Employment Frustration

Posted 08 September 2014 by Mike Johnson Frustration, termination;

From time to time I am asked if it is OK to terminate someone’s employment because they cannot do the work and so the contract is frustrated. I wish it was that simple.

The simple requirement for frustration is that it has become impossible for the obligations created by the agreement to be fulfilled because of an event outside the control of either. A recent court case has raised some useful principles:

• It has to be an event that is not contemplated in the employment agreement (an employee’s action leading to the loss of a key licence/access rights etc is generally disciplinary and not frustration);
• It needs to be an event that stops employment – very often the event simply closes one alternative and there may be other tasks available (dismissal here may need to be for reason of redundancy); and
• It does not stop the need for good faith consultation.

If you are feeling frustrated because of a situation that seems to stop an employee from being able to work, don’t just fire them; phone me first.