Complainant

Respondent

Anonymised Parties

An Assistant Lecturer

An Institute of Technology

Representatives

Laura Kerin IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061468-001

09/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00061468-002

09/02/2024

The Complainant works for the Respondent as a part-time assistant lecturer. He was hired on a 24 month fixed term contract in September 2023. His probation period is 12 months long.

He has brought complaints under both the Protection of Employees (Fixed-Term Work) Act, 2003 and Terms of Employment (Information) Act, 1994 challenging the length of the probation period.

Both pieces of legislation were amended following the transposition of Directive (EU) 2019/1152 on Transparent and Predictable Working Conditions.

The Complainant’s is a psychotherapist with his own private practice. He made an application for this decision to be anonymised because of the intricacies of his profession. He is required to keep a minimal public profile as some clients, in need of therapy, can make quite significant leaps and assumptions about a therapist when given even a small amount of information about them. This can influence the quality and effect of the Complainant’s work. The Respondent did not oppose the application.

The Complainant attended the hearing and gave evidence under affirmation. He made detailed legal submissions beforehand.

He outlined that he first believed the probation period in his contract was a mistake as there were a number of mistakes contained in the draft presented to him, including his salary scale. When he went for mortgage approval he discovered this the 12 month probation period would be a significant issue and he sought to clarify the situation with the Respondent but they were clear it is not a mistake and that they would not change it.

The Respondent’s representative made oral arguments and detailed written submissions.

The Respondent’s HR Manager and Secretary both gave evidence under affirmation. They explained that the contracts were set be a sectoral bargaining arrangement and that they considered the probation period proportionate. How probation is managed is up to each person’s line manager.

Terms of Employment (Information) Act, 1994 ( CA-00061468-001 )

Section 6D of the Act provides that:

 (1) Subject to this section, where an employee has entered into a contract of employment with an employer which provides for a probationary period, such period shall not exceed 6 months.

(2) The probationary period of a public servant shall not exceed 12 months.

Both parties accepted that the Complainant is a public servant and that a 12 month probation period was in compliance with this act.

Protection of Employees (Fixed-Term Work) Act, 2003 ( CA-00061468-002 )

The Complainant has advanced two arguments under this act. The first is that his probation clause constitutes less favourable treatment when compared with permanent staff. The second is that it is disproportionate to the overall length of the contract.

Issue One- Comparative Treatment with Permanent Employees.

Section 6 of this act provides that:

1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

All permanent contracts issued by Respondent contain a probation period of 12 months. Therefore, all permanent employees are subject to the same probation period as the Complainant. The Complainant advanced an argument that his probation period amounted to 50% of his employment period with the Respondent. For a permanent employee to experience the same they would need to be subject to a probation period of 15 years.

I do not accept that the Complainant has established that he has less favourable conditions on employment than a permanent employee on the basis of the above. There is a separate section to the legislation which deals with a probation clause being proportional to the length of a fixed term contract.

Issue Two- Proportionate

Section 9A of this act provides that:

9A. (1) Notwithstanding section 6D of the Terms of Employment (Information) Act 1994 , where a fixed-term employee has entered into a fixed-term contract with an employer which provides for a probationary period, the length of such probationary period shall be proportionate to the expected duration of the fixed-term contract and the nature of the work.

(2) Where an employer proposes to renew a fixed-term contract for the same functions and tasks, the fixed-term contract shall not be subject to a new probationary period.

(3) A word or expression that is used in this section that is also used in Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 201910 on transparent and predictable working conditions in the European Union has, unless the contrary intention appears, the same meaning in this section that it has in that Directive.”.

This amendment stems from Directive (EU) 2019/1152 on transparent and predictable working conditions. The stated purpose of the directive is to promote more transparent and predictable employment while ensuring labour market adaptability. I am of the view that I should consider these aims in deciding whether a probation period of a fixed term contract is proportionate to the expected duration of the contact.

Firstly, it has to be accepted that an employer has a right to prescribe a probation period when hiring an employee. This allows the employer to consider whether an employee is a good fit and to dismiss them quickly if the relationship is not working out.  It also facilitates them monitoring and correcting the employee’s performance early on.  It is an obviously necessary part of labour market adaptability and the legislation explicitly approves of an employer’s right to set a probation period.

However, probation periods are entirely contrary to the goal of providing predictable employment for employees. At a minimum predictable employment means an assurance that a person knows they cannot to be dismissed on short notice with minimal reasons, which is what a probation period allows an employer to do.

As such the in considering whether a probation period is proportionate to the length of the contract I must be cognisant not only of the proportion of the contract that is spent under probation but of the employers reasons for that length.

In the Complainant’s case their probation period is set as 12 months, and their total contract length is 24 months.  The Respondent has outlined a general belief that this is proportionate. They point out that they do set shorter probation periods where a contract is less than 12 months.

In evidence they outlined that the position regarding contracts was set by a sectoral bargaining agreement between the representative body of the various Institutes of Technology and unions. Arising from this process a series of template contracts were agreed. All contracts were set with a probation period of 12 month except for fixed term contracts of less than 12 months. It is not entirely clear when these rules regarding the contracts were agreed but they could be more than 20 years old.

Obviously, a probation period of 12 months out of a 24-month contract is high. Even before the recent amendment to the legislation normal probation periods for permanent posts were 6 to 9 months. This does not automatically make the Complainant’s probation period disproportionate, but it does put the onus on the Respondent to show how it is not. 

The Respondent has provided an explanation as to how the 12-month probation period came about, in that it was set by a sectoral agreement. They have not provided any justification for the probation period. There is nothing related to the assistant lecturer role that was identified as requiring such a long period of probation. They did not dispute the Complainant’s evidence that he has never even received a performance review with his manager and that there is no structured probation policy in operation where an employee is assessed against stated goals. Their probation period appears to be just a threat of sudden dismissal which hangs over the employee for a period of time. It is not grounded in any process to monitor performance or provide feedback.

 In the circumstances I find that the Complainant’s probation period is not proportionate.

Redress

Section 14 of the act gives me the power to do one or more of the following:

(a) declare whether the complaint was or was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to reinstate or reengage the employee (including on a contract of indefinite duration), or

(d) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment

The Complainant outlined a number of times that he did not want any compensation and that this case was not about money. However, in the circumstances I believe there is a public policy reason to order compensation. The Respondent’s standard fixed term probation clause either needs to be redrafted or underpinned by policies which justify it as proportionate. By ordering compensation, even a low amount, this decision will give them a degree of impetus to update their position to avoid other claims.

 I can also require the employer to comply with the relevant provision, that is section 9A.1, by ordering that the Complainant’s probation be reduced to a proportionate period of time. In the circumstances I am satisfied that a 6-month probation period is proportionate and that this would have expired on the 21st of March 2024.

CA-00061468-001

I find that the complaint is not well founded.

CA-00061468-002

I find that the complaint is well founded. I direct the Respondent to pay the Complainant €1000 in compensation. I direct that the Complainant’s probation period is reduced to 6 months from the date of his commencement with the Respondent.