The Employment appeals Tribunal recently considered the issue of frustration of contract of employment in the case of The Personal Representative in the Estate of Piotr Kobialka (Deceased) v Shannon Formwork Limited RP2562/2011, UD1985/2011
The claimant had been employed by the respondent construction company from 2000 and was absent on sick leave from June 2008 but continued to submit regular medical certificates for his absence. The respondent company gave evidence that the claimant refused to avail of operative intervention to improve his medical problems in 2008 but subsequently availed of same in 2009. On 16th November 2010 a letter from social welfare confirmed that the claimant was capable of working and in January 2011 the company doctor certified the claimant as fit to return to work. It was subsequently determined that the claimant needed to be assessed by an occupational therapist to determine if he was physically fit to carry out his employment duties. The respondent requested that the claimant attend the occupational therapist however the claimant refused. By letter dated 15th February 2011 the respondent stated “….you must also demonstrate that there is no medical impediment to the resumption of your former employment. This will require confirmation from our delegated occupational therapist or a specialist of your choosing.…”.
The Tribunal noted that the claimant’s contract of employment provided that “the company reserves the right to have you examined by a medical practitioner at any time“. The claimant did not attend with an occupational therapist or any specialist of his choosing and did not produce any independent medical evidence as to his fitness to return to his specific employment.
The Tribunal also heard recordings of telephone conversations between the claimant and the respondent whereby the claimant asked about work. The Tribunal noted “It was open to the claimant to attend with the specialist in order to satisfy the respondent that he was fit to return to work and for reasons we will never know he refused/neglected to do so“.
The Tribunal concluded that “the claimant by refusing/neglecting to produce specialist evidence or to allow specialist evidence to be produced frustrated his contract of employment” and accordingly the claimant’s claims under the Unfair Dismissal Act 1977 (as amended) and the Redundancy Payments Act 1967 (as amended) failed and were dismissed.