I have written a number of blog posts about probation and the options open to an employee who has been dismissed whilst on probation.
The general position is that you cannot bring a claim for unfair dismissal under the unfair dismissal acts for section 2(1) Unfair Dismissals Act, 1977 sets out a number of categories of employees who are excluded from the protection of the act as follows:
2.—(1) This Act shall not apply in relation to any of the following persons:
(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,
You will note that the act does not apply to employees with less than 12 months’ continuous service. Accordingly if you are fired with less than 12 months’ service you can almost alwasy forget about the unfair dismissals act, 1977.
Moreover, section 3 of the same act rules out employees on probation for it states:
3.—(1) This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training—
(a) if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract, or
(b) if his contract of employment was made before the commencement of this Act and was not in writing and the duration of the probation or training is 1 year or less.
(2) This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is undergoing training for the purpose of becoming qualified or registered, as the case may be, as a nurse, pharmacist, health inspector, medical laboratory technician, occupational therapist, physiotherapist, speech therapist, radiographer or social worker.
Recently, however, a case was brought by a former manager of the Park Hotel in Kenmare to the Labour Court. You may have heard of this hotel as it is owned and run by the high profile Brennan brothers who present that television programme where they go around telling other small business owners how to develop their small hotels or bed and breakfast business.
In this case, however, the general manager of the Park Hotel was employed on a 36 month contract and was dismissed during the probationary period without fair procedures.
Specifically the man was not told of any performance issues, no warning was given that his job may be at risk, no opportunity for representation was afforded to him, he was not given any reasons for the dismissal, and he was not given a right to reply.
The hotel relied on the contract of employment which clearly stated that either party terminate the contract by giving written notice.
How can the employee bring this claim to the Labour Court if the Unfair Dismissals Act, 1977 excludes employees who have less than 12 months continuous service?
Labour Court and Industrial Relations Acts
The employee can bring a claim for unfair dismissal to the Labour Court under the Industrial Relations Act, 1969. This is precisely what happened in this case involving Francis Brennan’s Park Hotel and the Labour Court recognised that employer was entitled to dismiss the employee during the probationary period.
The Labour Court found, however, that the employee is still entitled to fair procedures and natural justice and in this case found that this did not occur.
Accordingly, the Labour Court recommended that the employer pay €90,000 in compensation for the unfair dismissal. Note that this is a ‘recommendation’ and is not legally enforceable.
Why would an employee go through this procedure and perhaps incur legal costs if he only ended up with an unenforceable recommendation which the employer can ignore?
Only the employee can answer that question but he may have hoped that the publicity surrounding the case may have persuaded the employer to settle his claim to avoid reputational damage to the hotel.
He may also have hoped that the employer would accept the moral or persuasive authority of the Labour Court’s recommendation and pay out.
Or he may have taken the case on a point of principle and to restore his good name and professional reputation if he felt that they were damaged as a result of the termination.
If you are an employer you may or may not, depending on your business, be concerned about reputational damage or the likelihood of industrial relations action on foot of a Labour Court recommendation which you may intend ignoring.
If you are concerned then you should ensure fair procedures and natural justice in the termination of any employee’s employment, even those on probation.
If you are an employee with less than 12 months service you may consider going this ‘industrial relations act’ route to the Labour Court; but you may end up with an unenforceable recommendation.
Read the full decision of this case here.