Due to the narrow definition of frustration this argument is rarely made before the Workplace Relations Commission ("WRC") and often rejected. Historically, the frustration defence in employment related cases has been used in situations where an employee is convicted and imprisoned and arguably unable to complete their duties as in the case of Muiris Flynn v Iarnrod Eireann ADJ-00030195/2022.

A number of recent cases have now identified economic factors, which could in certain cases increase the scope for employers to make successful frustration arguments where the employment has ended due to external factors. Two recent cases have addressed what happens if an employment ends as a result of a failure to secure accommodation close to the workplace to facilitate an in person working arrangement.

The case of Wim Naude v University College Cork ADJ-00042625/2024 involved the termination of a professor's contract of employment due to a failure to re-locate to Cork to perform his teaching duties on site. The employment contract had commenced during Covid when remote teaching was facilitated by the University. When the college re-opened the employee struggled to secure accommodation in Cork due to the housing crisis. The company dismissed the employee via email stated that 'on a number of occasions since you commenced employment you have given absolute assurances that you would relocate to Cork to give full regard to your contract of employment …… by your actions you continue to frustrate the requirements of your contract of employment to such extent that UCC has no confidence that you will be in a position to meet the conditions of your employment on an ongoing basis. Accordingly, UCC now deems your contract of employment to be null and void and will proceed to give you three months’ pay in lieu of notice'.

The Complainant made the case that he was dismissed without any proper engagement, without the application of fair procedures and without an appeal. He indicated that it was always his intention to relocate to Cork and alleged that the Respondent had not supported him in relocating, despite having offered support to other staff.  The Complainant provided evidence of efforts to secure accommodation without success and highlighted the housing crisis as the reason for that failure.

Despite the fact that frustration was specifically referenced in the email indicating the employment was at an end, no frustration defence was presented to the WRC by the Respondent. One must assume that the frustration argument is likely to have been weakened by the fact that the remote/blended working model had been accepted by the Respondent for an extended period before the employment ended relatively abruptly. At hearing, the Respondent made the argument that they were simply not in a position to accommodate the Complainant's request for a blended arrangement twenty months into the Complainant's employment resulting in the termination. The WRC determined that there had been a complete failure to apply fair procedures in circumstances where the dismissal was carried out by an individual who appeared to have no authority to take that step and the refusal to offer an appeal and made an award of €300,000 to the Complainant. The decision not to raise the frustration argument in this case is noteworthy as it highlights the narrow application of this defence.

The more recent decision of Francisco Martin Santano v Enable Ireland Sandymount School ADJ-00050049/2024 addresses the issue of frustration directly. In that case the Complainant made an unfair dismissal claim when his contract ended as a result of his failure to secure local accommodation. The Complainant was employed by the Respondent as a Special Needs Assistant. In January 2023 the Complainant requested a one-year career break as he had received notice on his rental property. The Complainant had been living in the property for ten years.

The school provided for career breaks in their policies subject to certain conditions. The Complainant's request was denied by the school's Board of Management. The reasoning given was that only a limited number of teachers and special needs assistants were eligible for a career break at any given time. This was to ensure that the school was in a position to meet its obligations to its pupils. Unfortunately, that the quota had been met by the time the Complainant made his request.

The Complainant raised this issue with the Department of Education who referred him back to the Board of Management. The Complainant then appealed the decision but was unsuccessful in that appeal. When communicating the decision to the Complainant the Board of Management indicated that they were happy to consider the Complainant for future roles. The Complainant failed to secure accommodation and did not return to teach in September 2023. The Complainant later notified the Respondent in December 2023 that he would be returning to his role in January 2024 as he had secured accommodation.  In response, the Respondent confirmed to the Complainant in writing that his role, which was critical to the running of the school, had been filled in circumstances where his contract was frustrated by his failure to return to work for the new academic year in September 2023, four months earlier.

Ultimately, the Adjudication Officer ("AO") determined that no termination had taken place and that the contract ended by reason of frustration when the employee returned to Spain and failed to re-commence his duties when the academic year commenced in September 2023. In making this determination the AO relied on the career break policy which specifically stated that “the welfare and educational needs of the pupils shall take precedence over all other considerations. The sole discretion as whether to grant an application for a career break rests with the employer”.

Takeaways 

• Economic factors such as a failure to secure accommodation can give rise to a successful frustration defence but this will need to be carefully assessed on a case-by-case basis.
  
  
• When relying on a defence of frustration employers must be able to point to a triggering event which automatically terminated the employment. 
  
  
• Employers must be able to prove that this triggering event was due to factors outside the control of both parties.
  
  
• Employers must also be able to show that it was not possible to perform the contract as a result of the triggering event. 
  
  
• If an employer retains an employee after the alleged triggering event, it may weaken any frustration defence. 
  
  
• If the employer indicates that they are "terminating" the contract it is likely to undermine the frustration defence.
  
  
• Employers should consider how their hybrid working, career break and remote working policies might operate in the context of an employee's inability to secure accommodation which facilitates in person attendance at the workplace for an extended period.

This article was provided by Sinead Morgan, Legal Director leading DAC Beachcroft Dublin's employment team.

DAC Beachcroft Dublin

www.dacbeachcroft.com/en/