TOPIC 3: Case Law

Question 1

O’Reilly v. Minister for Industry and Commerce [1997] ELR 48

Answer 1

Terms of dismissal

The case involves a civil servant who was led to believe that his retirement was compulsory, resulting in his resignation.
The court examined whether the misleading interview, conducted by the plaintiff’s superior, deprived the plaintiff of a choice in his retirement decision and concludes that the defendant cannot rely on the resulting resignation letter.
Damages are awarded to the plaintiff.

Question 2

Casey v Dunnes Stores [2003] ELR 313

Answer 2

Definition of a dismissal
“some act brought about by one party contrary to the wishes of the other party which renders the contract of employment to cease to exist and all the duties and obligations thereunder are no longer binding and as such the employment relationship has plainly come to an end.”

Question 3

Futty v. Brekkes (D & D) Ltd [1974] IRLR 130

Answer 3

Determining dismissal - language
“If you do not like the job, f*ck off’
not a dismissal in the circumstances.

Question 4

Lordan (UD 1274/09)

Answer 4

Determining dismissal - language
“what the fck did you say to the garda? park up the truck, fck off home and stay there” - reasonable to construe words as a dismissal
Failure by the employer to make any contact with the claimant the following day or days when he did not report for work - clear that this was dismissal

Question 5

Walsh v Dublin Health Board 98 ILTR 82-

Answer 5

permanent contracts
“permanent” does not necessarily equate to “a contract for life”- meanings range from a distinction with “casual or temporary” contracts to a situation where the employee could not be dismissed before retirement age other than for misconduct.

Question 6

Grehan v North Eastern Health Board [1989] IR 422

Answer 6

Permanent contracts
Costello J indicated that there are circumstances in which a term providing for termination on reasonable notice will not be implied in a contract of service where this is not justified having regard to the terms of the contract as a whole.

Question 7

Sheehy v Ryan [2008]

Answer 7

Permanent contracts
permanent, pensionable’ job = job until retirement (65?)

Question 8

Walsh v Dublin Health Board 98 ILTR 82

Answer 8

Permanent contracts
permanent does not equal job for life

Question 9

Cahill v DCU [2007] IEHC 20

Answer 9

Permanent contracts
Plaintiff occupied a post of Associate Professor at DCU. After informing the DCU President that there was a “high probability” that he would be moving to another university, he received a letter from DCU giving him three months’ notice of termination of his contract of employment. The dismissal was due to take effect in September 2006. Clarke J ruled that the dismissal was contrary to the provisions of the Universities Act 1997.
One of the key matters at issue concerned the meaning of “tenure”.
Plaintiff argued that when used in the educational (and in particular, the university) context, conveyed a level of permanence, which would only permit the person concerned to be removed from office for stated reasons involving misconduct or incapacity
Ultimately, the case was not decided on the grounds of what constituted “tenure” Clarke J noted that of s 14 of the 1997 Act, which provides for academic freedom and requires a university, in performing its functions, to preserve and promote the traditional principles of academic freedom in the conduct of its internal and external affairs, required the court in construing any provision of the Act, to favour a construction which would have the effect of the promotion of the principles of academic freedom.

Question 10

Carvill v Irish Industrial Bank Ltd [1968] IR 325

Answer 10

Dismissal - no notice

expressed the view that the grounds relied on to justify a dismissal without notice of an employee must be actions or omissions by the employee which are inconsistent with the performance of the express or implied terms of its contract of service.

“The incompetence relied on to justify summary dismissal must, however, be judged by reasonable standards, and the employer must establish that an error was caused by incompetence and not by mistaken judgement or by a human error.”

“…high degree of incompetence and this must be judged by the standards which prevail among people in Ireland who are engaged in business.”

Question 11

Glover v BLN [1973]

Answer 11

Dismissal - no notice

‘It is impossible to define the misconduct which justifies immediate dismissal…There is no fixed rule of law defining the degree of misconduct which will justify dismissal…’

Company director - many issues arose
Conflict of interest - he had shares in a company - no misconduct
Employees made work on private cars - misconduct (not serious)
Employees made work on private house - serious misconduct

Question 12

Condor v. Barron Knights Ltd [1966] 1 WLR 87

Answer 12

Frustration & sickness

A 16 year old agreed by contract to play the drums for the defendant band for 7 nights per week for 5 years. The claimant suffered a mental breakdown and was told by his doctor that he should not perform more than 4 nights per week. The band dismissed him. He brought a claim for wrongful dismissal.

Held:

The claimant’s action was unsuccessful as his medical condition made it impossible for him to perform his contractual obligations and the contract was thus frustrated.

Question 13

Shepherd v. Jerrom [1986] ICR 802

Answer 13

Frustration & imprisonment

This case concerns a builder company’s appeal against a decision to award maximum compensation to an apprentice who was unfairly dismissed following his release from Borstal training. The court had to determine when the company accepted the apprentice’s repudiation of his training agreement and whether the apprentice contributed to his constructive dismissal.

Question 14

Herman v. Owners of the S.S. Vica[1942] IR 305 at 321:

Answer 14

“[f]rustration depends on the terms of the contract and the surrounding circumstances of each case, as some kinds of impossibility may not discharge the contract at all”.

Question 15

Zuphen v. Kelly Technical Services (Irl) Ltd [2000] ELR 277

Answer 15

The event which frustrates the contract must be unexpected & not within parties’ contemplation

Question 16

Byrne v. Limerick S.S. Co. Ltd. [1946] IR 138

Answer 16

Illness & frustration
Where the contract of a crew-member was discharged because of the refusal of a permit by British Permit Office and not frustration; and further regarding a provision in the contract empowering the Master to discharge any crew-member. CONSEQUENTIAL DAMAGES. The employer was liable to pay compensation of ‘one month’s wages’ but the rubber-stamp clause was inconsistent with the Merchant Shipping Act, 1894 and ‘void’ under Section 156 of the Act. Danger money formed part of the wages and was properly included in the amount awarded for compensation; however, the allowance for maintenance was not included in the term “emoluments.”

Question 17

Taylor v. Caldwell [1863]

Answer 17

Destruction of the workplace

Question 18

Poussard v. Spiers(1876).

Answer 18

Employee’s illness

Facts
Employee fell ill just before the start of the opera and could not sing for the first three days. Once the Claimant was well again, she wanted to take up her position in the performance but this was refused by the Defendant.

It was held that failure to turn up did amount to a breach of a condition of the contract as this went to its very root and that Spiers were therefore free to rescind the contract.

Question 19

Bliss v. South East Thames Regional HA [1987] ICR 700

Answer 19

Repudiation
There is no automatic right on the part of an employer to demand that an employee undergo any kind of psychiatric examination. To have such a right the employer must obtain the employee’s prior agreement in writing.
The insistence on the examination and suspension for refusing to accept it amounted to repudiatory breach of contract by the authority.

Question 20

Walsh v. Dublin Health Authority 98 ILTR 82

Answer 20

Notice of termination
Employment expressed to be permanent and pensionable - Meaning of word “permanent”in circumstances of employment - Right to terminate employment for redundancy by reasonable notice.

Question 21

Grehan v. North Eastern Health Board [1989] IR 422

Answer 21

Notice of termination
Does the contract between the plaintiff, a medical practitioner, and the defendant health board imply a term allowing the board to terminate the contract on reasonable notice, even though there is no express term to that effect?
The court concluded that the contract did not require the implied term and therefore could not be terminated by the health board on reasonable notice.