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Blog  »  July 2012  »  Dismissal during Probation - Blog
Jul 12

Posted by
Ciaran Loughran

Dismissal during Probation

Many employers are of the mistaken belief that if an employee is still in his/her probationary period, that they are not obliged to follow their own disciplinary process in dealing with that employee and can dismiss that employee without due process if they so decide.

In a recent case the Labour Court noted that the employer confirmed that it did not follow it's own disciplinary procedures as it was of the belief that it was not obliged to do so as the Claimant had less than one year’s service. In that case the employee was awarded compensation of €5,000 as the dismissal was found to be unfair on both procedural and substantive grounds. This is well trodden ground for employers and numerous Labour Court decisions over time have established that the employer must follow fair procedures within a probationary period.

The Code of Practice on Grievance and Disciplinary Procedures outlines the principles of fair procedures for both employers and employees and can be taken into account by the Court in assessing any case. Employers are obliged to provide all employees with written details of the dismissal process in operation in an organisation within 28 days of commencement, whether through an employee handbook or separate procedures. It is therefore important for employers to ensure that these established procedures follow best practice and comply with the guidelines outlined in this code. It is imperative for the employers to follow these procedures as set out.

The purpose of a probationary period is to evaluate an employee’s performance in doing a job and potential abilities to determine their suitability for the position. The implementation of this evaluation is a process specific to the probationary period, but as with disciplinary procedures the principles of natural justice must apply. Any shortfall in performance should be discussed and documented during the course of the period. In this way the employee is made aware of the issue and is given an opportunity to improve. A formal performance review meeting should be held between the employee and the manager at the end of the period.

The bottom line is that a probationary period does not give the employer a free hand to ignore their own procedures.


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