I can dismiss an employee at any time before they have 12 months service-right?

There is a perception amongst many employers that once an employee is still on probation or has less than one years service that an employee who is dismissed has no recourse against the employer.  However an employee with less than one years’ service can bring a claim under the Industrial Relations Act, 1969 (as amended) alleging unfair dismissal. There is no service qualification under this Act. A claim under this Act may either be referred to a conciliation officer of the Labour Relations Commission or to a Rights Commissioner and subsequently on appeal to the Labour Court. However, it is worth noting that, in general, the compensation awarded by Rights Commissioners/the Labour Court under the Industrial Relations Acts tends to be lower than awards of the Employment Appeals Tribunal under the Unfair Dismissals Act and, strictly speaking, is not legally enforceable.

What about an employee on probation?

Contracts of employment that provide for a probationary period can be a very useful tool for employers. A new employee’s performance can be evaluated during the probationary period and, based on the strength of the performance, the employer can make a decision on the employee’s continued employment. 

It is important to note that the placing of a new employee on probation has no legal effect on the employment relationship and that a probationary period itself has no legal standing. A common misconception amongst many employers is that they are entitled to dismiss an employee who is on probation without affording that person the benefit of fair procedures and natural justice. That is not the case.

Unfair Dismissals Acts

The Unfair Dismissals Acts, 1977–2001 entitle employees covered under the Acts to bring a case to the Employment Appeals Tribunal (the “EAT”) in the event that they are unfairly dismissed. The EAT has jurisdiction, under those Acts, to award reinstatement, re-engagement or compensation (up to a maximum of two years’ remuneration). For an employee to be covered under the Unfair Dismissals Acts, he/she must have 12 months continuous service (except in the case of dismissal for pregnancy related matters or trade union membership activities, in which case a claim can be brought regardless of the length of service). This qualifying period lead many employers to believe that an employee with less than one years’ service has no entitlement to issue proceedings against his/her employer; however this is not entirely accurate.  An employer should also be aware that notice periods and accrued annual leave will be included in any calculation of 12 months service.

Other legislation

There is a perception amongst many employers that once an employee is still on probation or has less than one years service that an employee who is dismissed has no recourse against the employer.  However an employee with less than one years’ service can bring a claim under the Industrial Relations Act, 1969 (as amended) alleging unfair dismissal. There is no service qualification under this Act. A claim under this Act may either be referred to a conciliation officer of the Labour Relations Commission or to a Rights Commissioner and subsequently on appeal to the Labour Court. However, it is worth noting that, in general, the compensation awarded by Rights Commissioners/the Labour Court under the Industrial Relations Acts tends to be lower than awards of the Employment Appeals Tribunal under the Unfair Dismissals Act and, strictly speaking, is not legally enforceable.

Also whilst normally you must have at least 12 months’ continuous service with your employer in order to bring a claim for unfair dismissal. However there are important exceptions to this general rule. If you have less than 12 months’ continuous service you may bring a claim for unfair dismissal if you are dismissed for:

  • Trade union membership or activity
  • Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
  • Availing of rights granted by the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer’s Leave Act 2001. 

Alternatively, an employee (regardless of whether he/she is on probation) and who has been dismissed from his/her employment may issue proceedings at common law for wrongful dismissal/breach of contract in the civil courts (to include injunction proceedings). Again, there is no service requirement to bring such a claim.

Similarly, there is no service requirement for an employee to bring a claim under the Employment Equality Acts 1998–2004. Accordingly, in the event that an employee on probation believes that he/she was discriminated against on any of the nine grounds prohibited by those Acts, he/she may bring a claim of discrimination to the Equality Tribunal. Dismissal based on any of the following 9 grounds for discrimination: gender, civil status, family status, age, disability, religious belief, race, sexual orientation or membership of the Traveller community. So, for example, if you have been employed for less than a year you may not be able to bring a claim under the unfair dismissals legislation, but you may be able make a complaint of discriminatory dismissal. The maximum award of compensation that may be awarded in such a case is two years remuneration.

A probation clause in the contract – a word of caution

The wording of clauses in contracts of employment may sometimes give rise to a possible construction that the probationary period is, in itself, a fixed term within the contract. For example, if a contract were to state that “The first six months of this contract shall be a probationary period” and the employee was dismissed after one month, this may give rise to a claim that the employee is entitled to be paid the balance of five months’ salary. (There has been a District Court finding to this effect). Accordingly, prudent employers should insert a clause in to the contract of employment to the effect that the employment may be terminated by providing a specific period of notice.

Conclusion

The dismissal of any employee should be handled with care. Employers should never assume that they can dismiss or demote an employee on probation without giving that person the benefit of fair procedures and, importantly, an opportunity to improve. Many of the cases brought under the Industrial Relations Acts emphasise the clear need for correct and fair procedures to be followed, even during the probationary period

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4 Responses to “I can dismiss an employee at any time before they have 12 months service-right?”


  1. 1 mapula mokwena November 19, 2011 at 10:50 am

    I was employed by the company and my probation period was from 17 october 2011 till 23 december 2011 and we wrote 1 test and promised to write another cause we failed it but instead of writing I was told that my contract was terminated

  2. 2 Employment Contract January 19, 2012 at 3:12 pm

    You have to consider who it is you are sacking and if they are the kind of person which would go back on you and get legal with you. Make sure that if you have pre agreed anything away from the contract that it has also been put into writing.

  3. 3 edwlexvasqz February 10, 2012 at 7:06 pm

    I am working with this school project. My project is about a software that tracks employees activity online. check our product at http://www.effectivepro.com/?tk=71

  4. 4 Vincent February 29, 2012 at 9:10 am

    What would I do without you, HR Department? Thanks again!


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