Dáil Éireann debate -
Wednesday, 15 Nov 1995

Vol. 458 No. 3

Adjournment Debate. - Unemployment Benefit Entitlement.

Mr. Kenneally

Thank you, Sir, for allowing me raise this matter and the Minister of State for coming in to reply.

This problem arises from the refusal of the Department of Social Welfare to make unemployment benefit payments to a number of dockers in Waterford city from 21 November 1980 to 10 December 1980 and from 4 May 1981 to 28 May 1982. During those periods the men involved were in dispute with their union and signing each week at the local labour exchange to indicate their availability for work. However, they did not receive payments from the Department of Social Welfare and they were available for work.

Their initial appeal, after their social welfare payments were restored, was heard by an appeals officer on 15 November 1984. I am told that during the hearing that officer cited an article from the Irish Press as one of the reasons for refusing to pay them unemployment benefit. In fairness, the appeals officer involved denied this version of events. However, it would be difficult not to be aware of what was being said at that time. Subsequently, the Irish Press apologised for its article which would invalidate a reliance on that story as a basis for argument.

When I first became involved in the case, I contacted the then Minister for Social Welfare who referred my representations to the new appeals office. I was surprised to receive a letter, dated 3 October 1991, indicating that the case had been further reviewed by the original officer who refused the application. In fairness, and without casting aspersions on the individual involved, it would have been more prudent to involve a different officer so that justice could be seen to be done.

Some time afterwards the Minister for Social Welfare, Deputy Woods, agreed to refer the matter to the social welfare tribunal and this was indicated to me by letter dated 30 July 1993. When there was no sign of further movement I made more inquiries. On 30 December 1994 the secretary of the tribunal informed me by letter that the papers were being referred to the chairman of the social welfare tribunal. On 9 March 1995 I was informed by the new secretary that the reason for the delay was that the tribunal had not sat for the previous two years and that this was the only case with which it had to deal. I then knew the reason for the lack of urgency.

During my dealings with the tribunals in the past few years, four different secretaries have been involved. That says something about the importance the Department attaches to their role. After trying unsuccessfully to have the tribunal reconstituted, I was eventually told in October 1994 that various nominating bodies had been contacted. When they submitted their recommendations, the secretary was informed that he must try again as the four-person board did not constitute two men and two women, part of the Government's over-preoccupation with gender balance. Eventually in June 1995 the new social welfare tribunal came into force. All I had to do then was get a date for the hearing, or so I thought.

Following several unsuccessful attempts to get a date for the hearing, bearing in mind that I was told on three separate occasions that the case was before the tribunal, in desperation I put down a parliamentary question to ascertain a date for the promised hearing and that was listed for yesterday. In reply I was informed, for the first time, that the tribunal can adjudicate only in cases where the stoppage of work or trade dispute took place on or after 1 June 1982. As indicated earlier, the dispute with the Department ended on 28 May 1982, four days earlier.

I will inform the House what the Rights Commissioner, who was involved subsequent to this problem, stated in 1994 about the men for whose just entitlements I am fighting:

I have always had a very high regard for the true Waterford dockers whom I have met and worked very successfully with since 1990. Above all I admired their strong character in adversity over ten years and their loyalty to a just cause and their integrity that when a deal is struck, it sticks.

Some of the men involved have passed away and others are sick and elderly. I call on the Minister to intervene to ensure this injustice is finally righted and the men involved get what is rightfully theirs.

Minister of State at the Department of Social Welfare (Mr. Durkan)

I thank the Deputy for giving me an opportunity to reply to this matter.

Social welfare legislation provides that persons involved in a trade dispute are not entitled to receive unemployment payments for the duration of the dispute. Persons not participating, or directly interested, in the dispute are exempt from this disqualification.

Mr. Kenneally

It was not a trade dispute.

Mr. Durkan

I will deal with that later. There were two separate disputes at Waterford Docks, the first lasting from 21 November 1980 to 10 December 1980 and a second from 4 May 1981 to 28 May 1982. The persons concerned were involved in both disputes.

A claim for unemployment benefit or assistance in a trade dispute is decided initially by a deciding officer of my Department. If a worker is dissatisfied with the decision he or she may submit an appeal to the independent appeals office. In a case involving a trade dispute, an oral hearing of the case would normally be convened by the appeals officer at which both parties involved in the dispute would be requested to put forward their views on the matter.

The persons concerned were disqualified under the trade dispute provisions from receipt of unemployment benefit and assistance for the duration of the disputes by a deciding officer. These disqualifications were subsequently upheld by an appeals officer following two oral hearings.

I understand that the matter was further examined by an appeals officer in November 1984 in relation to a claim for benefit from another worker involved in the disputes mentioned. This appeal also proved unsuccessful. Following representations by the persons concerned in 1991 the matter was referred on two occasions to the chief appeals officer for further examination. Having considered the matter fully he concluded that there were no grounds for reopening the case.

The issues involved in the case have been the subject of detailed consideration by appeals officers on a number of occasions. Under the legislation, an appeals officer's decision is final and conclusive and may only be revised in the light of new evidence or facts. However, any person who is dissatisfied with the decision of an appeals officer may appeal the decision to the High Court on a point of law. No such appeal was made in this case.

Social welfare legislation also provides that a person involved in a trade dispute who is dissatisfied with the decision of a deciding officer and an appeals officer may apply for an adjudication of the matter to the social welfare tribunal. In the normal course a referral to the tribunal would be made immediately following an adverse appeal decision on the case and it would be unusual for a referral to be made, as in this case some 11 years after the trade dispute ended. In this case, however, it was pointed out that recourse to the tribunal was the only avenue available under social welfare legislation to have the case reopened. The papers were, accordingly, referred to the tribunal in August 1993. Unfortunately, as the Deputy said, there was a considerable delay in making the necessary arrangements to have the case heard.

When the papers were re-examined in recent weeks it became apparent that the tribunal did not have the jurisdiction to hear the case. The tribunal's jurisdiction commenced on 1 June 1982 and it is not open to the tribunal to adjudicate in relation to any dispute not in existence on or after that date nor would it be open to the Minister to request the tribunal to do so.

I regret the delay in resolving this matter and that incorrect advice was given as to the appropriateness of this course of action.

The matter was further considered by senior officials in my Department as late as this evening with a view to ascertaining whether it might be possible to look again at the case in the event of a miscarriage of justice. There does not appear to be any such evidence at this stage but if the Deputy wishes to make a further submission on whether the persons concerned were available for work, that can be considered but no guarantee can be given.

Mr. Kenneally

Obviously, there is no compassion in the Department of Social Welfare.

Mr. Durkan

It is not about compassion, it is about the law.