Gallagher v Eircom Ltd

• Jurisdiction: Ireland
• Judgment Date: 24 August 2005
• Judgment citation (vLex): [2005] 8 JIEC 2401
• Date: 24 August 2005
• Court: Employment Appeal Tribunal (Ireland)

Employment Appeals Tribunal

EAT: Gallagher v Eircom Limited

Abstract:

Employment law - EAT - Unfair dismissal - Frustration of contract of employment - Imprisonment - Whether doctrine of frustration operated independently of will of parties - Unfair Dismissals Acts 1977 to 2001

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:	CASE NO.
Gerard Gallagher Cloonaghlawn, Ballinfull, Co. Sligo	UD955/2004

against

Eircom Limited

114 Saint Stephen's Green West

Dublin 2

under

UNFAIR DISMISSALS ACTS, 1977 TO 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:	Ms. C. Egan BL
Members:	Mr. D. Morrison
	Mr. P. Clarke

heard this claim in Sligo on 2 June 2005

Facts The claimant received an eight year prison sentence in 1998. In 2004 the respondent purported to terminate the claimant's contract seven days before his release. The respondent submitted that the claimant was been dismissed but rather that his contract of employment was terminated automatically by operation of law when he received the eight year prison sentence.

Held by the Tribunal in dismissing the claimant's claim that the claimant's contract of employment terminated by operation of law when it was frustrated by a custodial sentence. The doctrine of frustration operated independently of the will of the parties.

1 The determination of the Tribunal was as follows:

2 Counsel for the respondent submitted that the claimant had not been dismissed but rather that the claimant's contract had been frustrated in that his employment was terminated by operation of law when be received an eight-year prison sentence in 1998. Asked why the respondent waited till 1 March 2004 to dismiss the claimant, counsel replied that, while frustration automatically terminates employment and leaves no onus on an employer, the respondent had very elaborate grievance and disciplinary procedures which bad been agreed with unions. It was submitted that, although the respondent went through these procedures, the claimant's employment contract was automatically brought to an end when be was sent to prison.

3 The claimant's representative referred the Tribunal to the respondent's notice of appearance where it said that the claimant had been on unauthorised absence from duty from 5 August 1998 and that on 29 February 2004 the respondent had decided to terminate the claimant's employment with effect from 1 March 2004. The...