Complainant

Respondent

Anonymised Parties

A Worker

A Company

Representatives

Self-represented

Maurice Osborne BL, instructed by Matheson LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00067887-001

04/12/2024

The complainant was employed by the respondent from 7th July 2022 up to 17th April 2024 when his employment was terminated. He was earning €2,916.67 per month. He claims that he was unfairly dismissed. The respondent company denies the claim in full. The respondent company submitted there was no dismissal and the employment terminated due to frustration of contract.

Preliminary Issues

Summary of Complainant’s Evidence

The complainant said he was incarcerated in early 2024 and expected to be released within a short timeframe. He was in communication with the respondent through a contact person. He said there was reasonable cause to extend the 6-month timeframe to submit the WRC Complaint Form due to his incarceration. He said he was initially in a closed prison and there were delays with post. He had no email access and was dependent on communications through a contact person. He was only allowed five-minute phone calls. When he was moved to an open prison, he had insufficient internet access to make his complaint to the WRC. He said he did not use his contact person in case of errors in filing the complaint. He could not afford legal advice, and he prioritised his contact time as he was dealing with family issues.

He outlined the employment issues he encountered towards the end of 2023 in detail. This resulted in correspondence on an exit package. No agreement was reached on an exit package with the company.   

Under cross-examination by Mr Osborne, he was asked why the WRC Form was submitted out of time despite his legal qualifications. He replied that he was not pleading ignorance of the law and it was up to the Adjudication Officer to decide whether reasonable cause existed.

When asked about his contact person making the WRC complaint on his behalf, he replied that he did not know whether she was capable of this. He was asked about the legal advice that his contact person referred to in correspondence with the company. He replied that he considered taking legal advice although later realised he could not afford it.  

He was asked about communications from his own email address in late June 2024 and why he could not submit a WRC complaint then. He replied that he was not in a good mental state as he was under enormous pressure. He clarified that he had a few days of release towards the end of 2024.

He was asked how he could apply for a job with the respondent from prison and still not submit a WRC Complaint Form. He replied that his contact person was able to assist with the job application.

Substantive Case

The complainant gave the below testimony on the substantive issue at the hearing on 17th November 2025 and also on 9th February 2026-

He outlined the nature of the work he carried out for the company. Even though his role was client facing, he was assigned audit work which needed to be done. He raised concerns about doing this audit work as he felt it was beyond his competencies. He requested that the work be assigned elsewhere. This resulted in tension with his manager although at a later meeting they shook hands. He said that he was thanked for the work carried out and received vouchers. He said that towards the end of 2023, he felt he was being reprimanded due to staff changes and that the company did not welcome his feedback on certain issues. There was a performance review and then an investigation. Around this time, he also made a complaint of bullying against his line manager. These processes were not completed. Pending these issues, there was communication with the company on an exit package. No agreement was reached on exit terms.

He outlined details of his court appearance in early 2024. He said due to his guilty plea he expected a suspended sentence. He said that due to the ongoing workplace issues, the company used his custodial sentence as a reason to terminate his employment. He said he was not afforded fair procedures when the company were dealing with these workplace issues.

He concluded his testimony by outlining his applications to find other jobs.

Under cross-examination, he was asked why he did not inform his employer of the charges he faced and his pending court appearance. He replied that he was sick with worry and that nothing was decided at that stage on his guilt or otherwise.

He was asked about the effect of his long-term absence on the work team. He did not dispute that his absence would have had an impact although he was aware of how other work was re-assigned during other long-term absences.

He was asked whether it was reasonable for an employer to wait given the length of sentence and that he had not made any relevant representations from January 2024 to April 2024. He replied that there was a delay in receiving and sending post from prison. He said the company made no representations on his sentence or likely remission.

He was questioned further on the timeline of receiving correspondence from the company, and his direct and indirect responses back to his employer. He replied that he was not afforded reasonable time and that his post could have been kept open particularly as he moved to an open prison in May 2024.

He was asked how he mitigated his loss. He replied that he applied for lots of jobs although he felt hampered by earlier media reports on his sentence.

Closing Submission

The complainant outlined that a frustration of contact meant that the employer had to have taken steps and acted reasonably before terminating his employment. He said no enquiries were made by his employer on his prospects for remission. He said his absence should not have been too much of an inconvenience as other staff were absent for sustained periods. He said he had insufficient time to respond from prison before his employment was terminated.        

Preliminary Issues

Mr. Osborne submitted that the complainant should have been able to submit a complaint within six months despite his incarceration. He was legally qualified and he communicated through his own personal email in June 2024. He submitted that there was no medical evidence of incapacity. He referred to O’Keeffe v. LMETB, ADJ-00031458, where an incarcerated complainant was not granted an extension of time. He further submitted that the WRC Complaint Form did not have the correct legal entity of the respondent company.

Summary of Head of Human Resource’s Evidence

The witness said that she was 19 years with the company and her role covered the UK and Ireland. She said that the Employee Relations Manager involved in the interactions with the complainant consulted with her from an early stage and she signed off on and approved correspondence. She became aware of the custodial sentence in mid-January 2024 and then she received an email from a contact person. She outlined the nature of the complainant’s role as interacting with clients and how the absence would impact on the team. She said at that time there was a recruitment freeze. She said the contract was frustrated in her view due to the potential period of absence. Although the complainant was given an opportunity to respond over a three-month consultation period, he made no representations on the frustration of contract issue. She said that all factors were considered before the employment was terminated and the complainant only informed them of his move to an open prison after the decision on termination was made.

Under cross-examination, the witness was asked about other long-term staff absences and how these were covered. She replied that other long-term absences were normally protected absences such as maternity leave. She was questioned on when the decision was made on termination. She replied that this was not made until April 2024.

Summary of Business Partner Manager’s Evidence

The witness said she was 15 years with the company and had responsibility for 5,000 staff. She became aware of the issue when a recruiter emailed her a media article. She subsequently received an email from the contact person. She said that as no representations were received on fulfilling the role, the company could not keep the post open. She was aware the complainant applied for another role within the company in December 2024. She said this was inappropriate in her view as a difficulty would later arise due to the prison sentence.

Under cross-examination, she was asked when she became aware of the custodial sentence. She clarified that this was mid-January 2024.

Summary of Manager’s Evidence

The witness outlined his role and interactions with the complainant. He said the absence was a real concern due to the direct interaction with clients and the recruitment freeze. He said work was re-assigned/outsourced or moved to other locations.

He was cross-examined on the complainant’s performance. He replied that he was not the direct supervisor of the complainant.

Closing Submission

Mr Osborne submitted that the facts of the case were not in dispute in terms of the serious offence and follow-on custodial sentence. The company only became aware of the issue through third parties and media reports. Although his contact person later communicated that the sentence could be just 10 months, this was only speculation and the company could only rely on the facts. Ultimately, the sentence still ended up being for a lengthy period. The company offered reasonable opportunities to make representations by extending the timeline. They received no representations or timeline on his availability for work. Mr Osborne referred to caselaw and particularly the company allowing for representations to be made prior to deciding on the frustration of contract.

He concluded that without prejudice to the respondent’s position that the contract was frustrated, that no compensation of lost earnings could be considered during the time of incarceration.   

Findings on Preliminary Issues

The Law

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

Reasonable Cause

In Cementation Skanska v. Carroll DWT0338, the Labour Court commented on the test of “reasonable cause”. It is for the complainant to explain the delay, and it must make sense. It is an objective standard on the circumstances of the complainant at the material time. Without the circumstances relied upon, the complaint would have been submitted on time. The length of the delay should be considered along with any prejudice to the respondent due to the delay.

The complainant argued that he was incarcerated without access to facilities to submit a WRC complaint. He gave testimony that he could not rely on his contact person to submit the details correctly and could not afford legal advice. Although he had access to facilities when moved to an open prison, these were restricted and he had other priority legal issues ongoing. The complaint was submitted just over two months outside the 6-month timeframe.

At Mr Osborne’ s request, I have reviewed the O’Keeffe case. The circumstances in O’Keeffe are distinguished in that the complaint was submitted over a year after the termination.

Having regard to Cementation Skanska, I am satisfied that the complainant has put forward reasonable cause due to the insufficient facilities nor the back-up to submit a complaint from prison. He gave testimony that he had limited facilities in the open prison and had other priorities. I note that he submitted the complaint just two months outside of time and the respondent was not prejudiced by the delay. I accept the complainant’s testimony that he had other priorities when he had use of facilities and that he could not afford legal advice.

For the reasons outlined, I decide that reasonable cause exist to extend the timeline.

Incorrect Legal Entity

I am satisfied that the WRC Complaint Form contains an adequate description of the respondent. The complainant has named a shortened version of the company name. I decide that a minor addition can be made to amend the name to the full legal entity due to the following-

·       The WRC Complaint Form is a non-statutory form, and the WRC’s procedures should follow the ordinary courts and amend the legal entity when appropriate.

·       The correct respondent has submitted to the jurisdiction of the WRC and is not prejudiced in any way.

·       The employment contract itself and policy documents are headed with the shortened name, and the correspondence with the complainant has several variations of the respondent’s legal name.

·       As the complainant is a lay litigant who submitted the complaint form from prison, it would be unreasonable to prevent him proceeding with his complaint on a minor technicality.

For the reasons outlined, I decide that a minor addition can be made to name the full legal entity of the respondent company.

As I have decided positively on jurisdiction, I will proceed to hear the substantive case.

Frustration Test & Case Law

There was conflicting evidence on whether there was a dismissal. The respondent position is that the contract was frustrated. As frustration of contract does not arise often, I have reviewed the case law referenced. The respondent has also included reference to the test as per Ryan’s Redmond on Dismissal textbook-

“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.”

Clark’s Contract Law in Ireland (9th Edition 20222) states-

“Because the doctrine of frustration operates automatically, without intention to the reference of the parties, Irish EAT authority holds that even if the employee becomes available for work shortly after the employer asserts that the contract has been frustrated by virtue of a prison sentence, frustration will still be upheld.” Paragraph 18-106.

Zuphen v. Kelly Technical Services (2000) 11 ELR 227 describes frustration of contract as-

“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.”

In Donegal County Council v. Langan UD143/89, the importance of consulting with the employee was highlighted, presumably as the original employment contract was agreed by both parties. Although frustration can often involve an absence due to sickness as per Langan, other factors should be considered such as length of employment, nature of the job, and potential length of absence.

Finding

Frustration of Contract

Applying the facts of this case to the doctrine of frustration and the caselaw, there is no question that the supervening event was unexpected. The complainant gave testimony that he did not expect to receive a lengthy custodial sentence. The respondent witnesses gave testimony that they realised an employee had been incarcerated through third party contacts and media reporting.

It is not contested that the unexpected event was instigated by the respondent. The complainant accepted that the custodial sentence arose from his own actions.

The custodial sentence began in early January 2024, and the decision taken by the respondent that the contract was frustrated was made in mid-April 2024. This would appear to have given sufficient time for the complainant to respond and make representations. For his part, the complainant argued due to the time lag with post that the consultation period was inadequate. The correspondence directly from the complainant to respondent in March 2024 indicated a 6 to 12-week delay, and in April 2024 his contact person referred to an 8-week delay. Given the correspondence between the parties over this period, and the extended time allowed by the respondent, I am satisfied that there was adequate time for the complainant to make representations on frustration of contract. In line with Langan, I am satisfied that the complainant was given adequate time to make representations despite the difficulties with communicating from prison. The respondent in this instance, if relying on frustration of contract, could not delay indefinitely.

The nature of the work was a client interfacing role, and the respondent testimony outlined the challenges due to the complainant’s absence, particularly as there was a recruitment freeze. At the time of deciding on frustration of contract, the respondent’s knowledge was the absence was to be at least two years. Although the complainant’s contact person had speculated a release within 10-months, there was no sound basis for this and the complainant provided no further detail until May 2024, after the decision was made in April 2024.

The complainant was employed from 7th July 2022, so he was a relatively new employee. The length of employment in Langan may have referred to more a more serious assessment of future attendance based on lengthy past service. If the staff member had long prior service and required a period of absence, it suggests an employer should factor this in prior to declaring frustration of contract. In this case, the complainant could not rely on previous long term service to be factored into keeping the job open for him.

In summary, I am satisfied that there was a frustration of contract due to the following circumstances-

·       It was an unexpected event.

·       The respondent who relied on frustration of contract had no part in the unexpected event.

·       Representations were sought from the complainant with no substantive response.

·       Due to the nature of the role, attendance was required, and the absence was known to be long-term.

·       As the complainant was employed from 7th July 2022, he was a relatively new employee with no long-term service to be factored in.

Disciplinary/Bullying Complaint

The complainant referenced the above issues on the WRC Complaint Form, in correspondence, and in testimony. It is not contested that there was an investigation in December 2023 which potentially could have led to a disciplinary process. At this time, the complainant also made allegations of being bullied in the workplace. Again, there is no conflict that his complaint was made.

‘Without prejudice’ communications on an exit package were also underway. There is no conflict on this either, although the respondent expected these communications to be private and not capable of being relied upon. There is no statute in Irish law to protect the privacy of these exit communications. Therefore, I am required to inquire into these, particularly as they occurred within a proximity of the custodial sentence, and are relied upon by the complainant.

He contends they were a factor in the later termination of his employment under the guise of ‘frustration of contract’. I have reviewed the emails on a potential exit package. It is noted that the complainant did not object to the notion that he exit the company. A two-way negotiation was in train which may have benefitted both parties considering the pending disciplinary process and bullying complaint. Although the complainant relies on an agenda by management to exit him from the company, the subsequent custodial sentence was separate to the earlier issues. Given the length of sentence, regardless of how an employer rated an employee, a reasonable employer would have grounds to consider a frustration of contract had taken place.

Although the respondent’s case relies solely on the events from early January 2024 to support a decision on frustration of contract, there was an onus to examine these issues as highlighted by the complainant. Having enquired into these, I am satisfied that events prior to early January 2024 were unrelated to the grounds relied upon that a frustration of contract had taken place.

For the reasons outlined, I decide that there was no dismissal of the complainant as the employment contracted was terminated arising from a frustration of contract.

I decide that there was no dismissal of the complainant as the employment contracted was terminated arising from a frustration of contract.

Unfair Dismissal, Frustration of Contract