Beechside Company Ltd t/a Park Hotel Kenmare V A worker (LCR 21798)
There is a common misconception that fair procedures need not apply when someone is being dismissed while on probation. This misconception generally arises from an employee's contract and where it attempts to exclude the application of a company's usual disciplinary procedure while an employee is on probation. This recent Labour Court recommendation reiterates that fair procedures should not be diluted when terminating someone during their probationary period.
The claimant alleged he had been headhunted as general manager for the respondent's hotel. He was then dismissed without notice less than 3 months later. He was called to a meeting of which he had no advance notice, informed that it wasn’t working out and told to leave with immediate effect. The respondent employer relied on the provisions of the employment contract which provided unequivocally that either side could terminate the employment contract with notice during the probationary period.
The Labour Court found that if an employee is found to be unsuitable during a probationary period then an employer has a right not to retain them but a decision of this nature can only be carried out where an employer adheres to fair procedures. The Court found that fair procedures were not applied in this case as the employee was not provided with any details of any performance issues, there was no advance warning that his job was in jeopardy, he wasn’t afforded the right to representation, there were no reasons for his dismissal and he was not given a chance to reply to the allegations. It found that there was no doubt but that the claimant's reputation had been seriously damaged by the actions of the employer. Taking into account the salary of the claimant, the Court recommended that the employer pay €90,000 to the claimant. As the claimant here had less than one years' service his avenue of redress was to the Labour Court under the Industrial Relations Acts. The Court can make a recommendation however this is not binding on the employer.
The case is a reminder that fair procedures must be applied at all stages of the employment life cycle. Where a contract is silent on whether an employer can immediately dismiss then the most cautious route is for the company to provide some minimum level of natural justice/procedural fairness rights otherwise it may find itself exposed to a costly claim and adverse publicity.