Frustration of the contract of employment and long term absence from work

Abstract

This paper considers the issues which arise when a worker becomes incapacitated for work and suffers a long-term absence from work. It examines the doctrine of frustration of the contract of employment and its contemporary application, and focuses particularly on a recent decision of Hilton Hotels of Australia Limited v Pasovska which purported to apply the important authority of Finch v Sayers which has been influential in the interpretation of the application of the doctrine in employment matters. The paper also canvasses the effect of provisions in workers compensation statutes on frustration where the worker has been absent for a lengthy period and examines a number of cases where industrial tribunals have found unfair termination of employment of long term injured workers who have been dismissed without full consideration of their capacity for work. The paper concludes by suggesting that the decision in Finch v Sayers should be reconsidered having regard to contemporary influences and changes in labour market regulations.