Labour court recommends €90k to hotel manager who was dismissed on probation
 

There is a misconception that no fair procedures or process is required when managing a problem employee during their probationary period. Some businesses mistakenly believe that they can say to an employee that it is not working out and ask that employee to leave with immediate effect and without informing them of the reasons for the dismissal or give them the opportunity to improve.

 

In the recent Labour Court case Beechside Company Limited T/A Park Hotel Kenmare vs A Worker the employee was hired in January 2018 as a general manager on a three year contract and they had relocated from Dublin to Kenmare. On 27 April he was dismissed without warning when he was informed that “it was not working out”. He took a case under the Industrial Relations Act claiming he was unfairly dismissed. The Labour Court heard both sides and made a recommendation that the employer pay the employee €90K.

 

The Labour Court made this recommendation based on the following:

  • The employee was not informed of any performance issues throughout his time with the hotel
  • He was not given any warning that his role was in jeopardy
  • He was not afforded the right to representation
  • He was not given a reason for his dismissal
  • He was not afforded the right to reply.

The Labour Court noted that the employee “was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000,” and whilst they accept that a business has the right not to retain an employee during the probationary period, the Court stated that “this can only be carried out where the employer adheres strictly to fair procedures.”

 

How can businesses ensure they follow fair procedures when managing a problem employee during probation and avoid a claim under the Industrial Relations Act or potential a claim under the Equality Act?

 

The first step is to hold regular review meetings. These could be a mixture of weekly or bi-weekly informal chats and formal review meetings that could be held on month one, month three and prior to the probationary period ending. The benefits of these meetings are:

  1. They will help you assess the employee’s performance and how they work with the rest of the team
  2. To address any conduct or absence issues
  3. To minimise the risk of an employee passing their probation without any review meetings.

If the employee is not working out, we have a recommended three step process that follows fair procedures without having to use the full disciplinary process. These are:

 

Stage 1-The ‘needs to improve’ stage

  • Employee is invited to a formal probationary review based on any performance/conduct/attendance issues
  • Ideally to be initiated if informal meetings show an area which needs improvement
  • Documentation given in advance
  • Right to representation (may decide against this at this point)
  • Timeline for improvement determined (ideally 1 month)

Option – Consider extending the probation if needed. Ensure you have a clause that allows you to extend the probationary period

 

Stage 2-The ‘at risk’ stage

  • Employee’s performance/conduct/attendance has not improved by the agreed date
  • Second formal probationary review initiated
  • Documentation given in advance
  • Right to representation
  • **KEYWORD-AT RISK - Employee must be aware that their continuation of employment is at risk/at risk of not passing their probation
  • Revised timeline for improvement determined (ideally 1 month)

Option 1: Extend probation and/or

Option 2: Formal warning

 

Stage 3- The ‘final’ stage

  • Employee’s performance/conduct/attendance has once again not improved by the agreed date
  • Third probationary review initiated
  • Documentation given in advance
  • Right to representation

Option 1: Further warning and extend probation (based on individual circumstances) and/or

Option 2: Terminate employment

  • Right to appeal termination

If you have concerns about an employee on probation and would like further advice please contact Helen 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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In this issue
SFA E-zine - The Tuesday Edition
Last chance to attend the SFA Annual Lunch 2018
Labour court recommends €90k to hotel manager who was dismissed on probation
Statement to the Seanad Public Consultation Committee
New Ibec Quarterly Outlook forecasts strong growth
Call for ambitious female entrepreneurs who want to scale their businesses
SFA Annual Lunch 2018
SFA Webinar: Irish manufacturing sector
Save the date: Member Christmas evening
Online GDPR training