Complainant

Respondent

Parties

Francisco  Martin Santano

Enable Ireland Sandymount School

Complainant

Respondent

Anonymised Parties

Representatives

In person.

Kevin Roche BL instructed by Lorcan Maule, Mason Hayes and Curran

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-00061368-001

31/01/2024

The complainant entered a contract of employment with the respondent on 1 September 2019, he was employed as a Special Needs Assistant.

This complaint was received by the Workplace Relations Commission on 31st January 2024.

The complainant did not provide a submission for the hearing of the complaint however the complainant did provide a comprehensive written timeline included in the manual complaint form he completed and sent to the Workplace Relations Commission on 31st January 2024.

The following is a summary of this timeline as completed by the complainant.

January 29th, 2023

I informed the B.O.M. at the school that I was requesting a one-year career break from my employment with Enable Ireland at Sandymount School. This career break would commence at the start of the new academic year 2023-2024. Due the unforeseen circumstances, cost of living crisis, accommodation crisis, unable to purchase a property with mortgage approval, unable to rent a property to live and work in Dublin and facing eviction in March 22"d 2023, which I managed to extend with my landlady until June 30th  2023, to finish out my work commitments for the school year 2022-2023, and was left with no other option but to relocate out of the country to my home in Spain. I promised an update to the B.O.M of Enable Ireland Sandymount School should my housing situation improve and update them for my return to employment.

February 21st, 2023

A decision was made by the B.O.M. to deny my application for career break as the school was abiding to the school policy circular updated in February 2022, that only 1 in 7 teachers approx., and 1 in 23 Special Needs assistants approx. were eligible for career break. The quota for teachers and special needs assistants was granted and my application was subsequently denied.

April 2023:

ln the interim period I contacted my employer, The Dept. Of Education, Human Resource Dept., in Athlone, to outline the predicament of my specific set of employment/social circumstances. They advised me that this situation was a matter for the B.O.M. at the school to resolve, and I was entitled to appeal the outcome.

June 20th, 2023:

The school Principal communicated with me by WhatsApp messaging requesting a letter in relation to my contract of indefinite duration, (Letter of resignation).

June 20th, 2023:

I furnished an appeal letter to the B.O.M. of Enable Ireland Sandymount school as follows.

Following advice of the Department of Education Human Resource Department, I was advised to appeal the decision of a career break application being declined. The terms and conditions for Enable Ireland Sandymount school are clear, however, referring to the specific set of social circumstances around my situation in the lrish housing crisis, and particularly Dublin, originally outlined in the career break application, my partner and I are being evicted from our property on June 30th, 2023. Lt is indeed a very stressful time. With very little options, we need to secure another property and for September, returning to the new academic year in my current position, this is unsure. For this reason, I am requesting leave rather than be forced to resign from my CID contract, for a return at a later period. With careful consideration, could you review my application once more and understand my situation.

June 21st, 2023:

I personally went to the school office to speak with the principal of the school to clarify what letter were they referring to, as I hold a contract of indefinite duration and have been professionally advised not to resign from my position. The principal advised me on this day, that on the previous day June 20th, an interview date was arranged by the school to hire new staff on June 22nd, 2023.

June 27th, 2023:

The school's B.O.M. issued a response to my Appeal. The school denied my appeal application and handed me a letter five minutes before the term ended with no opportunity to respond or discuss. At this point, the B.O.M. expressed that there have been no issues in relation to how I performed my duties as an SNA on a CID contract over my 4-year tenure at the school. The B.O.M. recognised that this was not the solution I was hoping for and that the B.O.M. was willing to engage with me in the future in relation to a new applications process.

July 4th, 2023:

B.O.M. staff representative teacher was first contacted by WhatsApp to assist me with my query in relation to providing me with specific minutes of the meetings where my career break and minutes of the meeting where my appeal was discussed. This person required a few days to access this request.

July 7th, 2023:

B.O.M. staff representative teacher was contacted again by WhatsApp in relation to the meetings minutes between the 1st of September 2022 until the end of the academic year June 2023, where personal data being held by my employer be released for these two specific occasions, as this was advice from Citizen lnformation. This request under the Data Protection Regulation Act, Article 15 be adhered to. The representative was out of the country and needed to access the vpn database. The representative did respond with dates he personally attended, but no minute's information in relation to me were provided by him but did assist me with my query.

July 8th, 2023:

I responded to the staff representative teacher asking for this information to be provided by the B.O.M. This was the last correspondence from the staff representative teacher.

July 10th, 2023:

After consultation with Citizens lnformation, it was instructed to only seek communication with the Chairperson of the Board of Management, the person who was making the decisions. Only a school general office email was being provided and it was deemed as a GDPR Article 15 breach. I requested to the principal, to release a direct email for the B.O.M. Chairperson. A response from the principal on the same day was received stating that Sandymount school B.O.M. was closed and would not be in contact until August 28th,2023. No direct email from the B.O.M. Chairperson was received. I responded with another email on the same day stating, that I was professionally advised and understand that while the school maybe closed for the summer period, that the B.O.M of all schools remain open throughout a twelve-month period. A further request was made for the direct email address for the Chairperson of the Board of Management on this occasion.

July 12th, 2023:

The principal of the school responded with a general Sandymount school office email to contact the Chairperson.

July 19th, 2023:

Contacted B.O.M. Chairperson regarding appeal denial letter received on June 27th June2023., I clarified the exceptional circumstances which were originally outlined in my career break submission letter dated 20.01.23.I clarified once again that my reason for seeking a career break was not to return to my home country which the Chairperson previously stated in previous correspondence, an assumption which was clearly misunderstood, but that my tenancy lease had been terminated after ten years, as of the 30th of June 2023. Prior to submission of my career break letter in February 2023 and the intervening period to date, I have been unable to secure affordable rental accommodation in the current housing crisis in Dublin and I am of no fixed abode. As a result of this, I will continue to seek accommodation in Dublin, but will not be able to confirm my circumstances for the start of the new academic year 2023-2024 at this current point. The school's B.O.M. are clearly aware around my new academic year 2023-2024 return.

July 26th, 2023:

l contacted the Chairperson of the B.O.M. at Sandymount School with this letter:

I have been waiting patiently for your response to my previous letter dated 19.07.23. The situation in relation to my application of leave due to exceptional circumstances which has been previously outlined in earlier correspondence with you.

After seeking professional advice, it is in your interest as Chairperson of the Board of Management of Enable Ireland Sandymount School, to engage in resolving this current issue regarding my application for leave and subsequent appeal letter. I wish to reiterate the professional advice I have received, that The Board of Management of a school is active over a full twelve-month period.

Employees of Enable Ireland Sandymount School are subject to be in the possession of/or obtain a copy of the school Policy document in relation to Leave, Career break and Job share policy. ln line with school policy which you previously informed me of, this policy document has not been furnished to me over a four-year period of employment at the school.

As a current employee at your school, I wish to request a copy of the meeting minutes where my career break was discussed due to my exceptional circumstances, outlined in the original application to the Board of Management at Enable Ireland Sandymount School. This decision should have taken place between February 1st, 2023, and February 24th,2023.

I also wish to request a copy of the meeting minutes where my appeal letter, a recommendation from the Department of Education, Human Resource Department, on the school's decision to deny the appeal around my exceptional circumstances. This decision should have taken place between June 20th, 2023, and June 27rh,2023.

Under 'Data Subject Access Request' under article 15 of the general data protection regulation (GDPR), where I am a 'data subject' in respect of whom you controlled and processed data. I understand that you currently control either alone or with others information personal to me and to which I can be identified. I attached this also to the Principal of the School who had not provided this request or a direct email address for the Chairperson of Board of Management. Only a general Sandymount School Office email has been provided. lt appears that this request has not been dealt with appropriately.

According to the Data Subject Access Request under Article 15 of the General Data Protection Regulation (GDPR), it is suggested that you have one month to comply with this request. Any reason for refusal to disclose the information should be set out in detail and you are reminded that any information personal to me or concerning my privacy rights processed by you or on your behalf - or where you have disclosed this data to third parties - should be referred to and details of such disclosure and processing are also required by this request.

For the avoidance of doubt, upon receipt of this letter you are obliged to disclose the matters specified above. Upon doing so it will be taken that no additional items of personal items exist or will be processed or will be produced at any stage. This is without prejudice to any claim to the Data Protection Commission of your failure to make full disclosure in accordance with Article 15 of the General Data Protection Regulation (GDPR).

At this point, no further response was received from the B.O.M. at Sandymount School.

August 28th, 2023

School reopened. No correspondence from the school. What is my situation? No communication. The school was informed by correspondence on July 19th, 2023, that it was unlikely that my housing situation was secure for an August 28th restart to the new academic year 2023- 2024.

August 25th, 2023:

A complaint was launched with the Workplace relations Committee. This complaint went to service enquires when I believe it should have been submitted by e-complaint form.

August 31st, 2023:

Received a response from W.R.C. acknowledging receipt of complaint. Service enquires suggested seeking independent legal advice or (FLAC) in relation to this matter. On revisiting Citizens lnformation, I was asked for a live complaint number, which I did not possess. Application was invalid and I misunderstood the application process.

October 13th, 2023:

On instruction from Citizens lnformation advice, I launched an official complaint with the Data Protection Commission as the Schools Board of Management failed to engage with my request to release information held by my employer. Under the (GDPR) Article 15 Act 2015, the school had a one-month time frame to respond with the initial request sent to the B.O.M. on July 26th,2023.

October 26th, 2023:

The B.O.M. Chairperson responded after a long period of no communication under Data Protection Compliance. This email and any other attachments were confidential and intended solely for the attention and use of the intended recipient. The minutes of the meetings where my career break and appeal decisions were released, only the initials (F.M.) which I assume were my initials, the name Francisco Martin was visible in these documents, with 99% illegible. I understood, any other business not related to me was removed and confidential, and these documents were redacted. The B.O.M. have suggested they were GDPR compliant throughout however, I required the assistance from the Data Protection Commission to intervene for a response two months outside the suggested time frame.

November 5th, 2023:

B.O.M. requested confirmation of my current address, proof of residence or active email address correspondence (which is currently outside the country) which I complied with throughout this process.

November 7th ,2023:

B.O.M. attached redacted copies by email of relevant meetings where my personal data information was discussed. All matters were confidential. 4 attachments were released.

BOM Agreed report 21 Feb.pdf

BOM 24 July 2023 Agreed Report.pdf - (informed school was not available and closed in this period)

BOM minutes 21, Feb 2O23.pdf

BOM minutes 24 July 2O23.pdf - (informed school was not available and closed in this period)

Note: No report period for actual decision on appeal. (June 20th to June 27th) This decision was handed physically in letter format on June 27th. The school is suggesting this decision was made July 24th,2023.

November 25th, 2023

I contacted the Chairperson of the B.O.M. stating that the personal data information provided in relation to my career break and appeal denial was not legible and does not appear in any of the documents provided. The appeal was on the Dept. of Education's H.R. advice, and I am within my rights to receive these documents under GDPR guidelines. Could they please send these documents again as soon as possible.

November 29th,2023

B.O.M Chairperson contacted me to inform me of their full compliance with GDPR. Stated Governance Manual for Primary Schools 2019-2023. Current policy Leave, Career Break and Job Share policy for the school was reiterated. Dept of Education circular was also provided. All these documents I am fully aware of.

Note: The Dept. of Education has no provision in place for CID staff in this current housing crisis in Dublin city or nationwide.

December l3th 2023:

I informed the school that I will return to my contract of indefinite duration position as I have secured accommodation in Dublin city on January 1st, 2024, and will return when the school reopens on January 8th,2024.

December 18th, 2023:

Received notification from Board of Management at Enable Ireland Sandymount School, that my contract of indefinite duration has been frustrated and the school had no choice but to recruit new applicants as I failed to return to the school for work on August 28th for the start of the new academic year 2023-2024. This was the first communication from the B.O.M in relation to my employment at the school since the school year commenced. The July 26th,2023, email which I sent the schools BO.M., clearly outlined my predicament and informed them, the difficulty I was facing in the current housing situation in the lrish capital and was unable to secure an August 28th,2023, return, but would keep them informed of any change in securing accommodation which I have done on December 13th, 2023. Subsequently, I had to release the property I secured on 01.01.2024 after searching for a six-month period, as I am now dismissed from my Contract of lndefinite Duration. I am currently unemployed in Spain.

December 19th, 2023:

 I launched an e-complaint with WRC.

INTRODUCTION.

 The respondent is a co-educational special school providing a primary and second-level education to students from age 4 - 18 with physical and other complex needs. The respondent currently has 44 pupils enrolled and employs 8 full-time teachers and 21 special needs assistants. Given the complex educational needs of its pupils, the school is particularly reliant on its special needs assistants. There are currently 2 members of staff for every 3 pupils enrolled. The respondent currently has an allocation of 18.25 SNA posts from the Department of Education and Skills.

The complainant entered a contract of employment with the respondent on 1 September 2019.

On 29 January 2023 the complainant sent a letter to the respondent indicating his intention to take a career break as follows:

‘I wish to inform the school that I am requesting a one year career break from my employment with Enable Ireland at Sandymount School. This career break will commence on September 15 2023, Due the unforeseen circumstances, cost of living crisis, accommodation crisis, unable to purchase a property with mortgage approval, unable to rent a property to live and work in Dublin and facing eviction in March 22nd 2023, I have been left with no other option but to relocate for twelve months. I will update Sandymount School in January 2024 for my return to employment with Enable Ireland, for the 2024-2025 academic school term’.

Career breaks are governed by Department of Education and Skills (DES) Circular Letter 22/2012 which is encompassed in the respondent’s Leave, Career Break & Job-Share Policy. The complainant received a copy of the latter document on 11 May 2023. A copy was issued to all staff by email.

The complainant’s application was considered by the respondent on 21 February 2023. The application was not successful. On 22 February 2023 this was communicated to the respondent together with the reasons therefore:

 ‘I wish to inform you that the Board of Management has declined your application for a career break. In line with the school policy for Leave, Career Break, Job share "In dealing with applications, the Board shall have due regard to the capacity of the school to meet its obligations to its pupils and shall therefore apply a reasonable limit to the number of teachers or special needs assistants that may be absent on career break at any one time. For the foreseeable future, this limit is set at one teacher and one SNA. The Board will also take into account the likely availability of a suitably qualified replacement teacher/special needs assistant to take up duty on the applicant's departure.'

The school has encountered difficulty recruiting suitably qualified and experienced staff and must adhere to the above condition. We are happy to consider an application for career break for a future school year.

On 20 June 2023 the complainant sent a letter to the respondent indicating his intention to appeal the decision of the respondent to refuse his application for a career break:

‘Following advice of the Department of Education, I was advised to appeal the decision of a career break application being declined. The terms and conditions for Enable Ireland Sandymount school are clear, however, referring to the specific set of social circumstances around the Irish housing crisis and in particular, Dublin, originally outlined in the career break application, my partner and I are being evicted from our property on June 30th, 2023. It is indeed a very stressful time. With very little options, we need to secure another property and for September, returning to the new academic year in is my current position, this is unsure. For this my reason, I am requesting leave rather than be forced to resign from my CID contract, for a return at a later period.

With careful consideration, could you review my application once more and understand my situation.

On 27 June 2023 the respondent replied as follows:

‘Thank you for your letter in which you wish to appeal the Board's decision in relation to your application for a career break because you are moving back to Spain.

As you say in your letter, the terms and conditions relating to career breaks for staff are clearly set out in the Department of Education circular to schools and as I confirmed when I met you earlier this month, the Board has made its decisions in relation to all applications received from staff within the provisions of the circular. This means that one teacher and one SNA can be granted a career break each academic year because the Board are seeking to ensure stability in terms of the capacity to meet the educational and complex care needs of our students. For the 2023/24 academic year, these career breaks have been granted and consequently a number of additional applications, including yours, have been turned down.

I acknowledge that the reason you sought the career break is because you have to move out of your current accommodation at the end of the month and that the option you are now taking is to move back to Spain. At our meeting, you indicated that this move might not be permanent depending on how things work out over the coming year and that this is why you are seeking the career break. As I said at our meeting, there have been no issues in relation to how you have performed your duties as an SNA in the school over the last 4 years and should you return to Ireland and find accommodation in the general surrounding area or where you consider you could commute to Dublin 4, we would be very happy if you would let us know your contact details so that we could in turn let you know to apply for any future vacancies that might arise.

I recognise that this is not the solution that you are looking for but I hope that you can see that the Board is willing to engage with you and inform you of the applications process for SNA vacancies in the school, should you return to Ireland.

On 19 July 2023 the complainant emailed the respondent indicating that his desire for a career break arose from his inability to find housing as outlined by him previously and not a desire to relocate to Spain. On 26 July 2023 a further email issued from the complainant to the respondent indicating that the complainant had taken ‘professional advice’. The complainant alleged therein that he did not receive a copy of the respondent’s policy document in relation to, inter alia, career breaks. The complainant sought further documentation by way of a DSAR. On 21 August 2023, a response issued from the respondent in the following terms:

Dear Francisco

First of all, I wish to apologise for the delay in reply to your queries, which follow on from my letter to you of 27th June.

In your subsequent response dated 19th July, you state that your request for a career a break was submitted not because of a move to Spain but because your lease for your accommodation was terminated as of 30th June and that you were unable to obtain suitable accommodation. While it is the case that your lease was terminated, your follow on decision, arising from this, was to move to Spain and it is the fact that you were subsequently unable to fulfil your SNA duties arising from this decision. It was in this context that I referred to your move to Spain in my response to you.

My understanding is that you are seeking a letter from the Principal, stating that you have lost your employment in Sandymount School. In this regard, it is not possible to furnish you with such a letter as the situation that has arisen, i.e. your inability to resume your position in the school in September and subsequent status as being unemployed, is not down to any action taken by the school as your employer.

In your subsequent email dated 27th July, you state that the career break document was not furnished to you. The leave, career break and job share policy was emailed to all staff on 11th of May 2023 and you were required to sign the sheet in the school office by 19th of May 2023 to say that you read the policy and understood it as part of the 72 additional hours for SNAs.

In this context, when the decision was made on all applications for career breaks received, the following was conveyed to all unsuccessful applicants in the decision letter dated 22nd February, including you, as one of the unsuccessful applicants:

In line with the school policy for Leave, Career Break, Job share " In dealing with applications, the Board shall have due regard to the capacity of the school to meet its obligations to its pupils and shall therefore apply a reasonable limit to the number of teachers or special needs assistants that may be absent on career break at any one time. For the foreseeable future, this limit is set at one teacher and one SNA. The Board will also take into account the likely availability of a suitably qualified replacement teacher/special needs assistant to take up duty on the applicant's departure."

You have requested a copy of the  minutes in which the decision was made. In this regard, wish to inform you that names of applicants are not generally discussed as many of the Board Members might know the individual candidates and the decisions made on career breaks are taken in line with the above policy. The minutes for publication are displayed on the school website. As have said In my previous correspondence with you, there is no issue with how you performed your duties and should you return to Ireland and find accommodation, which would permit you to work again in the Dublin 4 area, it would be open to you to apply for any SNA vacancy that might arise into the future.

The respondent school year began on Friday 25 August 2023. The complainant did not attend for work. Owing to the particular needs of its pupils, the respondent was left with no option but to source another SNA.

On 7 November 2023, documents were provided to the complainant pursuant to his previous DSAR. On 25 November 2023 the complainant replied by way of email indicating that documents were missing. On 14 December 2023, the detailed response was prepared by the respondent.

On Wednesday 13 December 2023, the complainant emailed the respondent indicating that he had sourced accommodation in Dublin from 1 January 2024 and that he would return to his position within the respondent on 8 January 2024. The complainant sent a further email on 15 December 2024 in that regard. On 18 December 2023, the respondent replied as follows:

Dear Francisco

Thank you for your emails dated 13 and 15 December 2023.

As you are aware you failed to return to work in September 2023 after the summer break. The school is not in a position to keep your SNA position open for a period of time. SNAs are critical to the support and education of the children in the school's care. As you failed to return to work, your contract of employment was frustrated, and the school had no choice but to fill your role. The school currently has no vacancies at present, however, should one arise they will be advertised.

The complainant replied on 21 December 2023 in the following terms:

Following further consultation with Citizens Information and Workplace Relations Committee, I was advised to inform the B.O.M. at Enable Ireland Sandymount School of my endeavour to be treated fairly in my workplace. I will not be accepting your response on December 18th, 2023. WRC have heard my dispute and deemed the wording that you used in your correspondence as an unfair dismissal and have accepted an investigation which you will be informed of in due course. The correspondence that you furnished on December 1 8th regarding my CID contract should have been decided on August 28th and communicated at that point. No communication regarding my CID contact was received until December 18th, 2023, when informed and updated you of my return on January 8th, 2024. Contrary to the fact that you were clearly informed on July 19th, 2023, of my return situation for the new academic year 2023-2024. The B.O.M. choose not to respond in this emergency situation which was deemed unacceptable by WRC.

The complainant was paid up to the end of the school year 31 August 2023.

THE COMPLAINANT’S CONTRACT OF EMPLOYMENT WAS FRUSTRATED

It is submitted that by virtue of his relocation to Spain and subsequent non-attendance at work, the complainant’s contract of employment with the respondent became frustrated. As such, the Unfair Dismissals Act does not apply in the present case. In Boyle v Marathon Petroleum [1995] ELR 200, the EAT dismissed the complainant’s case under the Unfair Dismissals Act 1997 on the basis that his contract had been frustrated. In the course of their decision, the Tribunal remarked as follows:

The Tribunal adopts the passage from the judgement of Phillips J in Egg Stores (Stamford Hill) Ltd v Lebovichi [1977] ICR 260 at 265 which was adopted by Sheldon J in the English Court of Appeal in the case of Notcutt v Universal Equipment Co. (London) Ltd [1986] 3 All ER 582:

It is possible to divide into two kinds the events relied upon as bringing about the frustration of a short-term periodic contract of employment. There may be an event (e.g. a crippling accident) so dramatic and shattering that everyone concerned will realise immediately that to all intents and purposes the contract must be regarded as at an end. Or there may be an event, such as illness or accident, the course and outcome of which is uncertain. It may be a long process before one is able to say whether the event is such as to bring about the frustration of the contract. But there will have been frustration of the contract, even though at the time of the event the outcome was uncertain, if the time arrives when, looking back, one can say that at some point (even if it is not possible to say precisely when) matters had gone on so long, and the prospects for the future were so poor, that it was no longer practical to regard the contract as still subsisting.

Applying this statement to the present case the Tribunal finds that the claimant's contract of employment was frustrated at a date earlier than when he informed the respondent that he was fit to return to work and his purported dismissal by the respondent.

The doctrine of frustration automatically terminates the contract of employment and there is therefore no onus on the employer to inform its employee that his contract of employment is at an end. (Notcutt v Universal Equipment Co. (London) Ltd [1986] 3 All ER 582 applied.)

Crucially, where a contract of employment is frustrated, there is no onus on an employer to notify an employee that his or her contract of employment is at an end. The frustrating event automatically terminates the contract. In Zuphen v Kelly Technical Services [2000] 11 ELR 227, Murphy J. explained the basis of the doctrine of frustration as follows:

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.” …

“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.”

Meenan, Employment Law (2nd Ed, 2023), outlines a set of factors which may be taken into account in deciding whether a contract has been frustrated (at para 19-11):

The tribunal has also stated that the doctrine of frustration automatically terminates the contract of employment and there is therefore no onus on the employer to inform its employee that his contract of employment is at an end. The Employment Appeals Tribunal has considered that among the matters to be taken into account in deciding as to whether a contract is frustrated are:

(i)               the length of the previous employment;

(ii)              how long it has been expected that the employment would last;

(iii)            the nature of the job;

(iv)            the nature, length and effect of the illness or disabling event;

(v)              the need of the employer for the work to be done;

(vi)            whether wages have continued to be paid;

(vii)           the action of the employer in relation to the employment;

(viii)          whether consideration was given to retaining the employee on the books if not in employment;

(ix)             whether the employer discussed with the employee and his trade union the employee’s problems and prospects;

(x)              whether adequate medical investigation was carried out (e.g., employers should ask their own or their employee’s doctor for reports to establish the real medical facts and if there is conflicting medical evidence, to seek an independent source); and

(xi)             whether in all the circumstances a reasonable employer could be expected to wait any longer.

The above test was recently endorsed by the WRC in (albeit in the entirely unrelated context of a prison sentence) in An Electrician v A Transport Provider ADJ-00007578.

SUBMISSIONS OF THE RESPONDENT

In light of the above, the respondent submits as follows:

(i)               The complainant was not entitled as of right to a career break. Career breaks within the complainant’s sector are governed DES Circular Letter 22/2012 which is encompassed in the respondent’s Leave, Career Break & Job-Share Policy. These documents were received by the complainant and applied by the respondent in instant case 27 June 2023.

(ii)              The complainant’s application for a career break was unsuccessful. As such the complainant relocated to Spain and did not present for work from 25 August 2023.

(iii)             It is respectfully submitted that this relocation, seemingly related to an inability to secure accommodation amounted to a frustrating event.

(iv)            It was impossible for the contract between the complainant and respondent to be performed whilst the complainant was not present in the jurisdiction and in the respondent school.

(v)              The work for which the complainant was contracted was not capable of being performed remotely.

(vi)            At such time when the complainant informed the respondent that he had secured accommodation on 15 December 2023, his contract had been at an end for some months.

CONCLUSION

The complainant is not entitled to the relief sought nor any relief.

The respondent reserves the right to rely on further oral and or written submissions at the hearing of this matter.

The complainant has mentioned GDPR (General Data Protection Regulations) in his complaint and has alleged that the respondent has breached these Regulations. The Workplace Relations Commission cannot investigate complaints on this subject. Any complaints in relation to an alleged breach of the Regulations should be made to the Office of the Data Protection Commissioner.

In the instant complaint the respondent has suggested that the contract has been frustrated by the complainant’s relocation to Spain and his subsequent failure to attend work. What does ‘frustration of contract actually mean?

In Redmond on Dismissal Law (Third Edition – Desmond Ryan – Bloomsbury Publishing) ‘frustration’ is explained as follows:

A contract of employment may end as a result of the legal doctrine of frustration, that is , where performance of the employee’s duties in the future would become radically different from that undertaken by him. Frustration mainly arises in the context of illness or incapacity. A party who is at fault cannot rely on frustration as to their own act. The imposition of a custodial sentence on an employee is capable in law of frustrating a contract of employment: FC Shepherd & Co Ltd v Jerrom, but the party asserting frustration must prove that the frustrating event was not caused by any fault or default on his part.

The representative for the respondent has included the following in his submission:

Crucially, where a contract of employment is frustrated, there is no onus on an employer to notify an employee that his or her contract of employment is at an end. The frustrating event automatically terminates the contract. In Zuphen v Kelly Technical Services [2000] 11 ELR 227, Murphy J. explained the basis of the doctrine of frustration as follows:

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.” …

“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.”

I find it impossible to disagree with the line of thought from the respondent representative.

When the complainant decided that he would go back to Spain I believe it was this act that frustrated the contract.

The complainant has raised the issue of the Board of Management’s refusal to approve a career break that he applied for. Career Breaks are not a contractual entitlement.

The Department of Education and Skills have issued a Circular Letter 22/2012. Point 2.2 of this Circular clearly states:

‘In drawing up this policy, 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’.

In conclusion I find that no dismissal has taken place and I have no alternative but to find the complaint as presented under the Unfair Dismissals Act, 1977 is not well-founded.

In conclusion I find that no dismissal has taken place and I have no alternative but to find the complaint as presented under the Unfair Dismissals Act, 1977 is not well-founded.

Unfair Dismissal Act 1977; Frustration of contract.