Most employers in Ireland operate a probation period and have included a probation clause in their terms and conditions of employment. It is a very standard clause and is intended to give the employer time to assess the new employee’s suitability for the position. More specifically it allows an employer to determine whether the employee is suitable for the role and is the right fit for the team and the organisation and to terminate the employee’s employment if they believe they are unsuitable.
Dismissal During Probation
The first thing that is important is that the probation clause excludes the disciplinary procedure applying during the probation period. Provided that is included, then there are differing views from the Courts when it comes to dismissal during probation.
Where the dismissal is for conduct, as opposed to performance, then the case law appears to be clear that an employee is entitled to fair procedures and natural justice, similarly to those applied under the disciplinary procedure. What we mean by this is that a person is made aware they are attending a probation review meeting and as their employment could be ended, they may be accompanied.
However, where the dismissal is performance related, the Court of Appeal in Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37, took the view that “both parties are – and must be – free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other.”
The Court of Appeal also outlined that where a probationary clause in the contract outlines that the normal disciplinary procedures do not apply then the court cannot, and should not, imply the right to fair procedures in relation to an assessment of an “employees’ performance by an employer (other than for misconduct, which does not arise here) during the probationary period, as this would negate the whole purpose of a probationary period.”
The Court of Appeal was clear in its decision that in cases of dismissal during probation,
the “principles of natural justice apply to cases involving dismissal for misconduct, but not to termination on other grounds”; and in performance-related dismissals during probation, “an employer can terminate employment for any reason or no reason, provided adequate notice is given”
The Labours Court has consistently taken a different approach and outlined its view on the matter in the case of DAC -v- A Worker LCR22710. In this case, the Court recommended that “whenever a worker, including a worker who is on probation, is at risk of the loss of his or her job, it is incumbent on the employer to make the worker aware of the situation and of the reasons. In addition, where the issue arises from the conduct or performance of the worker, he or she should be afforded an opportunity to address the decision maker in his or her defence.”
The Labour Court’s view is, therefore, regardless of whether the employee is in a probationary period or not and whether the dismissal is for misconduct or for performance, if the employee’s job is at risk, the employee is entitled to natural justice and fair procedures applied.
Whilst an employee in probation does not have at least the one year’s continuous service required to take a claim under the Unfair Dismissals Acts 1977 – 2015, or the dismissal is not under any of the exempted grounds under the Act, the employee may still make a complaint to the Workplace Relations Commission or to the Labour Court under the Industrial Relations Act, 1969.
Whilst the WRC and the Labour Court will issue recommendations under the Industrial Relations Act 1969, and although these recommendations are not enforceable in law, they could give rise to industrial relations issues, particularly in unionised environments, while Labour Court Recommendations can also give rise to publicity, as they are published, and the names of the parties may not be anonymised.
So, what does all of this mean for employers?
It is important for employers, when considering a decision to terminate an employee’s employment during probation, that they consider the reasons why the employee is being dismissed, and at the very least, if the dismissal is for misconduct, natural justice should be applied (i.e. impartial decision-maker, prior notice of meetings, details of allegations to be provided in advance, the right to be accompanied and of appeal).
Finally, it is crucial that employers ensure that before any decision is made, the employee has been given the chance to improve, that way the employee cannot ever claim they did not know they were not performing satisfactorily.
Contact MSS The HR People for guidance on your policies and advice surrounding dismissals in probation.
Disclaimer. This information is for information only and is not legal advice.
