In the past, employers freely let staff go at any stage during probation without any substantive process once they formed the view that they were not going to be suitable.
Nowadays it’s really important to realise that all employees are entitled to a process similar to a disciplinary process if an organisation is going to let them go during probation, or indeed within the first year of employment. This situation is not brought about by any legislation but by emerging Best Practice and by Determinations and/or Recommendations of the Employment Appeals Tribunal, Workplace Relations Commission and the Labour Court.
It is therefore important that when assessing the suitability of employees during probation, employers should have a formal process for so doing. This process to include:
Regular monthly reviews of performance and suitability. If all is going well then there is no problem, but if it is not going well a formal process should commence.
Formal Process During Probation
If there has been no improvement after one or two Job Chats then the individual should be invited to a informal meeting to discuss performance and the putting in place of a Performance Improvement Plan (PIP). A note should be taken of the conclusions of this meeting and that note should be shared with the individual.
If no further improvement then the individual should be informed that they should attend a formal Performance/Suitability Investigation where the ongoing performance should be reviewed and reasons sought as to why there has been no improvement. At this stage a further PIP should be put in place with a clear timeframe as to how and when the performance should be seen to be altered.
If no success with the outcome of that Performance/Suitability Investigation, then the employee should be informed of the need for Performance/Suitability Hearing. This Hearing should again explore the levels of performance and the reasons as to why there has been no improvement. No judgements should be given during this Performance/Suitability Hearing.
Within a couple of days of the Hearing a decision should be given as to whether or not the employee will remain with the organisation. If this is negative, then the employee should be so informed and should be at the same time informed of their right to appeal.
All of the above ends up being quite an onerous process for employers but failure to carry out such a process leaves employers liable to an award being given against them at the Workplace Relations Commission or the Labour Court. Employers therefore must assess how they have carried out the process mentioned above and whether or not they have a risk at the Workplace Relations Commission or at the Labour Court.