ADJ-00007578

Complainant

Respondent

Anonymised Parties

Electrician

Transport provider

Representatives

Bruce St. John Blake & Co. Solicitors. Mr Michael Kinsley, BL

Ms Cathy Maguire,

BL.

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-00010223-001

14/03/2017

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

CA-00010223-002

14/03/2017

The hearing into the complaints commenced on the 11/9/17 was adjourned and was heard on the 28/11/17 and 9/5/18.

The complainant commenced employment as an electrician with the respondent on 23 March 2003.

Following a street fight In June 2016, while on leave, he was arrested, prosecuted and received an 8-month prison sentence in Paris. This was reduced in October 2016 to 20 weeks.

By letter dated the 12 September, the respondent informed the complainant that his employment would be terminated on 14 September as he would be unable to fulfil the terms of his contract.

The complainant’s gross weekly salary is €1,288.

He submitted his two complaints to the WRC on 15 March 2017.

The dismissal is contested.

CA-00010223-001

At the outset the respondent argued that as the case in their view is one of frustration of the contract, the statute does not apply. The onus does not, therefore, rest with the respondent to disprove the complaint.

The complainant’s representative argued that the onus lies with the respondent to prove that the contract has been frustrated.

The Adjudicator advised that without prejudice to the respondent’s position – which would be considered later -the case would proceed as per the statute and that she would hear the substantive case.

The complainant was employed as an electrician with the respondent since March 2002.

Evidence of witness 1.

Mr H1, the complainant gave evidence. He had worked as an electrician for 14 years, servicing all the respondent’s electrical equipment and systems. Twenty-four electricians usually made up the team and they were split up into two groups. They had discretion to switch sometimes with a colleague from a separate district. If none were available, they would contact their supervisor, Mr L. The complainant states that there is fluidity and electricians stationed in one area of the city side can and do travel to another location as needs arise.

Having consumed significant amounts of alcohol and believing himself and a friend to be in danger, he got involved in a fight while on annual leave in June 2016. He was arrested on the 15 June, detained, prosecuted in the Paris Metropolitan Court, and sentenced to 8 months prison on 17 June 2016. He states that because of a fatal incident at another sporting event, the French judge informed him that he was going to make an example of him. The complainant was informed by letter dated 12 September that his employment was to be terminated on 14 September as “owing to the circumstances of your custodial sentence you will be unable to fulfil your contract of employment over the next number of years”

While in detention he was not allowed to send any letters because an appeal was underway against the sentence. External phone calls were impossible.

The complainant advises that periods of leave are allowable. He took 13 weeks leave of absence, October 2014 -February 2015. His duties were undertaken by a colleague who replaced him. No additional staff were appointed. At the time the respondent was offering career breaks.

Mitigation of loss. He submitted evidence of 4 applications for jobs. He applied for a job in Canada and one in California and for positions in Ireland. He did get a job in February 2017 for 5 to 6 days buying and selling cars at a rate of €120 a day.

Evidence of witness 2, Mr H2.

The complainant’s father, Mr. H2, gave evidence. The complainant had been unable to contact his family during his initial pre-trial period of detention. The complainant’s father was informed of the complainant’s appearance in court on the morning of 17 June 2016 and of the 8-month sentence served on the same day. He was advised that the sentence would most likely be significantly reduced. After several unsuccessful efforts, the complainant’s father made contact with his son in prison. Approximately one week after the sentencing on the 17 June the complainant’s father contacted the complainant’s supervisors, Mr L and Mr M. He advised the two managers of the length of the sentence but that with good behaviour it could be reduced to 4 months and that it would most likely be reduced significantly. The two supervisors advised the complainant’s father that they would pass on this information to management.

On 21 July the complainant’s father advised Ms S, Resource Manager in the HR department that at maximum the sentence would be 8 months, but there was a strong possibility that the sentence would be reduced to four months. She advised him that the respondent had not heard anything from the complainant or his family up to that point. The complainant ‘s father responded that he had contacted the 2 supervisors, Mr. L and Mr. M in the days following the sentencing. Ms. S stated to the complainant’s father that she was dismayed at the failure to pass on the information.

She advised that no decision had been taken in relation to the complainant and asked to be kept updated.

On 15 August 2016 the complainant’s father updated Ms S concerning his possible early release. He requested the complainant’s contract of employment, a request which originated with the complainant’s French lawyer who believed that a valid contract of employment could assist the complainant in securing an early release at the sentence review which was scheduled for 20 October. The complainant’s father advised that Ms. S said, “we do not do contracts”. The complainant’s father submitted a letter to the court setting out his son’s employment and on foot of this, at his sentence review on the 20 October, his release date was bought forward to 4 November. He was imprisoned for 20 weeks.

Evidence of witness 3, Mr K.

Mr K was the complainant’s union representative at the relevant time. The complainant's father contacted him. He emailed the respondent on the 6 October and asked him to hold off on the dismissal until after the complaint had returned. He also advised the respondent that the respondent’s statement, dated 12 September” that because of his custodial sentence he would be unable to fulfil your contract for the next number of years” was mistaken and that the complainant was hopeful that he would get out early on good behaviour. The respondent refused the request. Business section had by that stage made a decision.

Mr K states that electricians can be brought from one area/section of the city to another.

Frustration of the Contract: The Law.

1.The complainant relies on the case of Zuphen v Kelly (2000)11 E.L.R.277. There the employer argued that the loss of a contract thus depriving the complainants of work amounted to frustration of the contract. The High Court cautioned against the application of the concept of frustration in the context of employment contracts. Murphy J said

“it seems to me to be inappropriate to in to apply a strict contract law approach to employment disputes. Attempts to so apply tend to obscure the social implications of certain kinds of conduct or events by reducing them to legalistic principles”.

The claimant states that in the light of the decision of the High Court in Zuphen, it's more appropriate to examine the surrounding facts, circumstances and the respondent’s behaviour in dismissing the complainant than to apply an overly formalistic approach to an interpretation of the doctrine of frustration.

The complainant points to similarities in Zuphen and the instant case.

The event which intervenes to a frustrate the contract must make the operation of the contract an impossibility rather than an inconvenience,

The fact that the contract survived this frustrating event (in Zuphen- the loss of the Eircom PLC contract on which the technicians were scheduled to work) lent an inconsistency to the respondent’s later claim that the contract had been frustrated. The court stated” indeed it is a very commendable attempt by the defendant company to secure such work for the technicians that they had employed is to my mind an indication that the contractual relationship survived, and which would be inconsistent with the contract being frustrated”.

Similarly, in the instant case the contract survived for over two months after the respondent had knowledge of the imprisonment of the complainant and their actions are therefore inconsistent with the proposition that the contract had been frustrated by the intervening event - the sentencing of the complainant to a term of imprisonment on 17 June- a fact made known to the respondent in late June. The complainant refers to the fact that the review of the sentence was scheduled for 20th of October and the expectation was that the sentence would be reduced.

Zuphen pointed out that the contract in question contemplated the absence of work on the underlying project. The complainant argues that this mirrors the situation in the instant case where periods of leave are allowed. The complainant’s application for leave in October 2014 was made to the line manager. He took leave from October 2014 to February 2015. A period of absence was a matter contemplated at the point at which the contract was entered into and renders absence (albeit of a different order) to be a matter which cannot be relied upon to claim that the contract was frustrated.

The respondent’s behaviour does not conform to the test set out in Langan v Donegal County Council UD 143/89, as to when and if a contract is frustrated. Langan stated that a lengthy absence (of almost 3 years due to illness), with the prospect of recovery does not frustrate a contract. It identified that the following factors should be part of an analysis as to whether the contract had been frustrated:

Length of previous employment,

Projected length of employment,

Nature of job,

Nature, length and effect of disabling event,

Need for work to be done,

Retention of employee on the books,

Employer engagement with employee or trade union.

The complainant also relies on Chakki v United Yeast Company Limited (1982) 2 ALL ER 446, where a sentence of 11 months was imposed. There the Employment Appeal Tribunal took the view that in imprisonment cases the question of frustration has to be answered by asking the following questions:

·         The length of the sentence

       •      looking at the matter commercially, would a replacement driver have to be engaged, when,

             in a permanent or temporary capacity?

     •       at the time when the decision had to be taken what would a reasonable employer have considered to be the likely consequence of an employee’s absence over the next few months?

Applying the Chakki decision- concerning the commercial necessity of replacing the employee, the business case is made and not signed off by the respondent until November 2016. It’s only then that the respondent started recruiting a replacement and it doesn't meet the criteria in either Langan or Chakki.

The complainant refers to Prior v City Plumbers EAT /0535/11 which decided that a prison sentence of 12 weeks was insufficient to frustrate the contract. That decision, plus Langan v Donegal County Council UD 143/89, and Hare V Murphy Brothers (1974)3 ALL ER, all establish that a prison sentence of itself is not sufficient to trigger frustration of the contract, but the surrounding facts and the length of the sentence impacting on the business of the employer must be looked at.

Applying these decisions to the instant case, the respondent failed to investigate the length of the sentence. The respondent failed to analyse how the complainant’s absence could be facilitated by a fixed term appointment or by a re- distribution of duties. It is submitted that the respondent had ample resources at its disposal to deal with the absence of the complainant. It is denied that the contract of employment had been frustrated.

The complainant's imprisonment and identity had been published in the media.

Mr L, his supervisor gave evidence on the impact of his absence on the employment was that they ‘muddled through’. Ms S, the respondent’s Resource Manager said that she couldn't talk about the impact of his incarceration on the business. Mr W, lead HR manager in Infrastructure didn't have a direct role in addressing the impact on the business. Mr F and Mr K who took the decision to dismiss are not present to be examined on how they complied with the requirements set out in the Langan case. The evidence was not submitted There is no evidence, using Langan, that the contract was frustrated in terms of an adverse impact on the business. Complainant states that the decision-makers responsible for meeting the criteria set out in Langan are not at the hearing to give evidence.

The complainant’s barrister distinguishes the cases relied upon by the respondent from the instant case. Regarding the cases cited by the respondent, the complaint’s barrister differentiates Kearney V Saorstat and Continental Shipping Co., Ltd. (1943) Ir. Jur. Rep.8 I as it refers to workers compensation .The High Court decision in the Minister for Agriculture V Barry, 2008, IEHC 216, was the seminal test for contract for services versus contract of services .It doesn't apply where a contract exists as   in the instant case against the respondent .He refers to the respondent’s reliance on Gallagher v Eircom, (2004) ELR. In that case the employee was in prison for eight years. Gallagher did not lay down any broadly applicable rules regarding when the doctrine of frustration applies nor is there any suggestion in that decision that a term of imprisonment, irrespective of its length, will automatically render the contract frustrated. In the case of D.O. v A National School, UD 181/2007 the EAT found that the contract had been frustrated by the imposition of a number of terms of imprisonment of up to 10 years. The respondent states that the sentence of 10 years is not comparable to the circumstances of the instant case.

Langan is consistent with Zuphen

A lengthy absence is provided for in the complainant's contract albeit not specifically incarceration but other periods.

Extracts at page 689 from Cox, Ryan, Corbett Employment law in Ireland (2009) presented by the respondent tie in with Langan.

Unfair Dismissals Act 1997.

In the event that the adjudicator finds that the contract was not frustrated, the statute applies.

The complainant submits that there is no connection between the crime of which he was convicted and his employment.

The summary dismissal on the 12 September constituted a denial of fair procedures and natural justice. The complainant refers to the requirements for procedural fairness set out in SI 146/2000 and elaborated by the High Court in Frizelle v New Ross Credit Union. The respondent acted unreasonably in not contacting the complainant, his family or his trade union representative.

He was not provided with an opportunity to appeal the decision.

He has applied for positions but has been unable to secure employment.

CA-00010223-002.

If the adjudicator does not accept that the contract was frustrated, then his statutory entitlement to notice under the Minimum Notice and Terms of Employment Act,1973-2001 brings his claim within the statutory time limits. His employment of 12 years with the respondent entitles him to a notice period of 6 weeks.

CA-00010223-001

The respondent stated that the case should be viewed as frustration of the contract, and not an unfair dismissal, due to the claimant’s inability to perform his contract arising from the 8-month custodial sentence. Mutuality of obligation is not deliverable hence there is no contract of employment. What happened was outside of the agency of the employer.

The burden of proof does not apply if the statute does not apply and therefore the burden does not rest with the respondent in cases involving frustration of the contract. The burden can only shift to the respondent if the matter of frustration of the contract is disproven.

The complainant was advised on 12/9/2106 that the contract was frustrated.

Disciplinary proceedings could not be activated as the complainant was incarcerated.

The respondent advised that the complaint is outside the time limit as the letter of termination is dated the 12/9/16 and the claim was lodged with the WRC on the 15/3/17.

The respondent advised that the first the company knew about the matter was when news of his arrest was published in the media July 1st, 20I6.

Absences such as sick leave and annual, leave are contemplated by the contract but not imprisonment.

Evidence of witness 1 for the respondent. Mr L.

He is the payroll supervisor and the complainant’s line manager for the past 6 years. He oversees a team of 43 which includes electricians and other crafts persons. Thirty-two other employees do the same work as the complainant. The respondent employs 200 electricians nationwide.

The complainant is an electrician, working on maintenance of the infrastructure. The daytime work is fault management, so predominantly their work is at night in preventative maintenance. Electricians work in pairs. They are not allowed work on their own. The city is divided into 4 sections.

At the end of the complainant’s holidays, his shift partner, Mr D, advised that the complainant had missed his flight back to Ireland. A few days later Mr. D said complainant might need extended leave. Mr K was moved over from another location to partner Mr D. Mr K, works predominantly in one location and moves out as required. Mr L advised Mr D that complainant should contact him directly. The complainant’s father contacted him, late June, and within a fortnight of his scheduled return from holidays. His father advised of the prison sentence, that it was a tough time for him (he had been very ill). It took a week to have a telephone appointment with the complainant and a visit even longer. In cross examination Mr L stated that he advised his supervisor Mr M, Technical Division, of the complainant’s 8-month prison sentence on the same day. Mr L did not inform HR.

The incident was published in the media.

An apprentice was moved in to replace Mr K. (the complainant’s replacement).

The impact of the  complainant’s absence on business meant they were down a man. They should have had an extra man which should have been the apprentice. All electricians are fully occupied. They had approx. 36 electricians before the complainant’s imprisonment.

The failure to communicate meant they had to move people around. It created extra work, but they managed without the complainant.

He was the complainant’s line manger when he agreed to his leave of absence request for 13 weeks in 2014. They did not replace him and managed from their own resources.

He stated he was aware of leave of absence contracts for periods of 1-year renewable for up to 3 years.

He confirmed that electricians from another city area were transferred to fill in for the complainant when he was imprisoned.

Mr. K fulfilled complainant’s role. It transpired to be a permanent arrangement.

The respondent took on 4 new staff on fixed term contracts of one year’s duration in the Summer of 2016. It was the first time to do so. He does not know if another apprentice was taken on to replace the matured apprentice who slotted into Mr K’s slot- the replacement electrician for the complainant.

Mr L stated that a month’s notice is required for leave requests. A replacement is provided for vacancies caused by arranged leave.

Mr T, the matured apprentice in Oct 2016, slotted in to replace Mr K, the complainant’s replacement. Mr T was scheduled to come on stream anyway even before the complainant’s imprisonment.

The complainant was replaced, and numbers were brought back up.

Evidence of witness 2, Ms S.

At the time of complainant’s imprisonment, she was the Resource Manager, part of the HR team, responsible for recruitment and resources in the respondent company.

She became aware of complainant’s 8-month prison sentence through media reports and later, from conversation with his father who rang her on 21/7/16 and told her that he had been in touch with the complainant’s supervisor, witness 1, Mr L and another man whose name he could not remember. He told her that access to his son was very difficult as was getting information. He mentioned the embassy might assist. He advised that he travel to France on 28 July to visit the complainant. The witness stated that the complainant’s father had stated that the solicitor representing his son had stated that the sentence was very severe. She passed this information on to her line manager. She remembers speaking with Mr L, witness 1, after she had spoken to the complainant’s father.

The complainant’s father rang her again in the second week of August to update her having visited his son in jail. He mentioned the advice given by the complainant’s solicitor was that he should not appeal the conviction. He stated that he hoped for a deportation order instead of a custodial sentence -no other mechanism was mentioned by the complainant’s father to reduce the sentence. The witness states that she does not remember saying that they would not issue a copy of the complainant’s contract to him. Had she been asked she would have supplied him with the existing contract. He has a letter of offer on employment. In 2012 the respondent issued contracts with terms and conditions to all employees. In cross- examination she confirmed that historical recruits – such as the complainant - may not have had contracts. His father did not advise of the value of the lawyer having his contract.

She could not recall if she discussed a mechanism to review the sentence.

The business case document setting out the requirement to replace the complainant was completed by Mr M1, Technical Division, to whom the complainant’s supervisor, Mr L reports in Oct 2016. The respondent signed it on 2/11/16. The document states that it is a safety critical position.

Impact of his absence. The business manager made a decision on this matter. Sometimes leave of absence can be facilitated, sometimes not.

The witness questioned the complainant’s assertion that there is fluidity in staff movement from one location to another.

A number of people were involved in issuing the letter of dismissal and in arguing that his job should be filled. She contacted her line manager who contacted the Director of HR. Mr M2, Director of HR made the decision to issue the letter of dismissal.

The respondent was in contraction mode. They had 11 vacant electrician posts which would be filled over time. The recruitment process began May 2016; she does not recall exact details of the recruitment process. Eleven additional employees did not represent expansion. They mainly were replacements for vacancies that could not be filled during the moratorium on appointments.

Ms S didn’t contact complainant’s father re length of sentence in September because he had updated her in August. She did not contact his union.

Leave of absence.

The respondent offers a career break scheme with breaks of up to 3 years. It is open to electricians if business can facilitate it. There are cases where it is refused. They employ staff on fixed term contracts. No consideration was given to replace the complainant with an employee on a FT contract.

She is unaware of the respondent’s disciplinary procedures. She had no direct role in disciplinary matters. She does not know who drafted dismissal letter. She does not recall asking about the length of the prison sentence. Her job is recruitment, planning and job severance.

Evidence of witness 3 for the respondent, Mr W.

Mr W was lead HR Manager in Infrastructure at the time of the complainant’s dismissal. He became aware that the complainant had received a prison sentence. Following his conviction, he sought legal advice. He was advised that the contract was frustrated. The matter of the complainant’s job was then referred to the Business Section and they considered the matter from July to September. Mr W was not aware at the time he sought advice legal advice that the complainant's father had made contact with the respondent. Advice was sought on an appeal of the conviction. The legal opinion was that the sentence could be extended. Mr K, HR manager, was the person who formed the view that the sentence could be appealed. Mr F, head of the Business Section, made the decision to replace the complainant.

Mr W drafted the letter of dismissal of 12 September 2017. The complainant was unable to fulfil his contract. Mr W knew the sentence was eight months and that it could be reduced or perhaps increased. It was signed and issued by Mr F, a technical, departmental manager.

The complainant’s trade union contacted the witness on 6th of October requesting that the decision to dismiss would be deferred until the complainant's return. Mr W sent the request for postponement of the decision to the CEO who reaffirmed the original decision. Mr W wrote to the trade union on the 7th of October, advising them that the situation was unchanged.

A request for leave normally goes to the line manager.

In cross examination Mr W stated that he did not know that good behaviour might reduce the sentence in September. He did not engage with the French lawyer or the complainant's father regarding the length of the sentence. He was not aware of a reduction in the sentence until after the dismissal took effect.

Frustration of the contract: The Law

The respondent states that the law does not provide jurisdiction to the adjudicator to hear the complaint. The complainant admitted conviction following an assault. The employee is obliged to provide the service and he couldn’t. Incarceration is an event external to the parties. Incarceration is a type of absence not contemplated by his contract.

He didn't contact the employer. It's misplaced to criticise the respondent for failure to contact the complainant.

The respondent contends that the authorities cited in their submission support their argument that his incarceration frustrated the contract.

The respondent refers to the mutuality of obligation which was set out in Minister for Agriculture V Barry, 2009, 1 IR 215 -a requirement on the employer to provide work for the employee and on the employee to perform the work. The complainant who was the subject of a custodial sentence couldn't carry out the work.

In the case of Gallagher -v- Eircom (UD955/2004) the employee was given an 8-year prison sentence in 1998 and in 2004 the employer sought to terminate their employment seven days before their release. The employee argued that he would only be on unauthorised absence for seven more days and it was unreasonable. The Tribunal found in favour of the employer on the legal point that the employee’s contract terminated by operation of law when it was frustrated by a custodial prison sentence. The tribunal found that this doctrine of frustration operated independently of the parties

In Harrington v Kent County Council, (1980) IRLR 353, a primary teacher was convicted of indecent exposure against female pupils and sentenced to twelve months imprisonment. He was dismissed on 11 December 1978. Two months later his conviction was quashed but this was held to be insufficient to overturn the decision that the contract was frustrated.

In the instant case the sentence wasn’t reduced until the 20th of October. The employer does not have to wait. A five to eight months sentence is sufficient to frustrate the contract.

Respondent refers to Hare v Murphy brothers (1974) 3 ALL ER 940. Denning MR took the view that the crucial factors in determining whether frustration occurred were the length of time the employee had been employed, the position which he held, the length of time which is likely to be away from his work and unable to perform it and the importance of getting somebody else to do his job in the meantime.

The Court of Appeal in FC Shepherd and Co Ltd v Jerrom (1986) 3 ALL ER 589 also looked at the surrounding circumstances in determining whether the contract of the employee (an apprentice, 21 months into a 4-year apprenticeship) had been frustrated. The custodial sentence imposed on the claimant was 6 months to 2 years for involvement in a gang fight. It ultimately lasted the minimum of 6 months. When set against the length of his apprenticeship, the imprisonment was held to have frustrated the contract. The court held that they didn't have jurisdiction to hear the complaint. It was also held that the machinery contained in the contract for ending the contract was not operative in the particular circumstances imposed on the claimant

Chakki v United Yeast Company Limited (1982) 2 ALL ER 446, held that frustration may not occur at the moment of sentencing but at a later point when the employer has to decide what to do about the absence. The fact that the respondent delayed in dismissing the complainant in the instant case, for nearly 3 months following the imposition of the sentence doesn't prevent the respondent from asserting that the contract was frustrated contrary to the assertions of the complainant.

Prior V City Plumbing Supplies, EAT/0535/11 held that a sentence of nine weeks incarceration wasn't sufficient to frustrate a contract.

In looking at the cases cited by the complainant, the respondent differentiates the instant case from Zuphen which wasdecided on the facts of the contract; the contract specified limited grounds for termination by the employer and the grounds did not include a lack of work. During the term of the contract the defendants lost the contract with Eircom. The unavailability of work was not so unexpected as to be beyond the contemplation of the parties beyond. The court accepted the plaintiffs’ argument that they wouldn't have entered into the contract had there been a condition that the contract would be terminated if work was not available and the defendant believed that Eircom had intended to upgrade all exchanges and it made a commercial judgement accordingly. Zuphen failed to establish that the contract was frustrated as the employer was opportunistic.

Langan v Donegal County Council UD 143/89, is a decision of the Irish EAT used by the complainant as authority to state that an obligation rests with the respondent consult. The respondent does not accept the application of Langan to the instant case.   There the EAT were testing the reasonableness of the employer’s action. Frustration wasn’t fully addressed in Langan.

The respondent’s barrister argues that the cases cited in their submission demonstrate that neither the Irish High Court nor the English High Court follow Langan.

The respondent disputes the assertion that they have failed to demonstrate a significantly adverse impact on the business. Ms. S’s evidence is that his job went into the recruitment pool and Mr T, the matured apprentice was made permanent. It was impossible to survive without having somebody to do the complainant's work. Regarding the direct examination of Miss S and her statement that she couldn't comment the impact of his incarceration on the business, the respondent does have the manager’s word on it.

The respondent does not accept the complainant’s argument that because periods of leave were contemplated in the contract that somehow the period of incarceration which is unapproved leave did not frustrate the contract. The availability of annual leave or sick leave is an entirely different form of leave.

The respondent was not obliged to carry out any particular process before treating the contract as frustrated (Jerrom).

The respondent states that looking at the facts of this case in the context of the authorities, the adjudicator should find that the contract was frustrated.

Loss.

The respondent states that if the adjudicator fails to find for the employer on the case of frustration, then it should be accepted that the complainant contributed 100% to the dismissal by making himself unavailable. Respondent states that the applications for jobs are in 2017.

CA-00010223-002.

The contract came to an end due to frustration. As a consequence, no obligations lie with the respondent under the Minimum Notice and Terms of Employment Act, 1973.

CA-00010223-001.

Does frustration of the contract apply to this complaint? This is the first matter to be decided.

It is a fact that the complainant was unable to perform his job for a declared period of 8 months, reduced, 18 weeks into the sentence, to 20 weeks.

Based on decided law, I do not accept that a custodial sentence per se automatically results in frustration of the contract. There are some critical factors that must be observed when looking at this, which were set out in Hare -v- Murphy Brothers [1974] 3 All ER 940, namely; the complainant’s length of employment, the position that they hold; is it one of trust ,the sentence, can the company keep the position open or must they replace the employee.

The authorities cited require that factors such as the length of the sentence, the length of time remaining on the contract (Jerrom), and the impact on the business must all be part of the employer’s analysis. It is not “a one – size fits all “approach.

Length of sentence.

There is no cut off point beyond which a prison sentence will automatically lead of frustration of the contract. The complainant’s sentence of 8 months, reduced to 5, is less than those where the contract was deemed to have been frustrated: 10 years(Gallagher) ;12 months (Hare), of which the employee served seven, and greater than 18 weeks (Prior), nine of which were served, and which was held to be insufficient.

All positions require the existence of trust between employer and employee, but it is obviously a more critical factor in the case of a teacher and his/her pupils (D.O.A V A National School and Harrington) where the contracts were held to have been frustrated.

Other Critical factors.

What is equally determinative as to whether frustration occurs is the length of time remaining on the contract. In Jerrom the apprentice had 23 months remaining on a four-year contract. The purpose of that contract was to complete his training within a defined period. The complainant in the instant case has 14 years’ service and as a 35-year-old, could expect his contract to run for another 30 years. So, a six month sentence out of an apprenticeship of 4 years and held to be of sufficient duration to frustrate a contract is a different matter to 8 months out the contract of this employee who at 35 had amassed 14 years’ service and had a foreseeable further 30 years of his contract left to run. The contract of an apprentice is to complete his training within a defined period.

Impact of his prison sentence on the business.

I accept that his absence meant that they were one below their usual complement of electricians. I accept the respondent’s evidence that all electricians were fully occupied. It is clear that a replacement was required. But the line manager referred to the apprentice as the” extra man” who stepped up as one element in the replacement chain for the complainant. The evidence of his line manager, the person most familiar with the respondent’s electrical maintenance requirements, was that they managed without the complainant. He also gave evidence of having managed without the complainant when the complainant took 13 weeks unpaid leave in 2013 to which he consented. At that point no replacement was engaged, and the complainant’s work was absorbed by his fellow electricians.

The respondent’s responsibility was to provide safe electrical systems in its infrastructure. It is a large organisation, employing approximately 3,806 employees, two hundred electricians nationwide and 36 in the district in which the complainant was stationed. The impact of his loss is not negligible but according to the evidence submitted, not to the extent necessary to impair the delivery of a safe electrical system. Its impact is therefore different to absences in a smaller organisation (Jerrom), or in schools (D.O.A V A National School and Harrington) where the offences were related to the claimant’s work.

The necessity for replacement.

The document stating that his job -a safety critical position- should be filled was drawn up in October2016, by Mr M who did not attend to give evidence. This was four months after the sentence was imposed and of which the respondent had knowledge, and a month after the letter of dismissal issued. It was signed off on 2 November, nearly two weeks after his sentence had been reduced and 2 days prior to his release on the 4 November. It was only after that that his replacement was engaged. I can only conclude that the need to replace him as opposed to moving people around was not immediate.

Means of replacement.

The workplace is a less static environment than when some of these cases were decided. Fixed term contracts for short periods are available and have been used by the respondent in 2016. Approved absences and leaves are commonplace.

It would be absurd to expect explicit provision for absences due to imprisonment, but it is the absence and the inability to perform the job which the respondent emphasises. Leave options well in excess of the 8-month period of imprisonment (reduced to 5), imposed on the complainant are contemplated by his contract of employment. The respondent refers to revised contracts issuing to employees in 2012/13.

The necessity to consult.

Langan pointed to the requirement to consult. The respondent states that this is a departure from the established English and Irish authorities. But whatever about the need to consult, a requirement for the employer to acquaint him/herself with the facts has been recognised:

“Would a reasonable man in the position of the party alleging frustration, after taking all reasonable steps to ascertain the facts , and without snapping at the opportunity of extricating himself from the contract, come to the conclusion that the interruption was of such a character and was likely to last so long that the subsequent performance or further performance of the contract would really amount to the performance of a new”Chakki O’Neill J, citing Evershed MR in Atlantic Maritime Co Inc v Gibbon(1953) 2 ALL ER 1086 at 1095 1096 on the matter of when the contract is frustrated . But this statement recognises that ascertaining the facts must be part of the analysis.

EAT determination UD 396/2012 in finding that the contract had been frustrated, a case submitted by the respondent, states in the final paragraph

“the uncontroverted fact is that at the date of dismissal, there was no prior information as to a possible date of return for the claimant. It was the respondent’s evidence that the job could not be left open for an unspecified period of time. There was possibility of a 10-month sentence. The respondent had very few employees."

In contrast to the absence of information cited above, the respondent (a large employer),testified that they were notified of the sentence in the last week in June. The complainant’s father provided two further updates in July and August, advising them of a sentence review and of an expectation that the sentence would be reduced. He was dismissed on the 14 September when they knew that the sentence was 8 months and not “the next number of years “as stated in their letter of dismissal. The respondent made no effort to ascertain any facts other than what was provided to them by the complainant’s father.

The complainant’s offence was dealt with by the French judicial system and he paid the penalty.

Based on the evidence submitted, the nature of the employment, the alternative options available to the respondent, (which included unpaid leave, replacement with a fixed term employee, the institution of disciplinary proceeding on his return to Ireland), and the authorities submitted, I do not accept that the 8 month prison sentence, reduced to 5, was sufficient to frustrate the contract.

I therefore must adjudicate on the complainant’s complaint under the Unfair Dismissals Act, 1977.

I accept that the summary dismissal on the 14 September 2016 deprived the complainant of the right to procedural fairness set out in SI 146/2000 and elaborated by the High Court in Frizelle v New Ross Credit Union. The respondent initiated no contact with the complainant or his family to ascertain the relevant facts. He was not given any advance notice, nor offered any procedure nor offered the right of appeal.

I find the dismissal to have been unfair.

Remedy.

The complainant sought re-instatement, re-engagement and compensation.

I find in the circumstances that compensation is the more appropriate remedy.

Loss.

I accept the respondent’s argument that the complainant contributed massively to the dismissal. In Jerrom, Lawton J. stated that he would reduce an award by 75% where imprisonment led to the dismissal. The complainant secured one week’s work. His efforts to seek employment have not seemed exhaustive. I note that efforts to mitigate his loss commenced in 2017.

I have decided to reduce the award by 85% due to the complainant’s contribution to the dismissal and owing to the leisurely attempts to mitigate his loss.

I decide that the respondent should pay the complainant the sum of €16,472.

CA-00010223-002.

I accept the claim that as the contract was not frustrated, the summary dismissal of the complainant was unfair. He therefore preserves his right to notice. The complainant is entitled under the terms of the Minimum Notice and Terms of Employment Act, 1973 to paid notice of six weeks. I require the respondent to pay the complainant the sum of €7,728 subject to all lawful deductions.

CA-00010223-001.

I find the complaint of unfair dismissal to be well founded. I require the respondent to pay the complainant the sum of €16,472.

CA-00010223-002.

I find the complaint to be well founded. I require the respondent to pay the sum of €7,728 to the complainant.

Whether custodial sentence frustrates a contract; Does Unfair Dismissals Act, 1977 apply; length of sentence; impact on the business.