At a glance
- In a recent High Court decision, Buttimer v Oak Fuel Supermarket Limited Trading as Costcutter Rathcormac, two interlocutory injunctions were granted following the dismissal of the store manager of a fuel station. The injunctions were to prevent the employer from:
- hiring another person to fill the vacant role; and
- publishing or communicating to anyone that the employee was no longer employed, pending the full trial.
Background
The employer operates a fuel station and shop. The employee was hired in March 2022 as a supervisor. Her manager was shortly afterwards made aware of bullying allegations made against the employee. The employer carried out a formal investigation, during which, the employee was promoted to store manager. The employee’s new contract was of indefinite duration, subject to a probationary period. In May 2022, the manager received further complaints from another employee about the employee, while the original investigation was ongoing. A meeting was called on 17 May and the employee’s employment terminated that day.
Issue for the Court
The employee applied for interlocutory relief including an order compelling the employer to continue the employment, restraining the employer from filling the position or communicating that the employee had been let go. The employee contended that she was dismissed due to allegations of misconduct, and not afforded fair procedures. The employer contended that the employment was terminated as the employee failed her probationary period due to poor performance, and that there was no obligation to follow fair procedures.
In its judgement, the court reiterated that where an employee is dismissed for misconduct during their probation, fair procedures must be complied with and cannot be contracted out of.
Decision
The court found that there was in fact a strong case termination was for misconduct and therefore fair procedures should have been properly complied with.
The employer was unable to show any document recording feedback, training or instruction to backup any poor performance concerns. The court also noted the promotion of the employee during this time and the lack of evidence supporting the difference in performance before and after the promotion. The court considered that the employee was still in the probationary period and could have been let go with only a week’s notice. As such the court refused to grant relief compelling the employer to bring the employee back to work.
However, the court was of the position some relief was required to avoid irredeemable harm and granted interlocutory injunctions restraining the employer from filling the plaintiff’s role and from publishing or communicating that the employee is no longer connected to the company, pending full trial.
Key Takeaways
- Dismissal for misconduct always requires fair procedures to be followed, even during a probationary period.
- Dismissal for poor performance should be backed up with continued written evidence.
- A court is unlikely to compel continued employment where trust has been broken down.
The decision highlights the importance of fair procedures in disciplinary matters and the scope of an employment injunction. This decision does not, however, negate an employee’s right to pursue other rights of action during probation (including discrimination, protected disclosure, and unfair dismissal if continuous service exceptions apply). Employers are also reminded to check their probation clauses and disciplinary procedures to ensure that they provide sufficient flexibility and to note that new restrictions on the duration of probationary periods were introduced this year under the Transparent and Predictable Working Conditions Regulations.
Please contact a member of DLA Piper Ireland’s Employment team if you would like any further information on this decision or on probation and dismissals more generally.
More to explore
