Complainant

Respondent

Anonymised Parties

A Manager

A Voluntary Body

Representatives

Brendan Byrne : UNITE the Union

Respondent Manager accompanied by the Board Chairman.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00004982-001

26/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00004982-002

26/05/2016

(1)   Unfair Dismissal Complaint - CA-00004982-001

An extensive written submission and detailed oral evidence was presented.

The Complainant was first employed by the Respondent in December 2007. Despite a number of relocations and issues arising from the service funding issues during the period of the financial crisis he worked happily until late 2013. Issues of Service provision, resource allocations and interpretations of duties with his new Manager Mr. XA began to accumulate. By 24^th April 2014 issues had accumulated and the Complainant went on sick leave with work related stress and mental exhaustion from that date.

On the 1st September 2014 the Complainant attended MedWise, Occupational Health Consultants, at the request of the Respondent. He was deemed to be unfit for at least a further two months but fit to meet with his Managers to discuss his work related issues. MedWise recommended that a HR Specialist be invited to assist in this process.

A HR Specialist arranged meetings in December 2014 and January 2015. A number of Recommendations were made by the HR Specialist.

The key follow up point by the HR Specialist was that a meeting was recommended between the parties to address issues.

Various dates for meetings were proposed and extensive correspondence took place between UNITE and the Respondent. UNITE lodged a complaint under the Industrial Relations Acts on the 3^rd of September 2015 alleging failure by the Respondent to engage properly in discussions regarding the return to work of the Complainant.

In November 2015 a Mediation exercise took place with an Independent Mediator but was somewhat overshadowed by an “off the record” meeting between UNITE and the Chairman of the Respondent. This proved inconclusive as the Respondent’s parent funding Organisation would not sanction any additional expenditure on an Exit package.

The Respondent wrote to the Complainant on the 15^th February 2016 instructing a Return to Work on the 22^nd February and failure to do so would be deemed a “Frustration of Contract” leading to an ending of the employment relationship.

A WRC Rights Commissioner hearing was held on the 25^th February 2016. The Respondent did not attend this hearing. In essence it found in the Complainant’s favour regarding the progress of discussions.

The Complainant employment was ended by letter of the 23^rd February 2016. The Complainant appealed the decision and an Appeal hearing was held on the 29^th March 2016. It was unsuccessful.

In summary the Complainant maintained that he had been dismissed without proper opportunities being afforded to have discussion regarding his return to work. The failure to attend the Rights Commissioner hearing was symptomatic of the Respondent’s approach.

The Complainant was seeking Reinstatement.

(2) Minimum Notice & Terms of Employment Act, 1973 complaint - CA-00004982-002

The Complainant was not afforded proper notice.

(1)   Unfair Dismissal Complaint - CA-00004982-001

Extensive Oral and written submissions were presented to the Hearing.

The basic history of the case, prior to the middle of 2015, was as set out in the Complainant’s submission above. Extensive discussions and correspondence had taken place. The services of an HR Specialist had been utilised in December 2014 and January 2015. A medical referral to Med Wise had taken place in September 2014. On the 10^th September 2015 the Respondent arranged a second occupational health assessment by MedWise. This took place on the 18^th September 2015. It was recommended that a mediated return to work take place with appropriate employer supports.

To facilitate the MedWise suggestion the services of an Independent Mediator service – Fresh Thinking Consultants was engaged and was as stated above somewhat over shadowed by off the record discussions concerning an Exit package. This came to naught. The Respondent felt then that it had no realistic option but to inform the Complainant that he had frustrated his contract if he did not return on the nominated date of the 22^nd February 2016.

As he did not return on the due date the Complainant effectively ended his own employment.

Section 6(4) of the UD Act 1977 applies – “capability “of an employee and the Dismissal cannot be deemed to be Unfair.

In summary the Respondent had gone to extraordinary lengths to engage with the Complainant, had utilised the services of a respected HR Consultant and a recognised Mediator, and had engaged in protracted correspondence and in all matters acted as an exemplary employer.

The Respondent did not attend the Rights commissioner hearing as by that date, the 25^th February 2016, the Complainant was no longer an employee.

(2) Minimum Notice & Terms of Employment Act, 1973 complaint - CA-00004982-002

As the employment was ended for good cause the provisions of the Minimum Notice Act do not apply.

The Key questions in this case :

Was the Dismissal Unfair due to either

(1)    Procedural Shortcomings on the Respondents Behalf?

(2)    Fundamental mis application of the law – in this case the “Frustration of Contract” doctrine

(3)    Is Section 6 (4) of the Act applicable as a defence for the Respondent   – “Capability , competence “ of the Employee

3:1  The Relevant Law: The Unfair Dismissal Act, 1977, S.I. 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures – The requirements of Natural Justice.

It is now well accepted law that it is not the function of an Employment Appeals Tribunal or by extension an Adjudicator to re-investigate a Dismissal decision. The role of the Adjudicator is to ensure that Natural Justice was observed and that any decisions were “Reasonable” i.e. were what a reasonable employer would do in similar circumstances.

3:2   Procedural Issues

In Frizelle v New Ross Credit Union Ltd. [1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

Section 6, 7, 8, 9 and 10 of the Code of Practice SI 146 of 2000 develop these points in greater detail.

Conclusions regarding Procedural Issues

In the case in hand there can be no doubt but that extensive efforts were made by the Respondent and the Complainants’ Representatives to seek a mutually acceptable solution. The requirements of SI 146 and the Frizelle case would appear to have been satisfied up the date of the late 2015 Mediation.

It was unfortunate that this Mediation process in late 2015 with Fresh Thinking Consultants became overshadowed by informal discussions between Representatives on an Exit package.   That this failed appeared to be due to the Respondents inability to get sanction from their parent Organisation to allocate the necessary funding.

Effectively this brought matters back, in January 2016, to the then “status quo” of a suggested mediated return to work as suggested by the MedWise report of September 2015.

The Respondent then moved to end the employment based on the doctrine of “frustration of contract”.

3:3   Frustration of Contract

This is a legal concept imported from Contract Law and I attach a good summary on frustration of contract in the Common Law by George Waggott, Partner and Jennifer Bond, Associate of McMilllan Canada. 2017

a. what is frustration of contract?

The doctrine of frustration holds that where the occurrence of an event or the alteration of a

circumstance renders a contract fundamentally different in character from what the parties

originally intended, the contract may be terminated without liability. Frustration will only

apply where the event or circumstance was unforeseeable and where it occurred through no

fault of either party.

As with any contract, the employment contract may be frustrated. The burden of proof to

establish frustration rests with the employer. In such circumstances, both parties are

discharged from further performance and neither party will be entitled to damages as a

result of the termination. The employer is not obliged to give the employee common law

notice or pay in lieu of notice. The employer's only obligation, if any, is to pay the employee

his or her minimum entitlements under applicable employment standards legislation.

b. events and circumstances leading to frustration

of an employment contract

Frustration is a fact-specific determination that will be made on a case-by-case basis. Given

the potentially harsh consequences for employees, courts will closely scrutinize whether or

not a fundamental breach has occurred. For the principles of frustration to operate, it is not

sufficient that performance of the employment contract is more onerous or unreasonably

harsh. Instead, there must have been a radical transformation in the circumstances

governing performance. Generally speaking, an employment contract may be frustrated by

illness, death, statute or unforeseen circumstances such as a pandemic or catastrophic

event. Economic difficulties and lack of profit, even where not foreseeable, do not constitute

frustration.

The most common cause for frustration of an employment contract is an employee who is

unable to work because of a disabling illness. Where a permanent disability renders

performance of the employment contract impossible, the doctrine of frustration may apply.

Where an illness or disability is of a temporary nature, however, employees who are absent

from work may not be dismissed without notice or other obligation. Further, where an

employee has a disability that prevents them from performing their regular duties, but does

not render them altogether unable to work, human rights legislation may give rise to a duty

to accommodate the individual in question.

The difficulty often lies in determining whether an employee's illness constitutes a

permanent as opposed to a temporary disability and at what date this should be determined

to have occurred. Some key factors include: the nature and expected length of the illness;

the prospect of recovery; and, to a lesser extent, the length of service. The greater the

degree of incapacity, the longer the period of illness and the greater likelihood of

persistence,”

 
Ms. Frances Meenan in her text book Employment Law Round Hall 2014 states at Section 3.49

“The doctrine of frustration of  contract would have to be considered. The doctrine in short applies where contractual obligations can no longer be performed as a result of circumstances beyond the control of either party.”

The issue is further discussed extensively in Dismissal Law in Ireland by Mary Redmond –Tottel Publishing Ltd 2007

At Page 305 Section 15:18 she quotes from the Donegal County Council v Langan UD 143/1989 EAT case. Regarding a serious illness the EAT stated

“ It may be a long process before one is able to say whether the event is such as to bring about the frustration of the contract and that it is no longer possible to regard the contract as still subsisting”

Ms. Redmond paraphrasing the EAT stated at Section 15:18 Page 306 of the 2nd Edition.“The EAT warned that where there is a prospect of recovery for an employee, a lengthy absence does not necessarily frustrate the contract. The clearest evidence is needed”

Taking these legal points into account I found the following fact of interest.

The MedWise Occupational Health report of the 18^th of September 2015 found

“In my opinion X is now fit to meet the demands of his role and provide reliable and effective service. I recommend that he engages in a mediated return to work and the employer provides appropriate supports to facilitate this process”.

The Complainant was fit to return to work.

Conclusion regarding Frustration of Contract:

No common understanding of what “Frustration of contract” is, as set out above by the Authorities, can apply to the medical situation of the employee – he was fit to return to work and while, in oral evidence, it was apparent that the Respondent Managers had become quite exasperated with the Complainant over a two year period, I could not agree that the legal concept of “frustration of contract” had applied to any extent justifying a dismissal.

Relying on “Frustration of Contract” as a defence in this case was not sustainable.

3:4   Is Section 6 (4) of the Act applicable as a defence for the Respondent   – “Capability , competence “ of the Employee

The UD Act, 1977 regards proper consultations and employee inputs to decisions as crucial.

Regrading proper consultations with the Complainant , the “mediated return” suggested by MedWise,   I noted the Rights Commissioner Recommendation under the Industrial Relations Acts , 1990 -1990

Case :r-159260 –ir-15JW stated

“Based on the uncontested evidence presented at the Hearing I recommend that the complaint is well founded. The Respondent failed to positively engage with the claimant in a timely manner in order to resolve the grievances. This is despite the fact that the Respondent had received two independent medical reports and one IR report advising engagement with the claimant”

The non attendance of the Respondent at the Rights Commissioner hearing, of which they were clearly on notice, I found hard to understand. The RC hearing was on the 25^th February 2016 and the dismissal letter issued on the 23^nd February 2016. An earlier letter of the 15^th February had referenced the “frustration” argument to the Complainant. UNITE immediately contacted the Respondent requesting that issues be put on hold pending the WRC Rights Commissioner hearing.

The Appeal Hearing of March 29^th 2016 did not appear to me to satisfactorily address the Frustration Argument.

Conclusion regarding Section 6(4) of the Unfair Dismissals Act, 1977

In conclusion I found that in the closing stages, from the MedWise report of September 2015 to the date of Dismissal in February 2016 the efforts at Consultation and attempt to reach a Mediated return as suggested by MedWise failed to reach any adequate conclusion. They appeared to have been overtaken by the Frustration Argument in the Dismissal letters of the 15^th and 23^rd of February. In oral evidence, the Manager Mr. XA, for the Respondent stated that the “Frustration” line of approach had been decided upon at a Board meeting at this time.

3:5     Summary overall conclusions.

In summary conclusion I found that the Dismissal was unfair on the grounds that

(1)    Frustration of Contract did not apply – this argument was the principal plank of the Respondent’s arguments both in written and oral submissions.

(2)    Proper discussions following the Med Wise report of September 2015 regarding the complainants return to work (having been declared fully fit) had not taken place to the required degree. The Union – UNITE was actively engaged and saw the Rights Commissioner process as an opportunity to move things forward to a solution. The non attendance of the Respondent to a clearly well flagged RC hearing was not conducive to an agreed settlement.