FACTS

The employee was required to serve a probationary period of twelve months. This was then extended on a number of occasions until she had worked for the Respondent for over two years. The employer took a decision to dismiss the Claimant and the Claimant was offered the opportunity to make a written submission prior to her dismissal. She was not offered to make an oral representation to the employer. The decision to dismiss the employee was actually taken in January 2009, although she wasn’t informed about the decision until March 2009, referring to the “secretary general’s original decision to dismiss her”, and that this decision still stood and that her employment would now terminate. 

DETERMINATION 

There was a lot of dispute about facts in the case, including sick leave, punctuality etc. The interesting portion however is the way in which the procedures were handled. The Tribunal found as follows: 

1. They disbelieved the Claimant that she did not realise her job was in jeopardy until January 2009. This is because there was a string of letters referring to her inability to provide regular service, and the fact that her probationary periods were extended. 

2. They stated that during a probationary role the onus is on the employee to prove that he/she is capable and committed to the role. 

3. However they pointed out that fair procedures must be applied whether or not a person is on probation. They describe the manner in which the dismissal was handled between January and March 2009 as being flawed. 

4. They criticised the fact that the Claimant was not offered any opportunity to meet with HR, nor was she “afforded with a representative”, and was unaware that the decision to dismiss her was already taken. 

5. The Tribunal found that the dismissal was unfair, but awarded a reduced award because they believed that the Claimant contributed to her own dismissal.

Full case decision:
http://bit.ly/r6iyfD 

LEGAL REVIEW

There are a couple of noteworthy things in this decision. 

Firstly, the original probation period of twelve months, meant that in all circumstances an employee who came to the end of their probation period (whether successful or unsuccessful) would be able to sue in the Employment Appeals Tribunal for unfair dismissal. Some employers operate probation periods, with a clear intent that the probation period, plus any notice period due to the employee, is less than twelve months. 

This will mean that in many cases that an employee dismissed at the end of their probation does not have the required service to bring a claim under the Unfair Dismissals acts. There is nothing in legislation that marks a probationary period as in any way protected or special. The only legislative reference to it is an obsolete reference to it in the Unfair Dismissals acts. 

In practice, a probationary period is a period of evaluation and training, but the advantages of a probationary period are more in terms putting a time reference as to when a decision to retain or dismiss the employee will be made. The employer’s actual protection in a probationary period comes more from the fact that the employee has not yet gotten sufficient service to enable him/her to sue under the Unfair Dismissals acts. 

If an employee while still on probation does have sufficient service to sue under the Unfair Dismissals acts, then the employer is wise to simply treat the employee as it would any other employee. 

The employer failed to provide fair procedures in that the employee was not afforded a right of (non-legal) representation, was not afforded an oral hearing, the decision to dismiss was taken before the employee had any opportunity to influence the outcome and her written appeal of the decision to dismiss her was sent in without the Claimant realising that she was not appealing why she should not be dismissed in the first place, but was in fact appealing a decision to dismiss which had already been taken. 

It seems highly likely that the fact that the employee was on probation influenced the way in which this matter was handled, and is a salutary reminder to employers not to rely upon probation periods as anything other than a period of evaluation or training, and a period within which the employer is going to take a decision. 

If the probationary period had been much shorter (say six months), then any decision to dismiss which was taken without affording the employee fair procedures would still be a breach of fair procedures, but the employee’s effective remedies may have been much more limited. For example, an employee could always bring a claim under the Industrial Relations Acts and, unless the procedures were fair, one assumes that the Rights Commissioner would make a finding to that effect. 

However, such an unenforceable and non-binding recommendation is of much less import to many employers, than a binding and enforceable finding of unfair dismissal in the Employment Appeals Tribunal. 

CONCLUSION

Probationary periods should be treated as no more than a timeframe within which a decision will be taken. It is wise from an employer’s point of view to make then relatively short, to ensure that any period (and including any period of notice) is less than the qualifying period for Unfair Dismissal. 

Some employers prefer not to bother with probationary periods for this reason, whilst others feel the open threat of a decision being made incentivises the employee.