5 Top Tips: Probation, Unfair Dismissal & The Industrial Relations Act, 1969

A probationary period is a period of evaluation and training, but the advantages of a probationary period are more in terms putting a time reference as to when a decision to retain or dismiss the Employee will be made. The Employer’s actual protection in a probationary period comes more from the fact that the Employee has not yet gotten sufficient service to enable him/her to take a case under the Unfair Dismissals Acts.

The Unfair Dismissals Acts 1977-2001 are intended to provide employees with legal protection from being unfairly dismissed from their jobs and to provide redress for any Employee who is found to be unfairly dismissed.  It is a misconception among Employers that a Company can dismiss an Employee without due process while the employee is still on probation. An Employee who does not have the required one year’s service can make a complaint in relation to the manner of their dismissal under the Industrial Relations legislation. There is no service qualification under this Act unlike the Unfair Dismissals Act 1977-2007 which requires a minimum period of one year. Section 20(1) of the Industrial Relations Act, 1969 [as amended] allows for Employees with less than one year of service to take a case for unfair dismissal.

A Labour Court decision in Herbert Park Hotel and A Worker highlighted the standards for treating probation in the workplace when the Employee was dismissed after two weeks without any adequate explanation of the reason for her dismissal. The Employee applied for the position of Conference and Banqueting Co-ordinator in the Herbert Park Hotel, although it meant she was paid less than her previous job.  She commenced her new job on the 11April 2005 and received two days basic training while on the job. The employee stated that in her first week she was approached about changing her appearance, wearing more make-up and high heels, and she complied with this request. The employee stated that apart from finding her Line Manager both difficult and unapproachable she had no problems with the role.  On the 28April 2005 the Employee was asked to attend a meeting and was told that she was being dismissed with immediate effect.  When the Employee asked why she was told it was due to cut-backs in the Hotel.  The Employee referred her case to the Labour Court on the 9 June 2005, in accordance with Section 20(1) of the Industrial Relations Act, 1969. The Employee received little training but was expected to perform her job to a high standard after two days. The Employee was given no indication that she was to be dismissed and there had been no complaints regarding her work.  After she was dismissed the Employee noticed a number of jobs being advertised in the Hotel including one in the Sales and Marketing Department where she worked. The Employee’s contract of employment provided for a six-month probation period and, in the Labour Court's view, the Employee was entitled to expect that she would have had the benefit of that period to establish her suitability for continued employment. The employee was awarded €15,000 in settlement of her claim.

5 Top Tips

The below are tips on how to ensure that your Company is protected should a claim of unfair dismissal arise taken under the Industrial Relations legislation due to a poorly managed probation process.

• Policy: Have a clear Probation Policy in place, separate to the Disciplinary Policy. This should clearly define what length the probation period is, to what length it can be extended if performance is poor and needs improving and what notice period is required during this probation period.
• Contract: The employee must know in advance that their employment is subject to probation. The employment contract should specify a defined probationary period, which can be extended up to best practice length of 11 months. Any offer letter extended to the employee should also confirm the probation period attached to the role.
• Induction: The new employee should be briefed on the contents of the Employee Handbook and sign an attendance sheet for such a briefing/training session in addition to acknowledging receipt of the Company handbook/policies and procedures. This will provide a paper trail for the Company that the employee was informed of the policies, had an opportunity to ask questions and has agreed to be bound by the company’s policies.
• Continuity: It is advised that probation is a continuous process. A common issue The HR Suite encounter is leaving the management of the probation process until it is too late i.e. month 10 when the probation outlined in the contract is 11 months.  It would not be deemed fair to start the process at 10 months and finish up in advance of the 11 month mark, bearing in mind the one week of notice the Employee is entitled to. It is advised all Employers are proactive in managing probation for all Employees.
• Paper Trail: The operation of a good probation process requires the maintenance of adequate records.  It is important to have a paper trail documenting each step of any probation including invitation letters. During the meetings it is important to document the discussion and to ensure that follow up documentation is sent confirming what was discussed in the meeting. Remember if it’s not in writing it didn’t happen.