An employee is generally not permitted to take a claim for unfair dismissal under the Unfair Dismissals Acts 1977 to 2015 unless they have acquired 12 months continuous service with their employer. Most contacts of employment will contain a six-month probationary period, which can be extended for a further period not exceeding 12 months. Accordingly, an employee who has not yet completed their probationary period is precluded from bringing a claim for unfair dismissal. If an employee finds themselves in the unfortunate position of being dismissed during their probationary period, they have the option to bring a claim for unfair dismissal under the Industrial Relations Act, 1969 (as amended) or a claim for wrongful dismissal. Unlike the Unfair Dismissals Acts 1977 to 2015, there is no requirement to have acquired 12 months service.
Unfair Dismissal under the Industrial Relations Act 1969 (as amended)
Section 20(1) of the Industrial Relations Act, 1969 (as amended) permits an employee with less than one year of service to take a claim for unfair dismissal in the Labour Court. This claim is most often taken when an employee has been dismissed in circumstances where the employer has not implemented fair procedures and natural justice when dismissing the employee. It is important to note that an employee may not be entitled to the full suite of the company’s grievance and disciplinary policies and procedures during their probationary period. In fact, more often than not, the contract of employment will specifically state that these policies do not apply during this time. This however does not mean that an employee does not have the right to fair procedures and natural justice upon termination of employment during their probationary period.
The right to fair procedures while on probation has been affirmed by the court on numerous occasions and most recently in the case of Beechside Company Limited T/A Park Hotel Kenmare v A Worker. In that case, the claimant, a former General Manager of the hotel, had been employed for two weeks and was dismissed without warning when he was called to a meeting with the Managing Director of the hotel who told him that things were “not working out.” The Labour Court held that the employee was denied natural justice in his dismissal and that the procedures adopted in the termination of his employment were seriously flawed. The court recommended that the employer pay €90,000 to the employee in full and final settlement of the claim.
This case emphasises the obligation on an employer to implement natural justice and fair procedures upon termination of the employee even in circumstances where the employee is still on probation. This may include putting the employee on notice of any performance issues, informing the employee that their employment is at risk, affording the right to representation, for example a colleague or a union representative, providing the employee with reasons for the dismissal and allowing the employee to reply.
If an employee succeeds in a claim for unfair dismissals under the Industrial Relations Act 1969, the Labour Court can issue a non-binding recommendation. Although such a recommendation is unenforceable, reputational damage may occur in the event that it is not followed.
An employee may take a claim for wrongful dismissal during their probationary period as there is no requirement to have accrued 12 months service. Wrongful dismissal is governed by common law rather than statute and is based on the contract of employment between the parties. A wrongful dismissal occurs where the employer fails to comply with an implied or an express term in the contract of employment, or where little or no notice of dismissal has been given to the employee. In such circumstances, the employee may sue for breach of contract in the civil courts.
In terms of notice, the employee’s contract of employment will usually specify the notice period but if it does not, the minimum notice periods under the Minimum Notice and Terms of Employment Acts 1973 to 2005 will apply. Unlike a claim for unfair dismissal which is taken in the Workplace Relations Commission, a claim for wrongful dismissal is taken in the Circuit Court or the High Court (depending on quantum). In a case for wrongful dismissal, the damages the civil courts can award are limited to the notice that would have been payable to the employee. In the event that there is no provision in the contract of employment, the court will infer a reasonable notice period.