Complainant

Respondent

Anonymised Parties

Patient Co-Ordinator

Dental Care

Representatives

None

John Connellan, Carley & Connellan

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00034833-001

24/02/2020

The complainant alleges that she was given no warnings prior to her dismissal. The dismissal was (allegedly) effectuated via a phone call to the claimant on Tuesday Feb. 18th. During this call it was alleged that she was told that she was being let go. As the claimant alleged that she had only gotten out of hospital the day before, she considered it to be ‘extremely unfair’ to be dismissed whilst out on sick leave. She also alleges that she got no warnings prior to the dismissal. The respondent contends that the dismissal (of the probationer claimant) was fair and that it is not disputed that she had been informed about her problematic performance/probation as part of the probationary review process.

The complainant alleges that she was given no warnings prior to her dismissal. The dismissal was (allegedly) effectuated via a phone call to the claimant on Tuesday Feb. 18th. During this call it was alleged that she was told that she was being let go. As the claimant alleged that she had only gotten out of hospital the day before, she considered it to be ‘extremely unfair’ to be dismissed whilst out on sick leave. She also alleges that she got no warnings prior to the dismissal.

The respondent contends that the dismissal (of the probationer claimant) was fair and that it is not disputed that she had been informed about her problematic performance/probation as part of the probationary review process. It was also noted that the content of this probationary review was accepted by the employee.

The recent Recommendation of an Adjudication Officer to award compensation to a probationer employee dismissed by his/her employer – who ordered Covid-19 masks that didn’t meet the minimum standards and surface cleaner instead of hand sanitiser - serves as a timely reminder that procedural and practical considerations apply when terminating probationers’ contracts, even if they are not covered by the provisions of the Unfair Dismissals Acts (ADJ-00028733).

This case serves to confirm that - contrary to popular opinion – an employee’s dismissal during probation is not risk-free and can expose employers to compensatory awards. Indeed, as recently as mid-2020 the High Court addressed this issue, when it made an order reversing the peremptory dismissal of a chartered management accountant from a tech company, that tried to terminate his employment contract as the close of his probationary term loomed. This case serves as another persuasive reminder that fair procedures are required when dismissing a worker on probation – or who has less than required service for recourse to the Unfair Dismissal Acts.

Probationary periods are frequently provided for in contracts of employment, allowing for a trial time during which an employer evaluates an employee’s suitability. However, it is clear that even where an employer provides that the standard disciplinary procedure doesn’t apply during this probationary period, employees still have a right to fair procedure in the event of their employment being terminated. In the renowned case involving Glenpatrick Watercoolers Ltd., the Labour Court held that ‘even where a Company’s standard disciplinary procedure is stated not to apply during probation, the requirements of the Code of Practice on Grievance and Disciplinary Procedures apply, and the employer has an obligation to act fairly during the probationary period’(LCR21028).

This precedent (from 2015) was subsequently endorsed by the same Court (in 2018), when it awarded €90,000 to a probationer at the Park Hotel, Kenmare, in response to a claim taken under the industrial relations legislation. The hotel’s legal representative submitted that the respondent was entitled to dismiss the claimant during his probationary period, by giving of notice to that effect, as provided for in his contract of employment. However, when explaining its decision, the Court pointed out that ‘the Claimant was not provided with details of any performance issues; no warning was given .. the procedures adopted in the termination of the Claimant’s employment were seriously flawed’ as ‘he was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000’. Summarising the scenario, the Court pointed out that it ‘has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice’ (LCR21798). The €90,000 award in this case also underlines the onus on employers to implement fair procedures for dismissals where there may be serious reputational consequences for a claimant.

In one of its most comprehensive assessments pertaining to procedural shortcomings when dealing with a probationer’s sub-standard performance, in 2015 the Labour Courtawarded compensation of over €33,000 against Embankment Plastics Ltd., as they were guilty of ‘a litany of wrong choices’ when dismissing their Quality Engineer, including the fact that:

• ‘At no stage did the Respondent issue the Claimant with a letter outlining its concerns with the alleged underperformance;
• The Claimant was not on advance notice that the meeting he attended at which his employment was terminated was a disciplinary meeting;
• The Claimant was not advised of his right to be accompanied and/or represented at the meeting;
• The Claimant was not given advance written notice that he was at risk of having his employment terminated at the aforementioned meeting;
• The decision to dismiss the Claimant was communicated by the Managing Director in the course of an uninterrupted meeting such that there is no evidence of the Managing Director having taken a break in proceedings to reflect on anything the Claimant may have said in defence of the allegations put to him at the meeting;
• The Claimant was not issued with a letter of dismissal confirming the reasons for his dismissal and advising him of a right of appeal’ (LCR21066).

As alluded to above, a recent decision from the High Court provides yet another persuasive reminder that fair procedures are required when dismissing a worker on probation. In mid-2020 the High Court made an order that effectively reversed the decision to dismiss Donal O’Donovan (i.e. the aforementioned chartered management accountant) from a tech company that had terminated his contract shortly before the end of the probation period. In this case Justice Keane issued a modified version of what is called the Fennelly Order, requiring the defendants, Over-C Technology/Over-C Ltd., to pay the probationer’s salary for the 6 months that had passed since his dismissal. The claimant accountant’s contract provided for a probationary period of 6 months, prompting a letter of termination from the defendants close to the end of this period, informing him that he was being dismissed for sub-standard performance in his role as Chief Financial Officer. In judgement, it was held that O’Donovan ‘was entitled to a level of procedural fairness that he did not receive, most obviously in the context of both a right to be heard and a right of appeal’ (2020 IEHC 291).

With reference to same as applied to this case/complaint, it should be noted that:

(i)                  when asked, the respondent’s representative acknowledged that he was ‘unsure if she was dismissed by phone or in person’. The claimant contended that the dismissal decision was conveyed by phone. Furthermore, when asked about ‘fair procedures’ and the ‘principles of natural justice’, the respondent’s representative replied that there were ‘substantial grounds for dismissal’ and that the principles of natural justice ‘don’t arise, as the facts are not disputed’ by the claimant.

(ii)                the employee’s problematic probationary service can be described as contributory negligence and so may modify any recommended compensatory award.

In conclusion, as things stand, whilst it is the employer’s right not to retain an employee adjudged to be unsuitable during probation, a decision of this nature can only be legitimately effectuated where it adheres to the standard tenets of fair procedures (n.b. see LCR21066listing and the 2020 IEHC 291 case references/quotations above) and the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000.

Based upon the foregoing, I hereby recommend that a payment of compensation of €821.25 (equivalent to two weeks’ gross pay) be made to the claimant by the respondent.

PROBATION DISMISSAL