Winston v Delvo Traders Ltd

• Jurisdiction: Ireland
• Judgment Date: 29 July 2003
• Judgment citation (vLex): [2003] 7 JIEC 2901
• Date: 29 July 2003
• Court: Employment Appeal Tribunal (Ireland)

Employment Appeals Tribunal

EAT: Winston v Delvo Traders Ltd

Representation:

Claimant:

Mr. Conor Power BL instructed by Mr. John P. Prior,

John P. Prior & Co., Solicitors, Cavan Street, Oldcastle, Co. Meath

Respondent:

Mr. A. Rotherdale instructed by Ms Maura Hurley, H O'Reilly & Co., Solicitors, The Red Church, North Circular Road, Phibsboro Dublin 7

Abstract:

Employment law - EAT - Dismissal - Misconduct - Resignation - Whether unfairly dismissed - Minimum Notice and Terms of Employment Acts 1973 - 2001 - Unfair Dismissals Acts 1977 - 2001

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UDI210/2002

MN3171/2002

CLAIMS OF:

Michael Winston, Drimfomina, New Inns, Ballyjamesduff Co Cavan

against

Delvo Traders Limited, Malahide Road, Balgriffin, Dublin 17

under

UNFAIR DISMISSALS ACTS, 1977 TO 2001

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:

Ms. E. Daly B.L.

Members:

Mr. J. Reid

Mr. J. Dorney

heard this claim at Dublin on 29th May 2003

Facts A workplace disagreement caused an incident between the claimant and his foreman. Claimant said he had been threatened by the foreman. The foreman said he requested the claimant's assistance in a job he was doing and the claimant got annoyed leading to the exchange of words. The foreman denied that he had threatened the claimant. The claimant stated that he could not work with people with threatened him and requested his pay.

Held The claimant acted prematurely in resigning and this lost his claim for unfair dismissal.

The determination of the Tribunal was as follows:-

Background:

1 Dismissal was in dispute in this case.

2 The claimants case is that on the morning of 2nd July 2002, he was threatened with a hammer by a co-worker. The claimant left his workplace early and was on annual leave from 3rd July to 10th July. The claimant phoned the work office on 10th July and was told to come to work on 11th July. Later on 10th July the owner of the respondent company phoned him to say he had been replaced.

3 The respondent's case is that they deny that a member of the workforce threatened the claimant with a hammer. The claimant was helping the foreman and the tool the claimant was holding was knocked out of position. The claimant then flew into a rage and abused the foreman.

4 Later in the day, the claimant resigned and did not advise the respondent of any allegations other than that there was an argument. The claimant terminated his own employment and was not dismissed. The claimant was not on a period of leave between 3rd and 10th July 2003, nor was he advised to return to work on 10th July 2003.

5 The respondent company's business entails making kitchen worktops and stainless steel limits for hotels and restaurants. The claimant worked for the respondent company as a steel polisher.

Claimant's case:

6 The Tribunal heard evidence from the claimant. The claimant worked for the respondent company as a steel polisher. He began working with the respondent company circa 1988 and left to emigrate in 1994. He returned to Ireland circa 4.5 years later. In August 1998, he began working with the respondent company again.

7 In July of 2002, two or three weeks prior to taking holidays the claimant informed the respondent that he wished to take holidays. The claimant took his holidays in July every year and he always discussed taking holidays with his foreman before taking them. The claimant was taking his holidays to spend time...