Paul D Maier is a barrister specialising in the law of work, labour, and employment. Based in Dublin, Ireland, he is a member of the Law Library, having been called to the Bar in 2022.
Paul represents both employers and employees at all levels of the Courts, as well as before the Labour Court and the Workplace Relations Commission. He is a qualified arbitrator and is frequently commissioned to lead independent investigations and disciplinary procedures for organisations. Additionally, he is regularly engaged to provide legal advice and opinions on employment law and related matters.
Paul serves as the Editor of the Irish Employment Law Journal and Employment Law Report, and he is the Treasurer of the Employment Bar Association.
Summary Sentence:
A lecturer’s 12-month probationary period for a 24-month fixed-term contract was found to be disproportionate and was reduced to six months.
Background:
The Complainant is a lecturer with the Respondent institute of technology and was hired in September 2023 on a 24-month fixed-term contract. The Complainant originally believed that the 12-month probation period was a mistake, as there were other errors in his contract, but this was confirmed by the Respondent after the Complainant came across difficulty in getting a mortgage due to being on probation. The Complainant argued that the probationary period was discriminatory against him as a fixed-term worker on the basis that the period was disproportionate when compared to permanent employees, who had the same period of probation. Alternatively, the Complainant argued that the probationary period was in contravention of the Protection of Employees (Fixed-Term Work) Act 2003 as amended by legislation implementing EU Directive 2019/1152 on Transparent and Predictable Working Conditions, which requires that a probation period be proportionate.
The Respondent did not attempt to defend the probation period substantively, but did say that it was in place due to a sectoral bargaining agreement which established standard contracts between several institutes of technology and unions representing third-level teachers. On this basis it was not open to the Respondent to change the contract in the way which the Complainant had requested.
Outcome:
The Adjudication Officer found the complaint regarding discrimination on the basis of being a fixed-term worker not well-founded. However, the Adjudication Officer found the complaint regarding proportionality well-founded, and said that the Respondent had a positive obligation in the circumstances to defend the length of the probationary period and it had failed to do so. Despite the Complainant not pursuing compensation, the Adjudication Officer decided to direct the Respondent to pay the Complainant €1,000 as a deterrent to the Respondent and directed the Respondent to reduce the Complainant’s probation period to six months, meaning that it was complete prior to the day of hearing.
Practical Guidance for Employers:
Many standard employment contracts include probation periods which are now in breach of the requirement for probationary periods to be proportionate, and in the private sector, to be a maximum of six months (subject to extension if in the interest of the employee), and such provisions should be changed to avoid risk of litigation.
The full case is here:
https://www.workplacerelations.ie/en/cases/2024/april/adj-00050085.html
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