Probation Policy
A recent award of €30,000 for an employee dismissed during probation shows the risks associated with dealing with performance issues during probation.
It is commonly understood that there is little risk arising from dismissing an employee during the probation as the employee will have less than one years service and no rights to Unfair Dismissals.
However, the employee may take a claim to the Rights Commissioner under the Industrial Relations Act.
As we see in this case (employee awarded €30,000 for dismissal during probation) the employer had a number of performance reviews with the employee during the probation period and expressed concerns about his performance.
The employer then decided to extend the probation and, when the employee compalined of this, the employer terminated his employment.
So, even though the employer had documented poor performance through the performance review process, it wasn't enough to prevent a sizeable award being made to the employee
How to Dismiss During Probation
So, how do you dismiss during probation?
First of all, have a Probation Policy, separate to the Disciplinary Policy, which outlines clearly how issues of performance, conduct or ‘fit’ will be handled during the probationary period.
The Probation Policy should broadly follow the principles outlined in the Code of Practice on Grievance and Disciplinary Procedures and the rules of Natural Justice i.e. allow an employee to have a fair hearing and to present their side of the story.
But it is not necessary to go through the full rigours of the Disciplinary procedure.
The employment contract shopuld specify a probationary period, which can be extended up to one year.
In addition, the contract of employment should also state specifically, that during probation, the employee is subject to a different procedure i.e. is subject to the Probationary Policy of the company, and not the Disciplinary Policy.
The Employee Handbook should contain the Probation Policy.
The new employee should be briefed/trained on the contents of the Employee Handbook and sign an attendance sheet for such a briefing/training session, as well as sign the Acknowledgement Form in the Employee Handbook to acknowledge receipt and agree to be bound by the company’s policies.
Next Steps
Through our employment law and HR hotline service, employers can obtain advice on handling issues during probation, disciplinary or any other employee situation.
Our employee handbook and contracts of employment are designed to ensure employers have all they need to manage HR risks, create clarity for employees, and prevent expensive disputes, awards in the Labour Courts and even employee litigation.
Contact us, email us or call us on +353 1 8666426 for more information and to see how we can help you mitigate your risk.