Fair Procedures Are Required When Dismissing An Employee During Probation

Author:Mr Kevin Langford, Rachel Barry and Niamh Fennelly
Profession:Arthur Cox
 
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Late last year, the Labour Court made a non-binding recommendation under the Industrial Relations Acts that a hotel manager be awarded €90,000 in compensation following his dismissal during his probationary period. This recommendation, though non-binding, serves as a timely reminder to employers that dismissing an employee during a probationary period is not risk-free.

In Beechside Company Limited t/a Park Hotel Kenmare v A Worker, the claimant alleged that he was dismissed "without warning" after just three months in the role, when the managing director of the hotel called him to a meeting, informed him that "this was not working out" and asked him to leave immediately. The hotel argued that the contract of employment unequivocally provided that either party could terminate the contract by giving written notice during the probationary period.

The Labour Court noted that the contract of employment expressly stated that all dismissals would be carried out in accordance with the Company's disciplinary procedure, which was also incorporated into the contract, and set out a number of procedural protections contained therein.

The Court found that the procedures adopted in terminating the claimant's employment were seriously flawed, and that he was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146 of 2000). While the Court accepted that an employer has the right, during a probationary period, to decide not to retain the employee in employment, it stated that dismissal could only be lawfully carried out where the employer adheres strictly to fair procedures. It noted that this requirement of procedural fairness was rooted in the common law concept of natural justice.

The Court was satisfied that the claimant was not provided with a warning or details of any performance issues, and that he was not afforded an opportunity to be represented, a right to reply or provided with reasons for his dismissal. On these grounds, the Court was satisfied that he was denied natural justice. It recommended the award based on the level of remuneration the claimant was receiving (which was not disclosed in the decision).

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