We reassigned a casual employee to a job that includes driving duties even though he didn’t have a driver’s licence because he assured us he’d get one. He’s did try several times but hasn’t been successful. It’s now been over 2.5 years and we feel like we can’t wait any longer. Are we in a legal position to fire him?
Probably so—with the caveat that I don’t know all the facts of the situation.
This sounds like a classic case of what’s called “frustration of contract,” which occurs when, through no fault of either party, the employment contract becomes impossible to fulfill. There are 2 key points that you’d have to prove, as the employer:
The first is that driving is, indeed, an essential duty of the job. The danger is that the 2+ years you’ve allowed the employee to continue in the job without a driver’s licence could be used as evidence that driving really isn’t that important. What, in other words, has changed so that what you tolerated in the past is no longer acceptable now?
The other thing you must show is that there’s no reasonable likelihood of the employee’s being able to get the licence in the immediately foreseeable future.