EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Abdoulie Gaye UD893/2013
against
Allegro Restaurants Limited T/A Salvadors Restaurant
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. O'Connor
Members: Mr D. Hegarty
Mr O. Wills
heard this claim at Killarney on 10th June 2014
Representation:
Claimant:
Mr Conor Myles, Terence F Casey & Co, Solicitors,
99 College Street, Killarney, Co Kerry
Respondent:
Aidan J O'Connell, Solicitor, The Sanctuary, Bohereencaol, Killarney, Co Kerry
Claimant’s case:
The claimant was employed by the respondent as a chef from 1st July 2009. The hours of employment varied from week to week depending on how busy the restaurant was. Winter is particularly quiet and the claimant took unpaid leave from 31st October 2012 in order to travel home to his Mother Land. The claimant was to return to work at the end of December 2012 and was in touch with a colleague on Face Book to confirm this. However when he returned from this leave he found that he was not on the roster to work and was told by a director of the respondent that there was no work available for him at that time.
Given the situation the claimant sought legal advice and decided not to respond to phone calls from the respondent. It was the claimant’s position that as the respondent told him there was no work available that this meant he had been dismissed. The respondent offered the claimant the opportunity to return to work in March 2013 but by this time the claimant already had an offer of alternative employment and did not wish to return to work with the respondent.
Respondent’s case:
A Director of the respondent told the Tribunal that 2012 was a particularly bad year for the restaurant and that by the end of that year it was no longer enough work to continue employing a number of staff including the claimant. It was hoped that business would pick up again once the tourist season began again in March/April 2013. When the claimant returned from a period of unpaid leave the Director told him that there was no work available at that time but that he would contact him when work became available again. However despite several attempts to contact the claimant in respect of work there was no response from him. Ultimately the respondent wrote to the claimant’s solicitor offering the claimant a return to work in March 2013.
It was the respondent’s position that as the claimant failed to take up the offer to return to work in March 2013 that he had effectively resigned from his position.
Determination:
Having carefully considered the evidence adduced at the hearing the Tribunal finds that the claimant left his employment with the respondent of his own volition and accordingly the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
The Tribunal is satisfied that the claimant was placed on temporary lay-off after he returned from a period of unpaid leave. There were several attempts by the respondent to communicate directly with the claimant to offer him work thereafter but the claimant chose not to engage with the respondent. Subsequently the respondent entered into communications with the claimant’s solicitor culminating in an offer in writing to return to work in March 2013. However the claimant rejected this offer and therefore resigned of his own volition.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)