Case Studies » Unemployment » Jobseeker's Benefit - from 2015 Annual Report (ref: 2015/13)
Background: The appellant was employed on a casual basis in a local fish factory and was also engaged in small-scale farming. He had been in receipt of Jobseeker’s Benefit over several years, requalifying as required, in respect of periods when his casual employment was not available to him due to the fact that his farming, estimated at an average of two hours per day, seven days per week, was deemed to be subsidiary self-employment as prescribed in legislation. As he was a casual worker, the legislative requirement that a person must have incurred a substantial loss of employment did not apply in his circumstances. When the appellant had exhausted his most recent Jobseeker’s Benefit claim, his case was examined to determine if he requalified with effect from a specified date in 2015. In a departure from previous practice, the Deciding Officer held that he was not unemployed as his farming was no longer deemed to be subsidiary self-employment.
Legislation: Section 62 of the Social Welfare (Consolidation) Act, 2005, prescribes the qualifying conditions for receipt of Jobseeker’s Benefit, including the requirements for ‘a day of interruption of employment’ and ‘a period of interruption of employment’.
Article 44 of the Social Welfare (Consolidated Claims, Payment and Control) Regulations, 2007 (S.I. 142 of 2007) provides for treating a day as a day of unemployment where a person is engaged in employment or self-employment of a subsidiary nature, as follows:
44. (1) For the purposes of Chapter 12 of Part 2, a day shall not be treated as a day of unemployment if it is a day in respect of which a person –
(a) fails to prove to the satisfaction of the Minister that he or she is unemployed, capable of work and available for employment, or
(b) follows any occupation from which he or she derives any remuneration or profit, unless such occupation -
(i) could ordinarily have been followed by him or her in addition to his or her usual employment and outside the ordinary working hours of that employment and –
(I) the remuneration or profit from any day of such occupation does not exceed €12.70, or, where the remuneration or profit is in respect of a period longer than a day, such remuneration or profit does not on the daily average exceed that amount, or
(II) not less than 117 employment contributions have been paid in respect of him or her in respect of the period of 3 years immediately preceding that day or in respect of the last 3 complete contribution years immediately preceding that day
In his appeal submission, the Deciding Officer stated that the appellant was a seasonal factory worker and a self-employed farmer. His employment in the factory, at 24 out of the previous 37 weeks, or 89 from a total of 259 days, was casual work and had no discernible pattern. Although noting that the relevant Department of Social Protection Guidelines do not specify a requirement that the ‘usual’ job is full-time, he concluded that a very substantial gap is required between the main occupation and the subsidiary occupation in terms of primacy, as the appellant must be engaged in one employment to a considerably greater extent than the other and both must be worked alongside each other.
The Deciding Officer concluded that the days of employment preceding the current claim were irregular, with significant periods of unemployment; as the employment could not be said to have any ordinary/regular working hours, a significant amount of the appellant’s farming took place outside but not alongside normal working hours; the appellant had been classified as a casual worker over an extended period and this could not also be considered to be a main occupation to which farming was subsidiary, and it would be contradictory to decide that a person is a casual worker and that he has a second subsidiary employment outside the ordinary working hours of his usual employment. The Deciding Officer concluded that the appellant had two part time jobs.
Consideration: The Appeals Officer noted that the appellant’s farming had been deemed to be subsidiary self-employment for Jobseeker’s Benefit purposes over several years and that there was no evidence of a recent or sudden increase in the level of farming or of a relevant change in the level or pattern of casual work. Consequently, he observed that the reasons for an adverse decision by the Deciding Officer were unclear in connection with the current claim.
When determining whether or not the subsidiary employment/self-employment rule applies, legislation does not prescribe that one or other of the occupations must be full-time or that the gap between the level of employment vis-à-vis the subsidiary occupation should be substantial. These issues, to the extent that they are addressed, are provided for in law by way of prescribing that it should be possible to carry out the subsidiary employment or occupation in addition to and outside the ‘ordinary working hours’ of the usual employment, and by prescribing that a minimum number of contributions are required or that the prescribed threshold of average daily income from self-employment is not exceeded. In this context, the Appeals Officer considered that the appellant’s ‘ordinary working hours’ of employment could be determined only by the history of the employer’s requirements, which were outside the appellant’s control, and by the ability of the appellant to follow the ‘other’ occupation with reference to his history in relation to that ‘other’ occupation, considered in tandem with his record of acceptance or refusal of any work offered by the employer (or indeed of any other offers of work).
The Appeals Officer considered that, in the absence of any refusal of an offer of work by reason of his farming obligations, the appellant could be said to have always carried out his farming outside the hours of employment and including, when working, alongside the employment. He observed that it would appear extremely harsh to conclude that, where a person is employed for a substantial part of the year but where his hours of employment, over which he has no control, are variable, he simply cannot qualify for Jobseeker’s Benefit under the subsidiary self-employment provision, regardless of the level of farming. He noted the Deciding Officer’s conclusion that, as the employment was casual in nature and of irregular hours, a significant amount of the appellant’s farming took place outside, but not alongside, his employment. The Appeals Officer conceded that this might be true but that it did not alter the fact that the appellant had also been engaged in both during significant and substantial periods of employment. Accordingly, he concluded that the appellant’s engagement in farming for an average of two hours per day was subsidiary self-employment, as prescribed for purposes of Jobseeker’s Benefit.
Outcome: Appeal allowed.