week in advance and their employer had refused to give them fixed rosters. They had been given assurances that the reduction in hours would only be temporary but that turned out not to be the case. The company had in fact taken on additional staff but not in their department and they not been offered any additional hours of work.

The appellants regarded themselves as full time staff having regard to their work pattern over a long number of years and, as such, they believed they should be entitled to jobseekers benefit in the event that their hours of work were reduced. They felt it was pointless to seek employment elsewhere as job opportunities in the retail trade were few and far between, they would be on lower starter wages, they would have to serve at least six months probation and would have no guarantee of the number of hours work they currently had.

The Department’s deciding officer had taken the view that the appellants had restricted their availability for work by virtue of the fact that the terms of their employment contract with the company effectively precluded them from taking up part-time employment with another employer.

Consideration of the Appeals Officer:

In considering the facts of these cases, the Appeals Officer had particular regard to the interpretation of the legislation governing receipt of jobseekers benefit. He believed that a person who was in insurable employment which insured against the contingency of unemployment had a legitimate expectation of payment of benefit when his or her employer had no work for them. In the circumstances of the cases before him, the appellants had, in practice, been employed on a full time basis with the same employer for a number of years and he believed it was unreasonable to assert that they were not available for full-time work when their hours were reduced.

Furthermore, the Appeals Officer considered it unfair to expect the appellants to leave their current employment for even one additional days’ work elsewhere given that full-time work in the retail trade was difficult to find and he accepted their reasons for not doing so were valid. He felt it was only in situations where a claimant had been in part-time employment for a considerable period of time and had made no substantive efforts to secure additional work that a disallowance of their payment on the grounds of not being available for full-time employment would be warranted. All of the appellants had indicated that they were freely available for full-time work. In the circumstances, the Appeals Officer was satisfied that the appellants fulfilled the condition requiring them to be available for work in order to receive jobseekers benefit.

Outcome:

Appeals allowed.

Additional Note: Subsequent to the issue of the Appeals Officer’s decision, the Department of Social and Family Affairs sought a review of that decision by the Chief Appeals Officer as provided for under section 318 of the Social Welfare Consolidation Act 2005. That provision empowers the Chief Appeals Officer to review any decision of an Appeals Officer where it appears to him that the decision was erroneous by reason of some mistake having been made in relation to the law or the facts. In the course of his review, the Chief Appeals Officer noted that the term “available for work” was defined in the relevant statutory regulations as being willing and able, at once, to take up an offer of suitable full-time work. He believed that the reality of the situation was that each of the respective appellants had manifestly demonstrated their willingness and availability to take up full-time work by actually working full-time hours with their employer for considerable periods of time. He found that the Appeals Officer had applied the law to the circumstances of the cases before him in a reasonable manner and that there was no reason to revise his decision.

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