The Unfair Dismissals Acts 1977-2015, in most cases, requires an employee to possess 12 months’ continuous service in order to pursue a claim for unfair dismissal. Where the employee has less than 12 months’ service, he/she may take a claim under the Industrial Relations Acts (the “IR Acts”). In accordance with the IR Acts, the Labour Court is limited to making a non-enforceable recommendation to the respective parties.
Background
In this case the Complainant was employed as a General Manager under a 36-month fixed term contract in the Park Hotel. During the initial probationary period of his contract, the Complainant attended a meeting with the Managing Director and was dismissed without notice.
The Employer argued that they were entitled to dismiss the Complainant. The contract of employment provided that either party may terminate the contract during the probationary period by giving written notice.
Recommendation
The Labour Court recognised the right of an employer to dismiss an employee during the probationary period. However, it also had regard to the dismissal provisions of the Complainant’s contract of employment.
In light of the above and despite the contract allowing either party to terminate on written notice during the probationary period, the Labour Court nevertheless held that the Employer did not follow fair procedures. The Employer failed to furnish the Complainant with details of any performance issues, no warning was given of the dismissal and the Employer further failed to follow the dismissal provisions set out in the contract of employment.
The Labour Court recommended that the Employer pay the Complainant €90,000 in compensation for the dismissal.
Advice for Employers
In recent years many employers, and their advisors, have operated on the assumption that fair procedures are not required during a probationary period dismissal. Recent decisions of the Labour Court highlight the significance it attaches to fair procedures in all circumstances including dismissal during the probationary period. It has particularly stated that there is a greater onus on employers to implement fair procedures for dismissals with serious reputational consequences.
As defined above, a recommendation of the Labour Court under the IR Acts is not enforceable under those Acts, however there is a reputational risk in refusing to follow such recommendation.
We would advise our clients that even where a contract of employment provides for dismissal on short notice during the probationary period, consideration should be given to the pros and cons of following fair procedures in order to avoid any successful claims for unfair dismissal under the IR Acts.
Contributed by: Jeffrey Greene
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