Here's what employers need to know about firing people on probation
Firms often overlook a law that lets staff take an unfair dismissal case even when they’re being tried out.
ALL EMPLOYEES HAVE the same rights when it comes to fair procedures and natural justice in relation to their termination of employment - including those on probation.
Probationary periods provide an opportunity for an employer to assess, evaluate and train employees. The period also affords some protection for employers as employees who have less than 12 months’ continued employment do not have sufficient service in general, to take a case under the Unfair Dismissals Acts.
However, what is often overlooked by employers is that employees with less than a year’s employment can take a case under the Industrial Relations Act 1969, as there is no service qualification under this act.
This can lead to misunderstanding on the part of employers where they may believe they can terminate an employee’s contract of employment without following due process and not risk reprisal.
The Workplace Relations Commission (WRC) recently found in favour of a complainant under the Industrial Relation Act because she was not afforded fair procedure and natural justice.
While the employee’s actions and behaviour contributed significantly to her dismissal, she was not afforded an opportunity to respond to her employer’s complaints.
Complaints
The complainant was employed as a general assistant in a restaurant in January of last year. Her employment was terminated the following April.
At the end of March, she was asked to attend a meeting with her manager to discuss her poor performance and was given a letter outlining the concerns, which included her attitude towards supervisors, interaction with customers and drinking water in the food service areas as well as using her mobile phone without permission.
At this meeting, she was also advised her trial period was being extended until the end of April.
The complainant had received a copy of the employee handbook with her contract of employment when she started work, which outlined the company’s policy on phone use.
Upon commencement of employment, the complainant also attended training courses, at which basic hygiene rules about employees eating and drinking at the food service areas were outlined.
Following the meeting in March, the complainant was again observed drinking in the food service area and on her mobile phone in early April. It was also noted that she was finishing work before her shift was officially over.
Her supervisor made further complaints about her behaviour and another meeting was convened with the complainant in mid-April. It was at this meeting she was notified that she was no longer employed and was given her P45.
Compensation
However, while her behaviour contravened policies set out in the terms and conditions of her employment, the WRC noted that he had not received oral or written warnings prior to her dismissal. And, as noted by the WRC, she was not afforded an opportunity to respond to the complaints made against her.
On that basis, the WRC found in favour of the complainant in that, while her probation period was extended, she was not afforded fair procedures and natural justice. She was awarded €200.
This case highlights the need for an understanding on the part of employers that employees are still entitled to protections even during their probationary period.
Although the award in this case was small, there is time and costs involved on behalf of employers to defend such claims.
Employers must follow correct procedures when dealing with disciplinary issues and document the process correctly, or risk facing an unfair dismissal hearing and compensation payout.
Derek McKay is managing director of Adare Human Resource Management.
