Termination Of Employment During Probation

• Law Firm: Maples Group
• Subject Matter: Employment and HR, Contract of Employment, Unfair/ Wrongful Dismissal
• Author: Ms Karen Killalea and Ciara Ni Longaigh
• Published date: 31 May 2023

• The recent Irish High Court ("the Court") decision in Anna Buttimer v Oak Fuel Supermarket Limited trading as Costcutter Rathcormac¹ confirms that fair procedures must be applied where an employee is terminated for misconduct during their probationary period.
• The entitlement to fair procedures arises during probation even where the contract of employment expressly excludes the application of company disciplinary procedures during the probationary period.
• Termination for performance reasons during probation does not engage an implied right to fair procedures.
• Employers must be able to evidence their decision to terminate by reason of performance during probation by reference to contemporaneous notes or records.
• Performance monitoring during probation remains key and should be accurately documented and shared in real time with the employee.

Case Background

The Plaintiff started working for the Defendant at its retail premises on a probationary basis on 7 March 2022. Within a couple of weeks, another employee alleged that the Plaintiff had bullied them and others.

The employer did not have an in-house human resources function. On 1 April 2022, the Defendant engaged the services of an external human resources consultancy firm to carry out a formal investigation into these allegations.

The Investigation

A formal investigation commenced in accordance with the Defendant's Dignity at Work policy and based on a written Terms of Reference. While the investigation was ongoing, the Plaintiff was promoted to the position of store manager and signed her contract of employment on 25 April 2022.

The contract of employment provided for a six-month probationary period. It also stated that "the standard disciplinary procedure will not be used during the probationary period".

The Defendant received further complaints of alleged bullying from co-workers about the Plaintiff in May. These complaints were similar to the earlier complaints that were the subject of the ongoing investigation.

Dismissal

The Defendant invited the Plaintiff to a meeting on 17 May 2022. It was not an investigation meeting or a disciplinary meeting. The Plaintiff was not offered the right to representation. They were not advised of the purpose of the meeting in advance. The Defendant communicated to the Plaintiff in that meeting that their contract of employment was terminated because they had not successfully passed probation. There was some discussion about the Plaintiff potentially taking up a new...