Rights of Employees on Probation

Q: Email from Alana N. with 4 separate questions; these are the first two:


A:

1. During the probationary period (in this case 3 months) does the employer have the right to extend the employee’s working hours (e.g. was 7.30am to 4:00pm and changed to 7:00am to 4:00pm) without the employee’s consent? The signed contract doesn’t specifically state the working hours however the HR department verbally indicated that the hours are 7.30 am to 4:00pm OR 8:00am to 4:30pm and for the past 2 months the employee has been following this time-frame. No discussions were held with the employee before a letter was sent informing the employee that the hours of work will now be extended. Note that other workers in that department didn't have the hours of work extended so it is not a departmental change/organisational change.

No, the employer CANNOT extend an employee’s work hours without notice, reason and increase in salary; and either way, it is a variation of the contract, so it will need to be accepted by both parties. The fact that it has only happened to one person is an even stronger reason why it will have no legal ground if it is forced on the employee and the matter goes to court. I would recommend that the employee raises a formal grievance concerning the matter.

2. Can the employer hold this against the employee if there is objection to the change when the probationary period is over and hence terminate the contract? At the end of the probationary period, can the employer choose not to continue the Contract without any reason or justifiable claim? Even if the employee’s supervisor provides a favourable performance appraisal?

An employer can terminate an employee’s contract without going through the procedures of warnings DURING the probationary period, but the proper procedure for dismissal (1 week notice) is still required. However, if at the END of the probationary period, the employee is fired for a non-performance related reason (and everyone is aware that the employee stood up for his/her rights), it will definitely be seen as victimisation, which is illegal according to the Equal Opportunity Act 2000. 

Also, in the case of Bank and General Workers’ Union v. Colonial Life Insurance (Company) Limited TD 265 of 1986, the Court opined:

“It is a well-established principle of industrial relations that the services of a worker on probation cannot be dispensed with for tenuous or improper reasons. An employer is not entitled at his will to terminate the appointment of a worker merely because he is on probation.”

Employment Rights: Constructive Dismissal

Q: Can I be fired with immediate effect?


A: Part 4

When an employee is forced to quit because of intolerable behaviour by an employer, it is called Constructive Dismissal. In order to prove this, the employee must show that:

1. The employer committed a serious breach of contract
2. He/She felt forced to leave because of that breach
3. He/She did not do anything to suggest acceptance of the breach, or change in employment conditions


Examples of Constructive Dismissal:

1. Not supporting managers in difficult work situations.

2. Harassing or humiliating staff, particularly in front of other less senior staff.

3. Victimising or targeting particular members of staff.

4. Changing the employee's job content or terms without consultation.

5. Making a significant change in the employee's job location at short notice.

6. Falsely accusing an employee of misconduct; e.g. theft or being incompetent

7. Excessive demotion or disciplining of employees

8. Failing to provide a safe place of work

9. Cutting - or trying to cut - an employee's wages or salary or other contractual benefits without their agreement

Employment Rights: Unfair Dismissal

Q: Can I be fired with immediate effect?


A: Part 3

Unfair dismissal occurs when an employee can prove that the reason for the dismissal, or the process used to dismiss them was "unfair". So obviously, the question you're asking at this point is...


What constitutes Unfair Dismissal?
A - The employer dismisses the employee without a fair reason as listed below:
    1. Gross Misconduct
    2. A reason related to the employee's capability or lack of qualifications
    3. Retirement of the employee
    4. Redundancy
    5. A legal requirement prevents the employment continuing (e.g., the employee is employed as a driver but no longer holds a driving license)

B - The employer fails to follow the correct dismissal process
    1. Sending a letter
    2. Arranging a meeting
    3. Telling you their decision
    4. Allowing an appeal


C - The employer dismisses the employee for an automatically unfair reason.

Automatically Unfair Dismissal
There is NO defence to an automatically unfair dismissal, which can include:
1.) Dismissal for asserting a statutory employment right

2.) Unfair dismissal before, during or after business transfers

3.) Discrimination

4.) Unfair retirement

5.) Dismissal in violation of pregnancy/maternity rights

6.) Dismissal following a failure to comply with statutory disciplinary or grievance procedures

7.) Unfair dismissal related to working patterns & time

8.) Unfair dismissal for an issue related to trade unions

9.) Unfair dismissal during an industrial dispute

10.) Dismissal for a reason connected to the National Minimum Wage

11.) Dismissal relating to activities as an occupational pension scheme trustee

12.) Dismissal for taking legitimate steps to ensure the observance of health and safety work place requirements

13.) Dismissal for carrying out the functions of an elected employee representative or candidate for election or taking part in an election

Employment Rights: Wrongful Dismissal

Q: Can I be fired with immediate effect?


A: Part 2

An employer can terminate an employee's contract at any time for any legitimate reason, provided that they give the employee reasonable notice or compensation in lieu of reasonable notice. This means that the employee must be given minimum notice equivalent to the pay period; i.e., a weekly paid worker would require 1-2 weeks* and a monthly paid employee would require 3-4 or more* depending on the length of service. The employer also has the option of firing this employee on the spot and paying them for the notice period.

Wrongful Dismissal involves a breach of contract or the law regarding the contract as stated above. In other words, the "wrongful" is only associated with the WAY in which the employee was terminated, not the REASON for the termination.

Wrongful dismissal occurs when an employee is dismissed without notice; too short notice; contrary to the terms in the employment contract; or when "a worker has been dismissed in circumstances that are harsh and oppressive or not in accordance with the principles of good industrial relations practice", according to Section 10(5) of the Industrial Relations Act 1972, as amended.


*N.B. - A shorter notice period may be used if it can be justified.

There is NO QUALIFYING PERIOD for Wrongful Dismissal, so an employee can bring a claim for this at anytime during employment. 

Employment Rights: Summary Dismissal

Q: Can I be fired with immediate effect?


A: Part 1

A summary dismissal is legal, but ONLY when an employee is fired with immediate effect for gross misconduct. Gross misconduct is behaviour that makes it immediately and definitively impossible to maintain an employment relationship. Examples of this are:

• Criminal damage to work property
• Being under the influence of drugs or alcohol during work hours
• Theft or fraud
• Discrimination or harassment of others in the workplace
• Negligence
• Breach of company policy (improper use of internet, phone, etc.)
• Insubordination
• Falsifying experience and qualifications or general incompetence
• Leaking confidential information

A summary dismissal still requires proper procedure, i.e., the employee must receive a letter notifying him/her of the dismissal, which must explicitly detail the misconduct of which the employee is being accused. If this is not the case, the dismissal is unfair.

N.B. The employer does not need proof of the misconduct; suspicion is enough.