Complainant

Respondent

Anonymised Parties

Driver

Bus Company

Representatives

Barnaba Dorda SIPTU

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-00030961-001

17/09/2019

The issue in contention relates to an alleged unfair dismissal where the employer states that the contract was frustrated arising from a conviction that gave rise to a 4-year driving ban. The matter had previously been processed through the internal disciplinary process several years previously. However the ban from driving relates to court proceedings based on the same incident which gave rise to a ban from driving effective the 1st January 2019.

The complainant states that he has been dealt with harshly in contrast to the precedent and practice that has prevailed at his employment. Other drivers who have had driving bans were redeployed to other duties. The traffic incident that gave rise to the driving ban occurred in November 2014. Arising from that incident an internal disciplinary investigation commenced that in turn gave rise to a final written warning and a suspension. Parallel to this process criminal proceedings were in train and in January 2019 the driver in question received a driving ban.

The employer when they became aware of the length of the driving ban, believed that the contract had been frustrated. They contend that the length of the ban imposed by the Courts gave rise to a situation where the contract could no longer be performed and therefore was frustrated.

The employer totally ignored company/union procedures and practice regarding such cases, which have arisen in the past and the employee was redeployed. The company has many options for redeployment based on the size of operations and the significant numbers employed. Although the ban in this case was lengthy it is being appealed.

The company argue that as the event was never in the contemplation of either party; this was an important consideration to differentiate this case from the others and that a supervening occurrence has created a situation where the contract is not capable of being performed, is frustrated and has come to an end. However, other employees on long term sick or no longer able to work as a driver or another role based on a medical condition are redeployed and accommodated with a more suitable position.

The procedures applied by the company in this situation are unfair. The Union was totally side stepped. There was no consultation whatsoever. No communication occurred relating to alternatives or any reasons given why such alternatives were not available.

The Company is highly unionised- formal procedures are in place, agreed with the Union to manage such situations. These procedures were ignored.

In fact, the contract was terminated by the Company by paying him six weeks’ notice under the Minimum Notice and Terms of Employment Act 1973. His contract ended on the 24th April 2019. The company stated the contract was frustrated on the 1st January 2019 yet formally issued notice and confirmed the 24th of April 2019 as the termination date; not the 1st of January 2019.

The member has now appealed the severity of the driving ban and the appeal has not been heard to date.

The driver received a driving ban of 4 years effective from the 1st January 2019. The company had been in contact with the employee’s solicitor in connection with the Court outcome. When confirmed that a 4-year driving ban had been imposed effective 1st January; on or about early March 2019, they wrote to the complainant and stated that because of the driving ban, they had no alternative but to treat his employment contract as frustrated.

The length of the ban was clearly not contemplated or an event that could reasonably have been foreseen.

While the company has previously redeployed drivers; either as result of illness, that meant an employee could no longer drive, or a ban; this situation was very different. Typically, a ban would be for no longer than 6 months. If an employee could no longer work as a driver; based on a medical ground, a formal process commenced to see if a redeployment could be offered having regard to the medical advice from the Chief Medical Officer. Redeployment to an alternative position was not guaranteed. At any time there maybe up to 90 employees out of a very large workforce on long term absence. If an employee could not be accommodated after 2 years, they would either go on disability benefit as defined under the pension scheme or the employment would end and in time, they would receive a deferred benefit based on their service entitlement. It simply is not possible to facilitate everybody based on the demand.

However, the complainant’s case is unique having regard to the length of the ban. In the circumstances the supervening event that occurred on the 1st January meant that the contract could no longer be performed and was frustrated.

The doctrine of frustration applies to employment contracts and is defined in Cox, Corbett and Ryan, Employment Law in Ireland (2009) at page 689, where the contract cannot be performed due to an unforeseen event outside the control of either party and in such situations the contract is terminated by operation of law.

Section 1 of the Unfair Dismissals Act 1977(the Act) as amended defines dismissal at Section 1 of the Act and it follows where a contract is terminated otherwise than as detailed in the Act, it won’t apply, and the WRC has no jurisdiction to hear the matter.

In the alternative and without prejudice to the case made out to support the fact that the contract had been frustrated, if it is held that the respondent was dismissed, and the Unfair Dismissal Act 1977 as amended applies; then Section 6 (4) (d) would apply:

“(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

“(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

In other words, because of a conviction for careless driving and a subsequent 4-year ban; Section 6(4) (d) would apply as the claimant could not lawfully continue to work.

Finally, and in the alternative without prejudice to the foregoing; the complainant contributed to his dismissal and any award should be reduced by 100%. His conviction was determined beyond a reasonable doubt and occurred during his employment.

The employer did serve notice on the employee and his contract was terminated effective 24th April 2019. The supervening event that gave rise to the alleged frustration of the contract occurred on the 1st January 2019.

The Unfair Dismissals Act 1977 as detailed at Section 1(a) states:

“dismissal, in relation to an employee, means–

(a)    the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.”

“date of dismissal” means–

(a)    where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

On the 14th of March 2019 the employer writes to the complainant and states:

“Under the Minimum Notice and Terms of Employment act 1973 you are entitled to six weeks’ notice which will be paid to you on the 28th March 2019”

And on the 30th April 2019 in correspondence to the complainant the employer states:

“I am now advising that your dismissal from the Company’s employment is effective from the 24th April 2019”.

The company argues that the doctrine of frustration applies as the supervening event occurred on the 1st January 2019 with the commencement of the ban from driving for 4 years; thereafter, the contract was incapable of being performed.

However, in the company’s own record it states the effective date of termination of the contract is the 24th April 2019.

Section 6(4)(d) of the Act does provide for “the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or instrument made under statute”.

As the complainant has received a driving ban of 4 years the employee is unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or instrument made under statute.

On the facts of this case, I have determined that the Unfair Dismissal Act 1977 as amended does apply to this complaint having regard to the effective date of termination which was the 24th April 2019; payment of notice and section 6(4)(d) which clearly provides for a situation such as a driving ban.

The matter that I must consider relates to the reasonableness of the conduct of the employer as provided for under 6(7) of the Act:

(7)   Without prejudice to the generality of subsection (1) of this section, in determiningif a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —  

(a)   to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b)   to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph(d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.]

This is a dismissal made in the context of a new supervening event based on a statutory decision; the internal disciplinary process had concluded several years previously. There is helpful case law (Boucher UD 882,969) relating to what a reasonable employer would do in a no-fault redundancy situation and the obligation to conduct a fair consultation process in contrast to the fair procedures required when an employee is accused of a wrong.

In the context of a statutory ban for 4 years what is reasonable and fair? Should the following steps characterise a fair consultation having regard to the unique facts of this case?

·         the exploration of alternatives;

·         a consultation process around the likelihood of termination in the absence of identifying a suitable alternative

·         and a timeframe for the decision to be made and clearly either temporary redeployment to another role or paid leave until the final decision was made?

The company decided that the contract was frustrated and therefore such a consultation process was not appropriate.

The respondent argued that the Unfair Dismissal Act does not apply arising from the unique facts of this case and the doctrine of frustration; the contract ended on the 1st of January 2019.

I have determined that the Act does apply; having regard to the company’s own actions to terminate the contract to pay notice and the effective date of termination being the 24th of April 2019:

“dismissal, in relation to an employee, means–

(a)                the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.”

There is no question that the complainant meets the service requirement of 1 year and that matter is not in dispute.

The company states that it did in fact consider alternatives. However, it didn’t consult with the complainant about alternatives because the ban was for 4 years and consistent with their policy not to accommodate redeployment for a period of absence greater that 2 years. It was also minded of the fact that at any one time 90 or more employees were on long term leave; their options in this case were severely constrained and limited.

On balance does this meet the requirement of acting reasonably- and not as defined by the adjudicator; but based on the standard of a reasonable employer having regard to the unique facts of this case and the length of the driving ban? I believe that having regard to the band of reasonableness test; a reasonable employer could and is likely to have dismissed in such circumstances. However, would a reasonable employer have chosen not to consult with the employee and is the procedural deficit of such significance as to make the dismissal unfair?

The parties have referenced a significant body of case law to argue for their respective positions. In the first instance arguing for the applicability of the doctrine of frustration or not based on the unique facts of this case.

The respondent presenting a separate book of cases consisting of 9 cases Neville & Sons v Gaurdian Builders [1995] 1 ILRM 1; National Carriers v Panalpina Limited [1981] A.C. at p 700F.; Kearney v Saorstat & Continental Shipping Co., Ltd. [1943] Ir. Jur. Rep. 8; Zuphen v Kelly Technical Services Ltd [2000] 11 ELR 277; Barry v Minister for Agriculture [2009] 1 IR 215 at p. 230; Hare v Muphy Brothers [1974] 3 All ER 940; FC Shepherd & Co-Limited v Jerrom [1986] 3 All ER 589; Harrington v Kent County Council [1980] IRLR 353 and Chekki v United Yeast Co. Ltd [1982] 2 All ER 446. These cases relate to frustration of contract and the appropriateness of an Industrial Tribunal to hear matters that clearly fall outside their jurisdiction.

As stated I have concluded that the matter is properly before the Work Place Relations Commission for adjudication having regard to the fact that the contract was in fact terminated by the employer ending on the 24th April 2019.

The complainant relying on Williams v Watsons Luxury Coaches Ltd [1990]; Zuphen v Kelly Technical Services Limited [2011 ELR 277]; Langan v Donegal County Council UD 143/89 and Kearney and Tesco Ireland Ltd UD86/2010 arguing that it is not always helpful to deal with cases of incapacity by applying the doctrine of frustration into contracts of employment and also relying on Section 6(4)(d) of the Unfair Dismissal Act 1977 that provides for dismissal based on a statutory decision. The complainant references Frizelle v New Ross Credit Union [1997] IEHC 137 and Bank of Ireland v James Reilly [2015] 26 E.L.R. 229 relating to fairness and proportionality which they argue were absent in this case.

Fair procedures regarding a situation where the contract can no longer be performed are substantially different to one where an employee is accused of a wrong and if proven could lead to dismissal. In this case a supervening event; the statutory decision to impose a 4-year ban, gives rise the decision to dismiss. In Hickey v Eastern Health Board [1990] E.L.R. the report succinctly details the finding of the Supreme court that is relevant to the facts of this case:

Held, by the Supreme Court (Finlay CJ, McCarthy and O'Flaherty JJ concurring) in dismissing the appeal:

                       (1) The rights of an employee in regard to dismissal do not depend on whether such employer is a servant or an officer, but rather on the reasons for and circumstances surrounding the dismissal. Glover v BLN Ltd [1973] IR 388 applied.

                       (2) Since the appellant had not been dismissed for any fault, or any failure to perform her duties properly, the rules of natural justice relevant to dismissal of a person for misconduct did not apply to her case.

Having decided that the Unfair Dismissal Act does apply as detailed; the burden of proof rests with the employer to show that they have acted fairly and reasonably in the context of the supervening event and the reasons for and circumstances surrounding the dismissal.

Section 6(4)(d) states:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employer shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. “

The company writes on the 14th of March 2019 to the complainant and states:

“We note you have been convicted of careless driving and received a four year driving ban effective from January 1st 2019.

As you are not currently in a position to drive buses for (anonymised) due to the circumstances you find yourself in, regretfully we have no alternative but to treat your contract of employment as having been frustrated by virtue of this driving ban.

Under the Minimum Notice and Terms of Employment act 1973 you are entitled to six weeks’ notice which will be paid to you in advance on the 24th March 2019”

Section 6(4)(d) applies to the claimant and on balance the employer acted reasonably in terminating the contract having regard to the 4-year driving ban and the fact that it arose from a ban imposed by statute. The employer has extensively explained why it was not appropriate to accommodate the complainant in this case, based on competing demands and the length of the driving ban. This explanation may have given greater context and elaboration for the reason to dismiss if contained in the letter of the 14th March 2019; however, the reasons for the decision were clear and without any personal malice or motivation again citing from Hickey:

“There can be no question, nor is there any allegation that the decision was arbitrary or capricious or induced by a wrong motive. The terms of the letter informing her of the decision are the clearest possible indication of the absence of any suggestion of wrongdoing or misconduct”

Similarly, in his case the reason is unambiguous and clear and solely derives from the statutory ban.

I find that the claim is not well-founded having regard to all the circumstances of this case and dismiss the claim.

I find that the claim is not well founded and as required by Section 8 of the Act, I dismiss the claim.

Contract Frustrated-Fair Procedures