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-00010564-001

31/03/2017

The Complainant is a factory operative and commenced employment with the Respondent on the 1st of August 2001.

The Complainant’s case is that he was unfairly dismissed on the 17th of October 2016.

He was absent from work since March 2014 due to an injury to his shoulder.

English was not his first language and he required the assistance of his daughter to translate documents in English.

At the meetings, sometimes a translator was present and sometimes the translator was located in a different meat factory and would translate over the phone for him as the meeting went on.

He had received the staff handbook at the commencement of his employment. This was in Portuguese. He confirmed he still had it.

His role was packing products in the slaughter house and he had been working for the Respondent for sixteen years. His evidence was that he had an accident while working for the Respondent.

The complainant confirmed that he did meet with the Respondent’s medical experts. He also met with HR when required.

He gave evidence that there were so many meetings (with HR) that he couldn’t remember what was said at the meeting of the 10th August 2016. He said he could barely remember them.

He acknowledged receipt of the correspondence 26th August 2017 terminating his employment and agreed that he did not make an appeal. The reason that he didn’t make an appeal was that he couldn’t go back to work and “they” (the Respondent) was pushing him to make a decision. He further gave evidence that his daughter wasn’t around at the time to help him to make an appeal. He believed he would have to make his appeal in English.

He never saw a medical report.

He confirmed that he had a general knowledge of what the options were:

1. Go back to work, or
2. Resign

The time limit given to him to make an appeal was too little. It was 5 days.

He gave evidence that while he went to a solicitor in relation to seeking advice on a potential personal injury claim, but he relied on his daughter to translate.

He was in receipt of wages of €620.99 per week gross. He had not worked since the termination of his employment and was in receipt of a social welfare invalidity payment.

His representative submitted that there was no written evidence that alternative roles were considered or that the Respondent had a definitive medical report that he would never return to work as a boner.

The Respondent’s case was that the Complainant was reviewed on seven occasions by the Respondent’s occupational health physicians between the 8th of May 2015 and the 13th of June 2016.   There was also ongoing correspondence with the Complainant’s GP and the Complainant was also reviewed by a consultant in emergency medicine in January 2015.

The Complainant did not return to work and his role was held open for him for two years after his absence in March 2014.

He was met by HR on the 21st of June 2016 and the HR manager explained that his employment was being placed under review.   The Complainant advised that he was on the urgent list for surgery. The Complainant was advised that there were no suitable alternative roles on site with his current medical limitations.

I note that the Respondent retained hand written minutes of the meeting on the 21st of June 2016. It was confirmed that these minutes were not sent to the Complainant but were read through at the meeting with the translator in the Complainant’s presence.

Counsel for the Respondent submitted that it was not the Adjudicator’s role to substitute its views for that of the employer, but rather to establish whether or not the decision to dismiss was within the "band of reasonableness”. She referred to the requirements of Section 6(4) of the Unfair Dismissal Act and the four grounds set out in the decision of Lardner J in Bolger -v- Showerings (Ireland) Limited [1990] E.L.R. 184 namely

1)      It was the ill -health which was the reason for his dismissal

2)      That this was a substantial reason

3)      That the employee received fair notice that the question of his dismissal for incapacity was being considered and

4)      That the employee was afforded an opportunity of being heard

Following numerous meetings and medical assessments, the Respondent wrote to the claimant in his native Portuguese on the 4th of August 2016 asking for submissions as to why his position should remain open. The submissions were required to be lodged with the Respondent on the 10th of August 2016 at 2pm.

A meeting took place on that date. A translator attended the meeting. The minutes of the meeting were produced to me.

Ultimately the Respondent issued a letter of termination of employment dated the 25th of August 2016 which was again translated into Portuguese and hand delivered to the Complainant. This letter contained the content

“your contract has therefore become inoperable and in the circumstances, I have decided to terminate your employment with [Respondent] on the grounds of frustration”.

I have considered the evidence both oral and in writing provided to me.

I note that the Respondent has relied on for its defence on the legal principle of frustration of contract and also on the fact that the Complainant did not appeal the decision to terminate his employment. Oral submissions were made in relation to section 6(4) of the Unfair Dismissals Act 1977 as amended.

If the application of the principle of frustration is accepted, the contract comes to an end and the Complainant can no longer rely on statutory rights which depend on a dismissal, such as his unfair dismissal claim or minimum notice claim.

I note in this case the Respondent did pay the Complainant his minimum notice.

The general principle is that frustration of contract only applies where there has been some extraneous change of situation not foreseen or provided by the parties at the time of entering their contract, which makes it impossible for the contract to be performed or at least renders its performance significantly different from what the parties contemplated when they entered the contract.

However as with every dismissal, the Respondent must be able to justify the termination and must follow fair procedures in the dismissal process.

The doctrine of frustration arises by operation of law.   Thus, the courts have tended to interpret this doctrine narrowly and are slow to treat a contract of employment as frustrated.

The High Court case of Zuphen v Kelly Technical Services [2000] IEHC 117, warned of the dangers of applying the doctrine without caution in cases involving employment contracts. This attitude is also applied in UK employment fora decisions on the basis (as in this jurisdiction) that there are employment law provisions on the statute books (i.e. defences under the Unfair Dismissal Acts) which have application to the circumstances.

My function is not to substitute my views for the views of the Respondent, but to decide whether the employer has acted reasonably in the circumstances of this case.

What struck me most particularly at the hearing was that the Complainant seemed to have absolutely no English whatsoever and relied entirely on the translator and on his daughter who was accompanying him to the hearing. I note that he is a boner/butcher and would be aged 60 at his next birthday.

I note that the Respondent obtained several medical reports over the period of the Complainants absence on sick leave and the evidence given to me was that these were discussed at meetings with the Complainant. It did appear that not all of these medical reports were provided to the Complainant.   I note that there was correspondence with the Complainant’s GP and he provided to the Respondent details of MRI results, orthopaedic letters, pain management clinic letters, physiotherapy letters. The minutes of the meetings while reviewed with him on the day with benefit of the translator, were never furnished in writing to him.

The Code of practice on grievance and disciplinary procedures SI 146 of 2000 sets out examples of what procedures should be complied with in accordance with general principles of natural justice and fair procedures.

I note that that the Respondent did not provide the documents on which the decision to terminate his employment were made to the Complainant himself, on making that decision.

The Respondent argued that a number of these documents were provided by the Complainant’s GP to the Respondent.

I also note the evidence of the Complainant that he barely remembered what was happening in some of the meetings and his comment that there were so many meetings.

I note that the Complainant continued to send in sick certs after the letter notifying him of the termination of his employment. He sent in a sick cert on the 19th of September 2016.  

I was also struck by his comment that he thought he had to make his appeal in English.

I also note that the Respondent was in a difficult position and the evidence of the HR manager was very credible.

However, taking all of the above into account, I find in the circumstances of this this case that it would have been reasonable for the Respondent to provide all the documents on which it based its decision to the Complainant with its letter of termination. This is an element of procedural fairness and in the circumstances of this case for the Complainant to have an opportunity to be heard - and bring an appeal - he needed to be in physical possession of the information on which the Respondent made its decision.

For the procedural breach as outlined above I find that the Complainant was unfairly dismissed.   As he was not in a position to minimise his losses, I award him a payment of four weeks gross pay amounting to €2,483.96 taxable in accordance with the Revenue rules on termination payments.

Frustration of contract, unfit to work, fair procedures