Complainant

Respondent

Parties

Muiris  Flynn

Iarnrod Eireann

Representatives

Mr. Michael Kinsley BL, instructed by Margaret Tansey Bruce St. John Blake & Co. Solicitors

Mr. John Brosnan, Iarnroid Eireann

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-00040003-001

22/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00040003-002

22/09/2020

The Complainant commenced employment with the Respondent on 8th January 2008. The Complainant was a full-time, permanent member of staff, in receipt of a weekly payment of €988.00. The Complainant’s contract of employment was terminated by the Respondent on 25th March 2020.

On 22nd September 2020, the Complainant referred the present complaints to the Commission. Herein, the Complainant alleged that he had been unfairly dismissed and that he did not receive his statutory notice entitlement. By further submission, the Complainant alleged that the purported rationale for his dismissal, the frustration of his contract, was unlawful and consequently the Respondent was in breach of the Act. By response, the Respondent submitted that the Complainant’s dismissal was lawful in consideration of the imprisonment of the Complainant and the difficulties the same posed for the employer.

A hearing in relation to this matter was convened and finalised for 7th February 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

The Complainant was the only witness called in the course of the hearing. No technical issues were experienced by either side in the course of the hearing. No issues as to my jurisdiction were raised at any stage of the proceedings.

In evidence, the Complaint outlined that he was engaged as an electrician with the Respondent. On 24th September 2017, the Complainant was involved in a serious road traffic accident. The Complainant was over the legal limit for alcohol and subsequently plead guilty to a charge of dangerous driving causing harm. On foot of the same, the Complainant was sentenced to a four-year prison term, with the final 30 months suspended.

Following the accident, the Complainant informed his supervisor of what occurred. Thereafter, the Complainant was removed from any duties that involved driving a vehicle. No disciplinary investigation was commenced at this, or any other, point of the Complainant’s employment. During the period between the accident and the imposition of the sentence, the Complainant kept his supervisors updated as to the developments of the matter. In evidence the Complainant stated that he informed his supervisors of the likelihood of a custodial sentence being imposed in respect of the charge. 

Upon the imposition of the sentence in October 2019, the Complainant was given a period of three days in which to get his affairs in order prior to his imprisonment. During this time, the Complainant made his employer aware of this development, and advised as to the likely duration of this imprisonment. The Complainant subsequently received a letter of dismissal form the Respondent dated 8th March 2020, terminating his employment on 25th March 2020. Herein, the Respondent asserted that the Complainant’s contract of employment was frustrated as a result of his imprisonment the previous year.

By submission, the Complainant’s representative submitted that the Respondent had not demonstrated that the Complainant’s contract had been frustrated. In particular, the Complainant’s representative stated that in circumstances whereby the Respondent continued to treat the contract of employment as being in existence following the alleged frustrating event fundamentally undermined the Respondent’s position in this regard. It was further submitted that the Complainant’s contract of employment contained an express clause allowing for an extended period of leave to be taken by the Complainant. It was further submitted that the Respondent was clearly in position to continue its operations following the Complainant’s imprisonment. In light of the same, it was submitted that the Complainant’s imprisonment was an inconvenience for the Respondent, rather than the basis of the frustration of the Complainant’s contract. Finally, it was submitted that a contract may only be deemed to be frustrated following a period on consultation with the employee and a consideration of impact the same has upon the Respondent. In the present case, the Respondent made no effort to meet or consult with the Complainant, nor was any evidence adduced regarding a consideration of the effects of the absence upon the Respondent.

At the outset the Respondent submitted that on the Complainant’s imprisonment, they were required to consider their position regarding the Complainant’s ongoing employment. Following a lengthy period of consideration by management, the Respondent determined that the custodial sentence had resulted in the frustration of his contract. In particular, the Respondent had a requirement to recruit an additional electrician as a result of the Complainant’s ongoing absence. The Respondent corresponded with the Complainant informing him that his contract had been terminated by reason of frustration on 5th Match 2020, with the dismissal to take effect on 25th March 2020.

By submission, the Respondent stated that as the Complainant’s contract of employment was frustrated, the Respondent did not dismiss the Complainant and consequently, the complaint under the Unfair Dismissals Acts must fail. They submitted that an employee that has been the subject of a custodial sentence cannot carry out any work for the employer. In such circumstances, the mutuality of obligation between the parties is severed and the contract of employment is duly frustrated. While it is was accepted that a contract of employment is not automatically frustrated on the imposition of custodial sentence on an employee, the nature of the Complainant’s employment, coupled with the duration of the sentence served to frustrate the contract in this instance. It was further submitted that a period of leave on foot of the imposition of such a sentence was a matter that was not contemplated by the contract of employment.  

In the present matter, the Respondent has submitted that the Complainant’s incarceration served to frustrate, and consequently terminate, the contact of employment. In circumstances whereby this termination is affected by operation of law, the Respondent did not dismiss the Complainant within the meaning of the Unfair Dismissal Act, and consequently the present complaint must fail. By response, the Complainant submitted that his incarceration was not a frustrating event for the purposes of the contract of employment.  In such circumstances, they submitted that that Respondent dismissed the Complainant without recourse to any procedure and as such the dismissal should be deemed to be unfair for the purposes of the present Act.

It should also be noted that the defence advanced by the Respondent is not one expressly set out in the Acts. In this regard, the matter at hand is not a dismissal on the grounds of misconduct in respect of the Complainant’s admitted crimes nor is it a defence on the grounds of statutory restriction as provided for by Section 6(4)(1)(d) of the Acts. Rather the Respondent’s position is that when the termination occurs by operation of law, there is no dismissal and consequently the Complainant has no jurisdiction under the Acts.

In Employment Law in Ireland, Cox, Corbett & Ryan (2009) pg. 689, frustration of contract is described in the following terms,

“A contract of employment will be termination by frustration where performance of the contract becomes impossible to perform due to an unforeseen event outside the control of either party. In such situations the contract is terminated by operation of law”.

In the matter of Zuphen -v- Kelly Technical Services, [2000] 11 ELR 227,Murphy J. held that, “The basis of the doctrine of frustration would appear from the authorities is that there is a supervening event which must be so unexpected and beyond the contemplation of the parties, even as a possibility, that neither party can be said to have accepted the risk of the event taking place when contracting.”

And,

“The court must accordingly operate on a general impression of what the rule in relation to frustration requires. It is for that reason that special importance is necessarily to be given to the occurrence of an unexpected event that, as it were, changes the face of things. It seems to me that this is not the case. It is not hardship or inconvenience or a material loss itself which calls the principles of frustration into play. There must have been such a change in the significance of the obligation that the thing undertaken would, if performed, be a different thing from that contracted for.”

Murray J. went on to hold that,

“It seems to me to be inappropriate in that circumstance 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.” 

And,

“Indeed, the very commendable attempt by the defendant companies to procure such work for the technicians they had employed is to my mind an indication that a contractual relationship survived which would be inconsistent with the contract being frustrated.”

The first point raised by the Complainant is that his contract was deemed to be frustrated in March 2020, some four months following his imprisonment. The Complainant submitted that this fact evidences the point that the contract was not in fact frustrated by the Complainant’s imprisonment, and that it persisted for some time thereafter.

By response, the Respondent opened the case of Gallagher -v- Eircom (UD955/2004). Here, the Employment Appeals Tribunal upheld a dismissal on the grounds of frustration occurs on the date of the frustrating event, and not by action of either of the parties. This being the case, the date of frustration was the date on which the Complainant was imprisoned, as opposed to any date thereafter.

Notwithstanding the same, the Respondent was aware of the Complainant’s incarceration for a period of four months prior to their deeming the matter to be frustrated. I further note that in addition to maintaining the Complainant’s employment for this period of time, the Respondent allowed a period of notice of termination from the date of communication. Having regard to the foregoing, the Respondent’s own position in this regard is somewhat contradictory. If indeed it was the case that the Complainant’s contract of employment was terminated by operation of law the previous year, there would be no requirement to give him notice thereafter. The provision of the same is indicative of a contractual relationship that survived the event, as set out in Zupen.  

The Complainant also submitted that the Respondent failed to make consider the all the relevant matters prior to deeming the contract to be terminated. In the UK decision of 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. Likewise, in matter of Donegal County Council -v- Langan UD 143/89, the Employment Appeals Tribunal outlined nine relevant considerations that must be considered in such an event. The Tribunal emphasised the lack of consultation with the employee as a material factor in deciding whether the dismissal was unfair.

In the present case, the Complainant’s evidence was that he informed his employer of the likely imposition of the custodial sentence well in advance of the same. The Complainant gave further evidence that he informed his employer of the likely duration of the sentence as soon as the same was passed down, and a number of days prior to his commencing the same. In evidence he stated that the Respondent made no attempt to consult with him or his representative regarding these issues, instead simply corresponding with him to inform his that his contract had been terminated. While the Respondent’s submission denied some of these assertions, they did not call any witnesses to contradict the Complainant’s testimony in this regard. In addition to the foregoing, I find that the Respondent provided no direct evidence of an examination of the criteria outlined in Hare. The absence of evidence in this regard serve to undermine their position regarding the application of the doctrine in this particular instance.

Notwithstanding the foregoing, it is common case that the Respondent deemed the employment relationship to have persisted for a period of four months following the Complainant’s imprisonment. Throughout this time, it is apparent the activities of the Respondent continued without any noticeable disruption. Having regard to the same, the Complainant’s absence, while undoubtedly a hardship and an inconvenience for the Respondent, did not result in a requirement for the employment to be terminated.

Having regard to the accumulation of the foregoing points, I find that the Respondent has not demonstrated that the contract of employment terminated on the grounds of frustration. In such circumstances I find that the Complainant was dismissed by the Respondent in breach of the Acts, and consequently his application succeeds.

CA-00040003-001 – Complainant under the Unfair Dismissals Acts

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, I find that compensation is the most appropriate remedy in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. In this regard, I note that the Complainant’s evidence that he secured alternative employment following his dismissal, however the same was at a lower rate of pay and was not permanent in nature. In this regard, I note that the Complainant outlined difficulties he had maintaining employment, many of which were due to his difficulties regarding transport. Having regard to the totality of the evidence presented, I find that these difficulties cannot be attributed to the dismissal.

Notwithstanding the foregoing, I note that Section 2(F) of the Acts empowers me to consider the “extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.” In the present case, the Complainant’s conduct was a significant contributing factor to the dismissal.  In the matter of Electrician -v- A Transport Provider ADJ-000-7578, the Adjudicator found an 85% contribution to dismissal on the foot of a strikingly similar set of facts. 

Having regard to the totality of the evidence presented, in particular the evidence regarding mitigation and the finding in respect of the Complainant’s contribution, I award the Complainant the sum of €4,000 in compensation.

CA-00040003-002 – Complainant under the Minimum Notice and Terms of Employment Act

In circumstances whereby the Respondent paid the Complainant in respect of his notice, I find that the complaint is not well-founded.

Frustration, Consultation, Imprisonment