Probation - potential costs to your business
 

Dismissing an employee on probation without following fair procedures can prove to be very costly. In the case of Embankment Plastics Limited v A Worker (CD/15/267) the company had failed to follow guidance as outlined in the S.I. 146 of 2000 Labour Relations Commission’s Code of Practice on Grievance and Disciplinary Procedures and they did not follow their own disciplinary process when it came to dismissing an employee on probation.

 

Background

A worker was employed by Embankment Plastics Ltd as a Quality Engineer and they commenced employment on 16 February 2015. The employee was placed on a six-month probationary period and their contract was terminated on 27 April 2015.

 

The employer stated in their submission to the Labour Court that the worker performed below the required standard of a Quality Engineer, that they were late for work which included their first day and the contract had been terminated in accordance with the terms of their contract.

 

The employee stated in their case that they were never made aware of any performance issues or that it could lead to a dismissal, that they were asked to work thirty minutes ahead of their shift and stay two hours after the close of business every day and they were unemployed for a long period after their dismissal.

 

Outcome

The Labour Court reviewed all the evidence that was put forward to them by both parties and noted that the company did not follow fair procedures by outlining the following issues:

 

  1. At no stage did the Respondent issue the Claimant with a letter outlining its concerns with the Claimant’s alleged underperformance;
  2. The Claimant was not on advance notice that the meeting he attended on 27 April 2015, and at which his employment was terminated, was a disciplinary meeting;
  3. The Claimant was not advised of his right to be accompanied and/or represented at the meeting of 27 April 2015;
  4. The Claimant was not given advance written notice that he was at risk of having his employment terminated at the aforementioned meeting;
  5. The decision to dismiss the Claimant was communicated by the Managing Director in the course of an uninterrupted meeting on 27 April 2005 as such 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;
  6. The Claimant was not issued with a letter of dismissal confirming the reasons for his dismissal and advising him of a right of appeal.

 

In addition, the Labour Court noted that the company failed to follow its own disciplinary procedures in relation to probation and that its failure to: “adhere to either its own disciplinary procedures or be bound by the provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146 of 2000) because the Claimant was on probation was misconceived

 

They found in favour of the employee and they were awarded €33,419.38.

 

Lessons to learn from this case

There are a number of lessons businesses can learn from this case to avoid the risk of a WRC or Labour Court claim.

 

  1. An employee who is dismissed whilst on probation can still claim for unfair dismissal under the Industrial Relations Act

 

It is sometimes the mistaken belief that an employee on probation can be dismissed immediately without giving a reason or following fair procedures. Whilst an unfair dismissal claim cannot be made under the Unfair Dismissals Act, a claim can be made under the Industrial Relations Act. Therefore, it is very important that businesses are aware that they must follow a fair disciplinary process that includes employees who are on probation. In addition ensure clauses for probation in the contract of employment are in line with the company disciplinary procedure.

 

2. Follow fair disciplinary process

 

Whilst the probationary period allows time to see if an employee is a good fit for the company and to ensure they work to a required stand, companies should ensure they carry out the following when considering dismissing an employee:

1) Has the employee been made fully aware of the formal allegation made against them?

2) Have they been offered the right to reply to the formal allegation made against them?

3) Were they offered the right to representation?

4) Did they receive a full and objective investigation of the allegation?

5) Were they given the right to appeal?

 

SFA have a number of resources relating to managing the disciplinary process on the SFA website including a webinar and a copy of the  S.I. 146 of 2000 Labour Relations Commission’s Code of Practice on Grievance and Disciplinary Procedures which the Workplace Relations Commission (WRC) and Labour Court expect companies to abide by.

 

3.Document in writing

 

It is essential that all stages of the process are recorded in writing from the initial meeting that outlines the issue, minutes of all meetings and review processes right through to the disciplinary process if that occurs. If it is not documented in writing it is almost impossible to prove if a fair process was followed. The WRC and Labour Court rely on documentary evidence when a claim appears before them and when a business documents the performance of an employee it enables them to objectively see if the employee is a suitable fit for the role.

 

If you have concerns about an employee on probation and would like further advice please contact Helen Quinn at SFA on 01 605 1668 or at helen.quinn@sfa.ie or visit our HR and Employment Law advice section on www.sfa.ie

 

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