Retail News|March 2021|www.retailnews.ie|59
Employment Law
Probation and fair procedures Barry Reynolds and Jenny Wakely, specialists in employment law with DAC Beachcroft, examine the extent to which fair procedures are required during probation. ONE of the primary purposes of the probationary period is to assess the performance and suitability of a new recruit. Dismissal during an employee’s probationary period is often regarded as relatively safe because an employee will not have accrued a year’s service, which, subject to limited exceptions, is a prerequisite for bringing an Unfair Dismissal claim. Dismissals, therefore, during probation, can for the most part be effected without running the risk of an Unfair Dismissal claim. However, employees can take other types of claims in respect of alleged mistreatment of their probationary periods. It may be that the Unfair Dismissal risk can be excluded but there remain instances in which an employer could be required to defend their approach, including to demonstrate that they applied adequate procedural fairness. In this piece, we examine the extent to which employees are entitled to fair procedures in the context of probation and the risks of not treating staff fairly or in accordance with the employment contract and the relevant policies. There are two fora in which these kinds of dismissals may be challenged. The less commonly availed of one is the High Court. The Workplace Relations Commission (“WRC”) and Labour Court are the more likely places where these issues are resolved. We firstly summarise the issues which have recently arisen in claims to the WRC and Labour Court.
persuasive. Many employers correctly exercise caution in view of the potential adverse publicity and impact on employee relations in addition to the potential costs of meeting any such recommendations. One of the most striking examples of this kind of complaint was the October 2018 Labour Court decision in Beechside Company Limited T/A Park Hotel Kenmare v A Worker (LCR21798). It drew a lot of publicity, largely due to the substantial recommended award of €90,000. The complainant was a General Manager of the Hotel. He was dismissed during his probationary period and took a claim not for Unfair Dismissal, but rather under the Industrial Relations legislation. The Labour Court found that the hotel had failed to follow fair procedures prior to dismissing the manager. For example, it failed to warn him that his employment was in jeopardy; he was not provided with reasons for his dismissal; and he was not afforded an opportunity to reply. The Labour Court noted that:
Claims under the Industrial Relations legislation Employees with less than one year’s service can bring a complaint to the WRC and ultimately the Labour Court under the Industrial Relations Acts. In this context, such complaints, broadly speaking, canvass whether or not the employee has been treated unfairly. They cannot result in legally binding awards and the outcome cannot be enforced in the same way as an Unfair Dismissal award would be. Rather, the outcome would be a recommendation. Such recommendations can be
It is not an isolated case. It has been reiterated in subsequent decisions, including in a recent decision of the Workplace Relations Commission (“WRC”) in January 2021 in Restaurant Manager v Accommodations and Food Service (ADJ00026838). In that case, the complainant was dismissed by his employer with immediate effect following an ultimatum from the complainant’s fellow employees. He had seven months’ service. He appealed his dismissal, but his employer failed to respond to his appeal. The Adjudication Officer found that the
“Where an employee is considered unsuitable for a permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.”
