The claimant commenced employment with the respondent financial company in January 2008. The claimant objected to the probation clause in the contract and in order to accommodate the claimant, this clause was replaced with performance targets agreed with the claimant. This clause also provided that a failure to achieve the targets would entitle the company to treat the agreement as frustrated and terminated. The claimant failed to achieve the targets and a meeting was held on 5 November 2008, at which the claimant was given verbal notice of termination. The claimant was also given an opportunity to retain his position if he accepted a pay cut and formulated a business plan. The plan was not accepted by the claimant. The claimant was dismissed by telephone on 27 January 2009.
The Tribunal referred to the case of Herman v Owners of the SS Vica (1942) IR 305 where it was held that “the event which frustrates the contract must not be unexpected and not within the parties contemplation”. The Tribunal found that the contract was not frustrated. Clause 10.1 of the Contract also provided that any notice under the agreement shall be in writing. In this regard the Tribunal noted that the contract was terminated by telephonic communication. The EAT held that the dismissal was not fair and was in breach of fair procedures. The claimant was awarded €30,625.