UD684/2013, RP628/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                              CASE NO.

Peter Popov                                                                                                               UD684/2013

                                                                                                                                    RP628/2013

against

Joe O'Brien (Balla) Limited

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr M. Gilvarry

Members:     Mr T. Gill

                    Mr M. McGarry

heard this claim at Castlebar on 5th September 2014

Representation:

Claimant:

Mr. Kevin Bourke, Kevin M Bourke, Solicitors,

             Burke House, Ellison Street, Castlebar, Co Mayo

Respondent:

            No representation listed

Appellant’s case:

The appellant commenced employment with the respondent in May 2003 as a labourer and worked 5 days per week until he was placed on a 3 day week in January 2012. On 21 December 2012 the appellant was placed on temporary lay-off. The appellant was told there was no work available for him at that time and that he would be called back when work became available again. The appellant subsequently called to the respondent enquiring about employment but when there was no sign of a return to work he went to a solicitor and lodged an appeal/claim with the Tribunal. The appellant told the Tribunal that he did not ask the respondent for redundancy because he thought that the respondent would give him work. He also said that he waited and waited and then went to his solicitor about it.

It was the appellant’s position that he was either unfairly dismissed or made redundant prior to his appeal/claim being lodged with the Tribunal and that an offer of a return to work was only made to him after the appeal/claim had been lodged.

The appellant has been unemployed since termination of employment with the respondent.

Respondent’s case:

The respondent placed the appellant on lay-off from 21^st December 2012 because of the lack of work. The respondent continued to work himself and also kept on an electrician and a truck driver. The appellant called to the respondent on occasion over the following few months but the respondent had not got adequate work to take him back on at that time. However the respondent did offer the appellant a return to work and this was before the appellant lodged his appeal/claim with the Tribunal. This offer was made verbally on the phone.

It was the respondent’s position that the appellant/claimant chose not to return to work when the offer was made to him.

Determination:

The Tribunal carefully considered the evidence adduced at the hearing and finds that the appellant was never dismissed by the respondent.

It was common case that the appellant was placed on temporary lay-off on 21^st December 2012. It was open to the appellant to apply for redundancy after being on lay-off for at least four weeks and had he done so the respondent would have had to pay him a redundancy lump sum had he been unable to offer him a return to work at that point. However it was the evidence of the appellant that he did not request a redundancy lump sum from the respondent and that he did in fact reject an offer from the respondent to return to work albeit perhaps after the appellant had lodged an appeal with the Tribunal.

The Tribunal finds that the appellant therefore resigned of his own volition and the appeal under the Redundancy Payments Acts, 1967 to 2007 and the claim under the Unfair Dismissals Acts, 1977 to 2007 both fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)