Fair procedures during probation crucial to avoid unfair dismissal.

The Complainant commenced her employment with the Respondent in September 2022 in the role of Executive Officer. She asserted that, when she was notified of the termination of her employment on 30 August 2023, no substantive reasons for her dismissal were provided. Following receipt of the notice, the Complainant continued to work throughout her notice period. Her employment effectively ended on 29 September 2023 (her final day of work).

The Respondent argued that the WRC had no jurisdiction to hear the complaint, as the Complainant did not have the required service under the Act. It was asserted that the probationary period was less than one year and, under s.3 of the Act, the protections did not apply. The decision to fail the Complainant’s probation was made and communicated within that period, specifically on 30 August 2023. The Respondent noted that the probation was extended to allow the Complainant the fullest opportunity to demonstrate competence. However, the Respondent acknowledged that if the Act applied, the dismissal would likely be unfair, as a second Performance Improvement Plan had not been implemented.

The Adjudicating Officer found the Complainant’s unfair dismissal claim (under the Unfair Dismissals Acts 1977–2015). Per s.2(1)(a) of the Act i.e. employees with less than one year's continuous service are generally excluded from protection applied. However, because the Complainant's one-month contractual notice period extended her employment to over a year, she fell within the Act’s scope. The Respondent conceded that without a second Performance Improvement Plan, the dismissal would be unfair. The Adjudication Officer found the dismissal unfair, noting that while the Complainant failed to adequately mitigate her losses, the employer had failed to follow fair procedures. Weighing both parties' conduct under s.7 of the Act, and in line with relevant case law, a compensation award of €15,000 was made, as reinstatement or re-engagement was not appropriate due to the breakdown of trust.

Employers should:

• Clearly outline probationary periods, including review processes and extension terms, in employment contracts. Ensure that any dismissal during probation is managed carefully, with proper documentation. If an employee is entitled to a notice period extending their service beyond a year, they may qualify for unfair dismissal protections.
  
• Even during probation, employers should apply fair and transparent procedures before dismissing an employee. This includes regular performance reviews, clear communication of concerns, and offering opportunities for improvement. Failure to implement agreed processes, such as Performance Improvement Plans, can expose employers to successful unfair dismissal claims.
  
• When issuing notice of termination, employers must be explicit about the reasons for dismissal and ensure compliance with notice obligations. Requesting that the employee work their notice period (rather than offering payment in lieu) can affect legal service calculations, potentially bringing the employee within the protection of unfair dismissal legislation.
  

• Be aware that the WRC will assess both parties’ conduct when awarding compensation. Although an employee’s failure to mitigate loss may reduce awards, procedural unfairness by the employer remains a significant factor. Properly following dismissal procedures reduces financial exposure and reputational risk in litigation.

The full case can be found here.