Decision No: C1/95(UB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS
(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)
(NORTHERN IRELAND) ACT 1992

UNEMPLOYMENT BENEFIT

Application by the claimant for leave to appeal
and appeal to the Social Security Commissioner
on a question of law from the decision of the
Downpatrick Social Security Appeal Tribunal
dated 8 December 1994

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which had disallowed claimant unemployment benefit for 6 weeks.

2.	The Social Security Appeal Tribunal upheld the decision of the Adjudication Officer that the employer was entitled to sack claimant for misconduct but reduced the period of suspension from unemployment benefit from 26 weeks to 6 weeks.

3.	I arranged an oral hearing at which claimant was represented by his father and the Adjudication Officer was represented by Mr McLaughlin.  At the hearing I granted leave to appeal and both parties consented to me treating the hearing of the application as the hearing of the appeal.

4.	Claimant's father on behalf of the claimant argued that because of the contract of employment the employer was not entitled to dismiss the claimant without a warning as the only conditions under which a claimant could be summarily dismissed was for gross misconduct and that absenteeism was designated as a minor misconduct.  He also said that proceedings had been instituted against the employer before an Industrial Tribunal but the case had been settled without a hearing with a secrecy clause added to the settlement.  Mr M... argued that in the circumstances the employer was wrong to dismiss the claimant and consequently the appeal should succeed.

5.	Mr McLaughlin argued that claimant's conduct was decided by the Tribunal not to be gross misconduct but nevertheless the employer was entitled to sack claimant and that the Tribunal was entitled to decide in the circumstances that he could be dismissed.

6.	I have considered all that has been said and I have read all the documents.  Any question of whether or not a person is wrongly dismissed is a matter for an Industrial Tribunal and that Tribunal makes decisions relating to industrial law which are unrelated to social security law.  Once it is proved that a claimant's conduct whatsoever it may be caused that person to lose his job then the social security law applies in relation to a claim for unemployment benefit as a result of the loss.  The Social Security Contributions and Benefits (Northern Ireland) Act 1992 lays down that "a person shall be disqualified from receiving unemployment benefit ... if he lost his employment through his misconduct".  

7.	It cannot be denied that he lost his job because he took the extra week off.  The Tribunal decided that that was misconduct and was entitled to do that.  It must be remembered that the Tribunal is the last Tribunal of fact and sometimes it is forgotten that old decisions of Commissioners and Umpires were decisions on the facts, whereby the present proceedings are restricted to a point of law.

8.	I am satisfied therefore that the Tribunal correctly held that it was claimant's actions which amounted to misconduct which resulted in his dismissal.

9.	I now turn to the period of disqualification.  The submission by the Adjudication Officer to the Tribunal quotes several Commissioners' Decisions relating to the period of disqualification, namely R(U) 8/74 and R(U) 4/87.  I have on previous occasions referred to the submissions to Tribunals by Adjudication Officers which appear to take chunks of old decisions and insert them like paper and paste into a submission and ignore decisions which have been made within the last number of years.  There is a decision C3/89(UB) in which I set out at length the periods of disqualification and the approach that should be made to the period, and it is astounding that in this type of case the Adjudication Officer should have considered that the maximum period of 26 weeks disqualification should have been imposed, bearing in mind that that also entails the claimant losing 40% of his income support and also reduces the period in which he can receive unemployment benefit in the future.  It is to the credit of the Adjudication Officer who appeared before me that he made no attempt whatever to justify that extremely harsh decision of the Adjudication Officer.  The Tribunal quite correctly reduced the period from 26 weeks to 6 weeks and in fact other Tribunals may well have reduced it further.  

10.	I think it is time that some guidance was given to Adjudication Officers in this regard and that it is not considered appropriate to impose the maximum disqualification in most cases but only in the most serious cases.  I asked at the hearing whether or not there were any statistics to show the periods of disqualification imposed by Adjudication Officers to see whether or not there was a pattern of maximum disqualification, but I was informed that those statistics do not exist.  I think they should be compiled - the result would make interesting reading.

11.	For the reasons set out above I am satisfied that the Tribunal did not err in law and was entitled to come to the decision to which it came.  I therefore dismiss the appeal.

(Signed):  C.C.G. McNally 

COMMISSIONER

12 September 1995