Dismissal During Probation
Probationary Dismissal
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Crushell & Co employment solicitors have extensive experience in advising both employers and employees on all aspects of dismissal during the probationary period.

For your informational purposes, please see below a number of cases, decisions and determinations, of the Workplace Relations Commission (WRC) and Labour Court, relating to dismissal during the probation.

Speak to one of our Dublin based specialist employment solicitors to determine how we can best assist you with your probationary dismissal matter.
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Dismissal During Probation - Industrial Relations Act

Probationary Dismissal Cases and Claims under the Industrial Relations Act 

Legal Options when Dismissed during Probation


For many employees, dismissal during their probationary period can often be a difficult and stressful time. Many employees feel aggrieved that they were not given sufficient training or mentoring to help them improve on the job. In some circumstances, the dismissal can come as a total surprise to an employee, who otherwise, considers themselves to be adapting well to the new working environment. In those circumstances, employees will often seek legal recourse against their former employer. As employees dismissed during the probation period will not have 12 months’ service, they are unable to avail of the provisions of the Unfair Dismissal Act. Notwithstanding that, certain limited options are available under the Industrial Relations Acts.

Dismissed during Probation without Warning


In C & W O’Brien Architects v A Worker (LCR22301), the Labour Court was required to examine a case relating to a worker who commenced employment on 06 January 2020 on a salary of €70,000 but was summarily dismissed on 17 February 2020. At the time of the Labour Court hearing, the employee had been unable to find alternative employment since his dismissal. The employee’s contract of employment provided for a probationary period of 6 months. According to that same contract of employment, the notice period during the probationary period was 1 week. Although the contract of employment did refer to a company disciplinary policy, the employee was never provided with a copy of same. In summary, the employee was summarily dismissed by his new employers’ CEO on 17 February 2020 without any prior warnings or indication that either his conduct or his performance was unsatisfactory. The worker had pointed out to the Labour Court that he had left a safe and secure role, taking a chance on this new appointment, and therefore he was disheartened by the manner in which he was dismissed. The Labour Court agreed and held that an employer is not relieved of their obligation to act fairly during a probationary period. The Labour Court pointed to the code of practice in grievance and disciplinary procedures made under the Industrial Relations Act, must be complied with before any decision is taken by an employer to dismiss an employee during his/her probationary period. The Labour Court noted that the new employer had failed to have any regard to the code of practice when it dismissed the employee during his probationary period without any due process whatsoever. The Labour Court recommended that the employee be paid compensation of €60,000 together with the monetary value of his accrued leave of €754.31. This significant sum was recommended having due regard to the employee’s agreed salary and the losses he accrued arising from the date of his dismissal.

Dismissed during Probation while on Sick Leave


In A Worker v A Garage (ADJ00024817), the WRC examined the case of an apprentice mechanic who commenced employment with a garage on 17 June 2019 but was later dismissed by letter on 26 July 2019. No notice was provided. The employee asserted that he did not receive a contract of employment or any written terms and conditions of employment. Furthermore, he noted he had never received any manual handling or safety training. On 11 July 2019, an incident occurred between the employee and a colleague during which the employee concerned was mocked for being dyslexic and requiring special assistance. As a result of this altercation, the employee went on sick leave due to stress and upset, a doctor’s note was subsequently sent to his employer. During the sick leave period, on 26 July 2019, a letter was sent to the employee from the managing director of the company stating that “we have no choice but to terminate your employment with immediate effect”. The WRC, having carefully considered the position of both parties and based on matters carefully outlined, found that there was a complete absence of any due process by the employer leading to the immediate dismissal of the employee due to his absence and noted performance issues. The WRC went on to note that a probationary period is a key part of an initial contract relationship between an employee and their employer to ensure that both parties are satisfied as to the suitability of an individual to a defined role over a specified period of time. The WRC noted that the employee did not receive any fair indication as to the consequences of not performing to expectation, even via an abridged process due to the short length of service. Accordingly, the employee was awarded €1,200 as an appropriate compensation in the specific circumstances of this case.

Dismissal or Resignation during Probationary Period


In A Pharmacy Dispenser Technician v Pharmacy (ADJ00026916), the employee began a trainee pharmacy technician role on 27 January 2020, but the role only lasted a few days. The employee said that the employer terminated her employment on 30 January 2020. The employer denied this saying that the worker resigned. However, it was noted by the WRC that the employee’s notice period had been paid in or around the disputed dismissal date, leading to the conclusion that the employee could only have been but considered dismissed following an argument between the parties, the facts of which were contested. The WRC recommended that the employer pay the employee €450 being the equivalent to one week’s pay in recognition of the worker’s accrued annual leave.

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