Paul Houston v Rivieria Leisure Ltd

• Jurisdiction: Ireland
• Court: Employment Appeal Tribunal (Ireland)
• Judgment Date: 19 December 2008
• Judgment citation (vLex): [2008] 12 JIEC 1901
• Date: 19 December 2008

Employment Appeals Tribunal

EAT: Paul Houston (claimant) v Rivieria Leisure Limited (respondent)

Abstract:

Employment law - Unfair dismissal - Requisite service - Break in service - Jurisdiction - Whether the claimant's break in service meant that he did not have the requisite service to bring a claim for unfair dismissal under the legislation - Unfair Dismissals Acts, 1977 to 2001 - Minimum Notice and Terms of Employment Acts, 1973 to 2001

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:	CASE NO.
Paul Houston, Monfad, Newtowncunningham, Co. Donegal - claimant	UD697/08
	MN634/08
	WT286/08

against

Riviera Leisure Limited, Unit 1, Newtown BusinessPark, Newtowncunningham,

Co. Donegal - respondent

under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2001

ORGANISATION OF WORKING TIME ACT, 1997

UNFAIR DISMISSALS ACTS, 1977 TO 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:	Mr P. O'Leary BL
Members:	Mr D. Morrison
	Ms R. Kerrigan

heard this claim at Letterkenny on 19th December 2008

Facts A director of the respondent company gave evidence in relation to the claimant's employment. He stated that the claimant resigned on 5 March 2008 but on 19 March sought to return to work. He resumed work on 20 March on a temporary basis. The claimant was later dismissed following a period of one week's unauthorised leave. The claimant was not paid minimum notice. The claimant gave evidence that he left work on 5 March because he was upset by a phone call he received from the respondent. He stated that the respondent was angry and swearing at him and he did not want to work for someone that spoke to him like that. He stated that the respondent asked him to return to work and he did so on 20 March. The claimant had informed his office manager that he was taking holidays in June 2008. However, upon his return he was dismissed by the respondent.

Held by the Tribunal in allowing only the claim for minimum notice: That the claimant resigned from his employment on 5 March because of the language used by the respondent during a phone conversation with the claimant. He resumed his employment on 19 March 2008. The employee returned to employment with the same employer and consequently it was not the case that he considered the actions of his employer to be such that he could no longer work for him. Therefore, the claimant's break in service between 5 March and 19 March was caused by his own resignation without justification. It was not a case of constructive dismissal. The claimant had only 3 months service with the respondent subsequent to 19 March and consequently did not have the requisite period of service to bring a claim for unfair dismissal under the legislation.

The determination of the Tribunal was as follows:-

Respondent's Case

1 A director gave evidence on behalf of the respondent. The claimant was originally employed as a pool manager to oversee all the respondent's contracts, after two months it was clear that the claimant could not undertake this role. The respondent employed another manager and retained the claimant as a pool engineer. He confirmed that no contract of employment was issued to the claimant.

2 On the 31st October 2007 he received a phone call from his manager informing him that the claimant was refusing to travel to Omagh. He telephoned the claimant to ask for an explanation,the claimant told him it was too late in the day to travel. As a result of this he issued the claimantwith a verbal warning. He recalled that the claimant had been sent to service a hotel pool and whilethere he advised them that...