Probationary Dismissal
Court of Appeal Overturns Decision on Probation Dismissals
On the 16th February 2021 the Court of Appeal issued their decision concerning Probation dismissals, in O'Donovan -v- Over C Technology Limited & Anor IECA 37 [2021] and overturned a High Court decision, providing much need clarification in relation the law and dismissal during probationary periods.
The High Court Hearing granted injunctive relief and held employees right to fair procedures were “not confined to cases where the dismissal was by reason of an allegation of misconduct" but also applied to cases of “poor performance" dismissals. This was done despite the fact that Mr O’Donovan was still well within his contractual probationary period.
The Court of Appeal held the High Court failed to give adequate weight to fact that Mr O’Donovan’s dismissal occurred during the probation period. In doing so the CoA stated that during the period of probation, all parties must be free to terminate the employment for any or no reason and, importantly, a dismissal for poor performance does not attract the employees right to natural justice and fair procedures, whereas dismissal for misconduct would.
This case highlights the need for employers to conduct adequate performance reviews of new employees during the probationary period, and to act on such issues in a timely fashion.
It should be born in mind that often performance issues and misconduct issues are often closely related and therefore may be difficult to distinguish between the two. Further employees dismissed during probation may still have redress under the Industrial Relations Acts, and the Unfair Dismissals Act, in certain specified cases such as for trade Union Activity, Equality grounds or for having made a protected disclosure.
Where an employer is seeking to dismiss an employee even during probation it is advised they seek professional advice before doing so.
