The Law of Contract Essay Example | Topics and Well Written Essays - 2750 words

The Law of Contract - Essay Example It is the incumbent on the employer to prove that the employee's absence or incapacity was of such a nature that further performance of his obligations in the future would be either impossible or a thing radically different from that undertaken by him to perform. The doctrine of frustration applies in the same way when a workman is physically or mentally incapacitated. In such cases, the workman would be entitled to be paid termination benefits under the Regulations 4 of the Employment (Termination And Lay-Off Benefits) Regulation 1980 and all statutory benefits due to him under the relevant legislation. Therefore, illness of an employee may operate to determine the contract if the illness is such as to interfere materially with the proper performance of the contract. On the other hand, a mere temporary illness will not so materially affect the employee's ability give personal service and, therefore, will not entitle the employer to dismiss the employee. The court affirmed that it was only in the case of a very serious sickness which may be considered as an event sufficiently fundamental to frustrate the contract and to give the employer the right to immediately dismiss the employee concerned on the grounds of disability. The incapacity or illness should not be temporary, but it should be serious and prolonged that the employee cannot be expected to perform his duties in the foreseeable future. In such circumstances, the employer has the right to terminate the employee's services. ... which may be considered as an event sufficiently fundamental to frustrate the contract and to give the employer the right to immediately dismiss the employee concerned on the grounds of disability. The incapacity or illness should not be temporary, but it should be serious and prolonged that the employee cannot be expected to perform his duties in the foreseeable future. In such circumstances, the employer has the right to terminate the employee's services. However, terminating the services of any employee while he is still on sick leave is an unfair labour practice. In the case of employee under police detention/custody, it is settled law that detention by police is a reasonable excuse to be absent from work. It is the finding of the court that absence from work due to arrest by police without any fault of the claimant is not misconduct and should not lead to his dismissal by applying provisions of S.13 (2) and S.15 (2) of the Employment Act 1955.In any event simply not being present at work is not per se a frustrating event, especially the time concerned was of short duration. If the company relies on the frustration of contract, it is for the company to establish that the employee's absence was of such duration that further performance of his obligations in the future is impossible. Thus, a contract of service may be frustrated if it is established that the nature of work so performed is critical to the operation of the company and the absence of the employee concerned is of a duration or nature that further performance of his duties under his contract of service in future would be impossible. The critical nature of work performed in relation to company's operational requirements