Probationary employee granted injunction where dismissal appeared linked to misconduct allegations, requiring adherence to fair procedures despite probation.

The plaintiff sought numerous interlocutory orders preventing her employer from terminating her employment, replacing her in the workplace and terminating her employment contracts.

The plaintiff was employed by the defendant as a supervisor, and was promised that subject to performance, she would be promoted to store manager within a month. She was acting as manager from the commencement of her employment. Towards the end of her first month as employee, another employee made several allegations against her centring on "the plaintiff's management duties and interpersonal relationship with her at work."

The plaintiff was informed that an external HR firm had been appointed to investigate the allegations in accordance with the Bullying and Harassment Policy. The plaintiff was promoted to the position of store manager while the investigation was ongoing and her contract provided for a probationary period of six months, extendable by a further five months. During the probationary period her manager received a further complaint against her. The investigation spanned several months before the plaintiff was informed that her employment would be terminated.

The plaintiff's solicitor wrote to the defendant outlining her position and requesting her immediate reinstatement. The plaintiff claimed that she was dismissed before the allegations of misconduct had been investigated, which amounted to a breach of fair procedures and the company’s own policy. The defendant argued that the plaintiff did not come to the court with clean hands and therefore was not entitled to the reliefs sought. 

The Court concluded that the plaintiff’s conduct did not amount to the type of conduct or level of turpitude which would constitute the plaintiff coming with unclean hands.

At the core of the plaintiff's case was that her employment had been terminated because of the allegations and this amounted to termination for misconduct. Dignam J noted that “the authorities are clear that an employee may be let go during her probationary period for any reason (including poor performance) or no reason without any obligation to afford fair procedures. However, it is equally clear as a matter of general principle that while at common law an employer is free to dismiss an employee for any reason or no reason, where the dismissal or termination is for misconduct, the employer is obliged to comply with fair procedures.”

The Court reiterated the test for interlocutory injunctions as stated by the Supreme Court in Merck Sharp & Dohme v Clonmel Healthcare [2019] IESC 65. The Court considered whether a permanent injunction would be granted if the plaintiff succeeded at trial. The judge stated that due to the different terms and nature of the injunctions sought, the Court could not conclude with sufficient certainty that a permanent injunction would not be granted.

The judge considered whether the employee was terminated for misconduct. If she was then she was entitled to fair procedures, natural justice and would be granted the injunction. The Court decided that the balance of justice required some relief to avoid "irredeemable harm to the plaintiff in the event that she was ultimately successful at trial." Accordingly, interlocutory orders were made to restrain the defendant from taking any steps to appoint any other person to the plaintiff's position, and to restrain the defendant from treating the plaintiff as anything other than continuing to be employed by the defendant.

An employee on probation can be terminated for no reason or on performance grounds without an obligation to afford fair procedures and natural justice. However, an employer must ensure fair procedures if the employee is to be terminated on the grounds of conduct, even if the employee is on probation.