€30k award for dismissal during 6 month probationary period – How to dismiss during probation
The former General Secretary of the Irish Postmasters Union was recently awarded €30,000 by a Rights Commissioner for unfair dismissal during his 6 months probationary period.
This begs the question as to how best to manage a performance issue, a conduct issue, or a question of ‘fit’, during probation and how best to dismiss during or at the end of the probationary period if deemed necessary?
Background
The employee in this case commenced employment in August 2009, had his first performance review in October 2009 and a second performance review in January 2010.
He was informed towards the end of January 2010 that the company had reservations about his performance and his probationary period was to be extended by a further 3 months.
When the employee expressed concerns in a letter to his employer about the extension of his probationary period, his contract was terminated and he was paid 3 month’s salary in lieu of notice.
Rights Commissioner Decision
The Rights Commissioner stated that it was the employer’s error in appointing the employee in the first place.
He found that the employer’s decision not to use its own disciplinary procedure or follow the Code of Practice on Grievance and Disciplinary, because the employee was on probation, was misconceived.
The employee was awarded €30,000 on top of the 3 month’s salary in lieu of notice already paid.
Dismissal During Probation
It is advisable to have a Probation Policy, separate to the Disciplinary Policy, which outlines clearly how issues of performance, conduct or ‘fit’ will be handled during the probationary period.
While it is not necessary to apply the full rigours of the Disciplinary Policy during probation, nevertheless, the Probationary Policy should broadly follow the principles outlined in the Code of Practice on Grievance and Disciplinary Procedures and the rules of Natural Justice.
Normally, the employment contract will specify a probationary period, which can be extended up to one year.
However, the probationary clause in the contract of employment should also state specifically, that during probation, the employee is subject to a different procedure i.e. is subject to the Probationary Policy of the company and not the Disciplinary Policy.
In the absence of a Probationary Policy, the employer is advised to follow the Disciplinary Policy.
The Probation Policy should also be provided in the Employee Handbook and the new employee should be briefed/trained on the contents of the Employee Handbook and sign an attendance sheet for such a briefing/training session, as well as sign the Acknowledgement Form in the Employee Handbook to acknowledge receipt and agree to be bound by the company’s policies.
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I presume the case was taken under the IR Act 1990 as the EE in question had less than 12 months service? As such my understanding is that such an award is not binding on the ER? Consequently the ruling is more relevant to unionised enterprises? Perhaps you could clarify this?
Yes, such awards are not binding, however, I have seen a case where the employee arranged the sheriff’s office to write to the employer BEFORE the due date for payment of the award, and the employer paid the award AND the sheriff’s fee. Even the legal people were more than surprised at this turn of events and advised the employer to pay up!