RP73/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                              CASE NO.

Tomoko Kumada                                                                                                       RP73/2014

-Claimant                                

against

Sushi King Rathcreedan Limited

-Respondent

Sush King Rathcreedan Limited

-Respondent

under

REDUNDANCY PAYMENTS ACTS 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr. C.  Corcoran B.L.

Members:       Mr. L.  Tobin

Ms P.  Ni Sheaghdha

heard this appeal at Dublin on 2nd April 2015

Representation:

Appellant:  In person

Respondent:  In person

Respondent’s case:

The Tribunal heard evidence from AG a witness for the Respondent.  She explained that the Appellant was employed as a Sushi chef.  The Appellant worked 20 hours per week as she was a student.  The Appellant commenced in 2011 and ceased working in September or October 2013.

In August 2013 the Appellant’s student visa was due to expire so she travelled to her homeland to try to renew her visa, and to take a holiday.  The Appellant was hoping to return to Ireland.   During the period of the Appellant’s absence the Dawson street restaurant outlet where the Appellant had worked was closed down.  She sent the Appellant a text message to inform her and to tell her not to worry because they have a store (work) in Camden street and do not let it be a reason not to return.  The Appellant had worked in the Camden street premises before.  She did not get a reply.  She sent two text messages to the Appellant prior to her return.  She did get a phone call from the Appellant.   The Appellant did return to work; she worked for two days.    A few days later the manager phoned the Appellant regarding work and the Appellant told him that she could not work due to child minding commitments.   

The witness explained that she took one week’s holiday.  She did have her mobile phone with her.  She returned from her holidays and proceeded to look at the wage sheets.   She noticed that there were no hours on the sheet for the Appellant.   She sent a message to the Appellant regarding hours.  The witness explained that she sent a “litany” of messages to the Claimant asking her to work because she was really stuck for someone to work in the restaurant/ take away.  During this time the witness explained that she had information that the Appellant had worked on a trial basis in another restaurant.  Therefore the week that the Appellant said that she could not work, she had made herself available to work on a trial elsewhere.   Also around this time the Appellant sent her a text message to say she wanted her form p4, that she was redundant and she wanted redundancy monies. 

Appellant’s case:

The Tribunal heard evidence from the Appellant.  She commenced working on 23^rd February 2011.  She worked in the Respondent for 2.5 years.  She went on holidays to Japan in August 2013 and returned on 03^rd September 2013.   She had marked her holidays on the calendar on the wall in work.  All of the staff knew that she was returning.

She received a text from AG and knew that the restaurant had closed down.   She did speak to AG and she did work again for the Respondent.   The Appellant contended that she was only offered or only worked circa two days over a number of weeks.  She was concerned about her lack of work.

She did speak to the manager and told him that regarding Mondays she had to mind another person’s daughter.

The Appellant was asked for clarification on points by the Tribunal.  She explained that her normal hours were 20 hours when she was in college.    She now works 18 to 20 hours child-minding.       She did work in the Respondent on her first week of her return to Ireland; her first week she worked two days which totalled 13.5 hours.  The second week she could not work because she was in college (the working hours in the store clashed with college hours).   The third week she was offered work in Camden street.  It was put to her that it was really only the fourth week that the situation arose.    The Appellant explained that it was only after she sent the message regarding redundancy that she was offered work.

It was clarified by the Respondent that the manager had to work extra hours. That the Appellant could only work from the Thursday of the first week and she was given two shifts on Thursday and on Sunday.  On the second week she was allocated 7 hours because she was not available for more hours.  On the third week the manager had phoned her and she told him that she was not available.  On week four she phoned the Appellant and asked her if she was available to work in Camden street.

Determination:

The Tribunal having heard the evidence adduced makes the following determination:  the Tribunal do not find sufficient evidence to find that a redundancy situation existed in this case. There was work available for the Appellant.  Whilst the Appellant contended that she only worked for a few days over a period of weeks the Respondent contended that the period was one week. Accordingly, the appeal under the Redundancy Payments Acts, 1967 To 2007, fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)