Probationary Dismissals And Fair Procedures: High Court Grants Injunctive Relief

Law FirmArthur Cox
Subject MatterEmployment and HR, Contract of Employment, Employee Benefits & Compensation
AuthorMs Louise O'Byrne and Aisling Kerins
Published date19 May 2023

In a recent decision, Buttimer v Oak Fuel Supermarket Limited Trading as Costcutter Rathcormac [2023] IEHC 126, the High Court granted two interlocutory orders restraining an employer from: (i) appointing another person to fill a role left vacant following a disputed dismissal, and (ii) publishing or communicating to any party that the employee was no longer employed, pending the outcome of the full trial.

The employee was employed as Store Manager in the employer's fuel station for a period of approximately two months. Following her dismissal the employee issued proceedings seeking a series of interlocutory orders restraining her employers from;

  1. treating her as other than employed or continuing to be employer by them;
  2. appointing another person in her position;
  3. terminating her contract of employment other than in accordance with her legal entitlement;
  4. communicating to any other party that she is no longer employed by them; and
  5. requiring her employer to pay her salary.

Under the terms of her employment contract, the employee was subject to a probationary period of six months. During this probationary period, she could be dismissed without cause on one week's notice. Within two weeks of her start date, allegations were made against the employee by co-worker. An investigation was launched in accordance with the employer's bullying and harassment policies and she was informed that the disciplinary procedure may apply if the allegations were substantiated. While the investigation was ongoing the employee signed a new contract of employment which stated that the standard disciplinary procedures did not apply during the probationary period. Further complaints were made against the employee a few weeks later. Shortly after the second set of complaints were lodged, the employer terminated the employee's employment. The employee claims she was dismissed as a direct result of the allegations made against her and the alleged misconduct. She argues that she was not afforded fair procedures and so was wrongfully dismissed. The employer rejects this version of events. They contend she simply failed her probation because of poor performance but that even if she had been dismissed for misconduct, the disciplinary procedure did not apply during her probationary period.

Rather than make a ruling as to the facts and entirety of the of the case it was for the Court to determine whether to order the reliefs sought should be granted pending the outcome of the full trial of...

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