Employer found to have fairly dismissed an employee during probation after repeated absences.

The Complainant stated that he commenced employment with the Respondent in January 2024 as a technical support advisor, subject to a six-month probationary period. He contended that he performed his duties competently and met the standards expected of him during his employment. While he accepted that he had periods of absence, he maintained that these absences were medically certified, unavoidable, and managed in accordance with the employer’s procedures. He stated that following a more serious illness absence, he returned to work and experienced an indifferent and unsympathetic attitude from management. He further stated that probation meetings were repeatedly delayed and that the final outcome took significantly longer than promised, leaving him uncertain about his future employment and causing emotional distress. He believed the employer gave mixed signals by involving him in upcoming projects before ultimately informing him in September 2024 that he had failed probation and that his employment was terminated.

The Respondent stated that the Complainant commenced employment under a permanent contract that expressly contained a six-month probationary clause. During the probationary period, the Complainant experienced several periods of absence, including a six-and-a-half-week absence in mid-2024. The Respondent submitted that each absence was discussed with the Complainant through return-to-work meetings and that he was advised that continued absence could negatively affect his probation review. Following the prolonged absence, the Complainant underwent an occupational health assessment, which confirmed that the illness was not work related and that no workplace accommodations were required. The Respondent stated that it paused and extended the probationary period to give the Complainant additional time to achieve the expected standards. It maintained that the Complainant attended formal probation meetings, was afforded representation rights and opportunities to respond, but ultimately failed to satisfy the standards required. Accordingly, the Respondent stated that the dismissal occurred fairly and strictly in line with the agreed probationary procedure.

The Adjudicating Officer found that the Respondent acted fairly and reasonably in dismissing the Complainant during probation. It was accepted that the Respondent clearly communicated the probationary standards at the commencement of employment and engaged appropriately with the Complainant throughout the process. The Adjudicator noted that the Complainant had been spoken to regarding his absences, attended return-to-work meetings, and was formally invited to probation review meetings with the benefit of representation. While the Adjudicator acknowledged sympathy for the Complainant due to the medical nature of his absences, it was accepted that the Respondent was entitled to rely upon the probationary provisions contained within the contract of employment. The Adjudicator further found that the process adopted did not breach principles of natural justice or fair procedures and that the decision reached was not irrational. In those circumstances, the complaint was rejected, and no recommendation was made in favour of the Complainant.

Employers should:                

• Ensure probationary procedures are clearly drafted, expressly incorporated into contracts of employment, and communicated to employees at the commencement of employment. Employees should understand from the outset the standards expected regarding attendance, performance, conduct and overall suitability for the role.
  
  
• Consistently apply absence management procedures and maintain open communication with the employee. Return-to-work meetings, occupational health referrals and reasonable opportunities for improvement should be properly documented.
  
  
• Remember that probationary dismissals remain subject to principles of natural justice and fair procedures, even where statutory unfair dismissal protections may not yet fully apply. Employees should be informed of concerns, afforded opportunities to respond, and given representation rights where appropriated.

The full case can be found here.