How to dismiss during probation

Friday, March 14, 2014

€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 and dismiss during the probationary period? 

Background 

The employee 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 ‘some reservations about his performance’ and his probationary period was 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 employer terminated his contract 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 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 and 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. Otherwise, the employer would have to follow the Disciplinary policy in dismissing an employee during probation. 

Article provided by Helena Broderick 
Managing Consultant 
CollierBroderick Management Consultants 
W: www.collierbroderick.ie