Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Part IV (Unemployment benefit). In its previous comments, the Committee has been questioning certain provisions authorizing suspension of unemployment benefit on the grounds of misconduct, taking into account that Article 69(f) of the Convention admits suspension of benefit only where the contingency has been caused by wilful misconduct. It referred in particular to examples of misconduct in the Adjudication Officer’s Guide (AOG) where it was caused not by deliberate acts of the claimant, but rather by his or her negligence or carelessness. For example, claimants who were accidentally late for work may have been found guilty of misconduct, even if there was no deliberate intention to be late (paragraph 39108 of the AOG). The Committee has requested the Government to modify the Guide so as to bring it in line with the adjudication officers’ case law sanctioning in practice only wilful misconduct in accordance with Article 69(f) of the Convention.

In its report of 2000, the Government agreed that in this context "wilful" was tantamount to "deliberate" and accepted that paragraph 39108 of the AOG did not properly distinguish between circumstances that were beyond the claimant’s control and circumstances where the claimant has deliberately and inexcusably failed to exercise a proper duty of care. Lateness for work should only constitute misconduct if there was evidence that the circumstances which caused it were within the claimant’s control. The Government was therefore grateful to the Committee for drawing the ambiguity of paragraph 39108 to its attention, and undertook to issue an appropriate amendment at the earliest opportunity. In its report of 2001, the Government indicated that the former AOG has been replaced by the Decision Makers Guide (DMG), in which the wording of the corresponding paragraph has been amended.

The Committee recalls that paragraph 39108 of the AOG contained a general guidance that "even when claimants have not deliberately done anything wrong, this can still amount to misconduct", and illustrated its application on the concrete example of sanctioning a claimant who was accidentally late for work, for misconduct. The Committee notes with satisfaction that in the new wording of paragraph 34108 of the DMG, which has replaced paragraph 39108 of the AOG, this general guidance has been deleted, thus precluding decisions which would tend to qualify as misconduct non-deliberate and accidental wrongdoing of claimants. The Committee raises a number of other points in the request addressed directly to the Government.