Probationary Period Dismissal

In a High Court decison (Buttimer v Oak Fuel Supermarket Ltd) earlier this year, Mr Justice Dignam confirmed the position established by the Court of Appeal in the case of Donal O ‘Donovan v Over-C Technology Ltd in 2021, that employers can effect a dismissal for no reason duing a probationary period and without due process, provided there are no underlying issues of misconduct, which would afford the principles of natural justice and require an appropriate review and appeal process.

Mr Justice Dignam stated: “The authorities are clear that an employee may be let go during her probationary period for any reason (including poor performance) or no reason without any obligation to afford fair procedures. However, it is equally clear as a matter of general principle that while at common law an employer is free to dismiss an employee for any reason or no reason, where the dismissal or termination is for misconduct, the employer is obliged to comply with fair procedures.”

In O’Donovan, the reason for dismissal related to not meeting required standards of performance, and the dismissal was effected on foot of a specific clause in the contract of employment which provided that the probationary period could be terminated without reason. Mr O’ Donovan was also paid the relevant contractual notice period that he was entitled to.

In the Buttimer case, which granted interloctury orders preventing Ms Buttimer being replaced and any communication being published about her not being employed any longer, it was considered that there were issues of misconduct at hand, which should have resulted in fair procedures and the right to respond being applied. The issues in this case related to alleged bullying and harassment and Mr Justice Dignam commented that he was clear these were misconduct matters, and that even when such issues could also be potentially interpreted as performance related, as claimed by Ms Buttimer’s employer, this did not preclude them from being classified as misconduct allegations as well.

Therefore, on foot of the Buttimer and O’Donovan decisions, in respect of probationary period dismissals (or non probationary dismissals), where an employee has not accrued 12 months service to gain protection under the Unfair Dismissal Acts, and the contract of employment contains a clause permitting dismissal without reason, these decisions will certainly support such dismissals if challenged. This is of course not withstanding the option for employees to pursue other avenues available to them, should there be any discriminatory or equality aspect to the dismissal, or via the IR legislation mechanism, which can certainly result in a non-binding recommendation being made when there is clear evidence of lack of procedures being followed.