UDD2520

PARTIES:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00031404 (CA-00041706-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 28 May 2024 in accordance
with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 4 June 2025.
The following is the Decision of the Court.

DECISION:

Background to the Appeal

This is an appeal by Mr Elsayed Alishehata (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00031404/CA-00041706-001, dated 17 April 2024) under the Unfair Dismissals Act 1977 (‘the Act’). Notice of Appeal was received in the Court on 28 May 2024. The Court heard the appeal in Dublin on 4 June 2025.

The Complainant’s Evidence

The Complainant told the Court that he had been employed by Chimeway Limited (‘the Respondent’) as a chef between March 2001 and 2006 and again from 2007 until 19 July 2020 when he voluntarily left that employment having secured alternative employment to commence the following day.

The Complainant said that he had worked for the Respondent at Mario’s Restaurant in Terenure and was paid €16.00 per hour. Between 2007 and approximately July 2019, he was rostered to work on average forty hours per week. He typically learned of his rostered hours in advance when one of his colleagues sent him a WhatsApp message which contained a photograph of the roster.

According to the Complainant, his hours were reduced to an average of twenty-eight hours per week in July 2019 to facilitate another chef that had been transferred from the Sandymount branch of the business. The Complainant said that he had queried the reduction in his hours with his manager who promised to sort it out but did not do so. The Complainant said that he was unhappy with the reduction in hours as he had a family to support and rent to pay. This caused him stress, he said, and resulted in him taking three weeks of certified sick leave during November and December 2019. His hours, he said, were restored over the Christmas period in 2019 but from January 2020 onwards he received no rostered hours although his name continued to be included in the roster.

Counsel for the Complainant exhibited a letter dated 14 January 2020 from Ms Deirdre Foley, the Respondent’s Group Financial Controller, the opening paragraph of which letter states:

“Further to our phone call today, your leavers form received last week and the letter you handed to Stephen with no date on it, I now have to ask if resigning from your post is what you really want to do. I am concerned there could be underlying issues in respect of your employment with us, which we need to address.”

The Complainant told the Court that he had not resigned from his employment at that time.

Counsel then directed the Complainant to an email he had sent to Ms Foley dated 23 January 2020 in which the Complainant stated, inter alia:

“… I do not know how do you get that I am resigning after working with the company since 2001 and loving my work. I only submitted a complaint regarding working conditions, reducing my hours to 28 hours with no reason, insulting by the new head chef by using bad language and swearing to me which effected by health and my doctor signed me out of work for three weeks, sick cert provided during this break.

Unfortunately management did not discuss the case with me to now and just stress me for last couple of weeks with no hearing of my complaint and taking me off work roster for last two weeks with no work and now asking me to resign after 19 years working with no fault of me as you’re aware.”

Ms Foley sent a further letter to the Complainant dated 12 February 2020 indicating that the Respondent would hold a hearing into the Complainant’s grievance on 2 March 2020. Ms Foley summarised the Complainant’s grievance as: “You state that your hours were reduced to 28 hours per week.” The Complainant told the Court that his grievance in fact was twofold: firstly, that he was rostered at that time for zero hours and secondly that he had been mistreated by the new head chef. The proposed grievance meeting was cancelled by Ms Foley on 1 March 2020 due to the Covid outbreak.

The Complainant’s evidence then turned to notification of a disciplinary meeting he received from Ms Foley by letter dated 27 February 2020. Again, he said, the proposed disciplinary meeting – scheduled for 23 March 2020 – did not take place. In or around this time, the Complainant said that he had approached the Respondent for a loan to help him cover his living expenses but was told to apply to the Department of Social Protection. He said he went to this local Intreo office but was told there that he was not eligible to receive any payment as he was still in employment with the Respondent.

The Complainant told the Court that he then telephoned the Respondent’s office and was told to come in to sign a document and that he would be ‘fired’. The Complainant was firm in his evidence that he had never been told by the Respondent that he had been dismissed.

Counsel then directed the Court to a letter dated 19 May 2020 from the Respondent to the Complainant in which the Respondent had asserted that the Complainant had left its employment on 16 January 2020 notwithstanding Ms Foley’s correspondence of 27 February 2020 inviting the Complainant to a disciplinary meeting on 23 March 2020. The Complainant told the Court that he had not resigned his employment on 16 January 2020 and continued to regard himself as an employee through May and June until he received an offer of alternative employment on 19 July 2020 with Sparks Café and Bistro where he worked approximately twenty hours per week and was paid €15.00 per hour. He continued to work for that employer, he said, until June 2024 and took up further part-time employment in Celbridge on 1 October 2024.

The Respondent’s Position

Mr Myles Kirby, Liquidator, attended on the Respondent's behalf. He confirmed that the Respondent is in liquidation and that no witnesses were available to attend. Mr Kirby put two questions to the Complainant by way of cross-examination. In answer to those questions, the Complainant said that he last attended for work with the Respondent on 13 January 2020 and that his dated of alleged constructive dismissal was 19 July 2020.

Discussion and Decision

On the basis of the Complainant’s uncontradicted evidence, the Court finds that the Complainant terminated his employment with the Respondent on 19 July 2020 when he had received an offer of employment elsewhere. The Court finds that the Complainant’s decision to do so was reasonable in all the circumstances having regard to the Respondent’s prolonged delay in addressing the Complainant’s grievances and its unilateral decision to reduce his rostered hours from forty to twenty-eight to zero.

Having regard to the Complainant’s evidence of loss and mitigation, the Court finds that he does not have a substantial loss arising from his constructive dismissal and, therefore, awards him four weeks’ pay based on a twenty-eight hour week at €16.00 per hour. Accordingly, the Court measures the compensation payable to the Complainant at €1,792.00.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
6 June 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.