Case Name: Claire Dunne v Irish Prison Service (UD 704/2009)

Legislation: Unfair Dismissals Acts, 1997 TO 2007 and Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Jurisdictions/Subject Matter: Dismissal during probationary period.


Facts

The employer conceded the claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 at the outset.

The claimant/employee commenced work with the respondent employer on the 21 October 2006 as a prison officer and was required to serve a standard 12 month probationary period, during which a number of probationary assessments were to be carried out.

The claimant’s probationary period was extended initially to 18 months, then to 22 months and finally to 26 months, allegedly to give the claimant an opportunity to improve. In her final probationary assessment, the claimant had worked for the respondent for over 2 years and it was alleged that during the course of the 26 months, the claimant’s level of absenteeism and punctuality were poor and that she had received numerous warnings.

On the 14 January 2009 the claimant received a letter from the HR Directorate informing her that her file was being submitted to the Secretary General for consideration for dismissal. In this letter, the claimant was offered the opportunity to make a written submission stating her position. She submitted this along with supporting documentation from the Chief Welfare Officer and a union representative. However, after consideration and upon recommendation by the personnel officer, the decision to dismiss the claimant was made by the Secretary General of the respondent employer on the 11 March 2009.

The claimant’s employment terminated on the 21 March 2009. The claimant alleged that a decision had in fact been made to terminate her employment in January but she did not become aware of this until she received the letter confirming her dismissal in March.

The claimant was five months pregnant at the time of her dismissal.

It was submitted that the decision to dismiss the claimant was based on her overall punctuality and attendance record and that she was not dismissed due to her ill health or as a consequence of certified sick leave.

A witness for the respondent company who completed the claimant’s probationary reports told the Tribunal that the claimant did not meet the required standard with regard to attendance and punctuality and therefore, he could not recommend her for confirmation of appointment.


Determination

The Tribunal were disinclined to believe that the claimant was unaware that her job was in jeopardy as she had received letters from the HR directorate throughout her probation stating that continued retention of employment was contingent on her ability to provide regular service.

The Tribunal stated that during a probationary period, the onus is on an employee to prove they are capable and committed to the role and stated that the claimant had failed to do this.

However, the Tribunal went on to say that when a dismissal occurs, whether on probation or not, fair procedures must be adhered to. The Tribunal concluded that the manner in which the claimant’s dismissal was handled between January and March 2009 was flawed as she did not receive an opportunity to meet with HR nor was she afforded the chance to seek representation.

The Tribunal concluded that the claimant was unfairly dismissed but that she was not without fault and therefore, an award of €15,000 was made under the Unfair Dismissals Acts 1977 to 2007. An award of €2,200 (being the equivalent of 2 weeks' pay) was made under Minimum Notice and Terms of Employment Acts 1973 to 2001.


Legal Review

Contracts of employment that provide for a probationary period are useful to employers to remind employees that they are being evaluated during that period so the employer can make an informed decision on the employee’s continued employment. Probationary periods have no special status in law however. One use of probation periods is to set out certain things that will apply during the probation period that will not apply during the rest of the contract. For instance, it is common for the contract to provide that during probation there is a shorter notice period or that the employee will not be entitled to certain contractual benefits. Once the probation is completed, the longer notice period or the contractual benefits will then apply.

A common misconception exists that an employer is entitled to dismiss an employee on probation without affording them the benefit of fair procedure and without fear of sanction. This is not strictly true. If an employee has one year’s continuous service (and in some case, even if the employee does not have one year’s service) the employee will have rights under the Unfair Dismissals Acts 1977-2007.

Section 3(1) of the Unfair Dismissals Acts 1977-2007 provides that the legislation shall not apply to an employee dismissed during a probationary period at the commencement of employment if the contract of employment is in writing and the duration of the probationary period is one year or less and is specified in the contract. As the qualifying period for the Unfair Dismissals acts is now generally one year anyway, this Section has no practical effect, and an employee on probation is in the same position as another employee not on probation as regards the Unfair Dismissals Acts.

In relation to Civil Service appointments, the Civil Service Regulation (Amendment) Act 2005 specifically provides for civil servants to be engaged on a probationary contract and, after satisfactory service, obtain established status.

An employee who is dismissed with less than one year's service (whether on probation or not) can still bring a claim under the Industrial Relations Acts. An employer does not have to participate in such cases, nor is any recommendation of the Rights Commissioner binding or enforceable. This sometimes means an employer can dismiss an employee with less than one year’s service with relative impunity. It is very important in such cases to consider other potential claims, such as wrongful dismissal claims and equality claims to ensure that the employer doesn’t end up in unforeseen litigation.

Often of significance is the fact that there is no service requirement for an employee bringing a claim under the Employment Equality Acts 1998-2008 and, accordingly, if the employee dismissed whilst on probation believes that he/she was discriminated against on one of the nine grounds prohibited by the Acts, they may bring a claim to the Equality Tribunal. The maximum amount of compensation that may be awarded in such cases is two years remuneration.

In conclusion, employers should be aware that employees on probation are generally not treated differently in law and the employer should carefully determine what the legal position of any employee is, or is likely to be, before deciding how to proceed. They key is often the length of service of the employee, and not whether they are on probation.