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Care still required for probation terminations

An employee has been successful in a general protections claim following his employer’s decision to terminate him inside the employee’s probation period.

Prior to the termination, there was a confrontation between the employee and his supervisor about the employee not being present at his desk. The employee subsequently contacted the employer’s HR department about the confrontation. The following day, the employee and his supervisor were engaged in a probation appraisal meeting relating to the employee’s performance.  Following criticism of his performance, the employee was offered an extension of the probationary period. Five days later, the employee and his supervisor met again and the Employee criticised his supervisor and the ‘workplace culture’. The employee was terminated the following day.

In his claim, the employee alleged that the employer had dismissed him because he made a complaint about his supervisor.  The employer argued that there had not been a complaint because the employee had declined to make a ‘formal complaint’.  Further, the employer argued that the employee was not dismissed because he made a complaint, but rather he was terminated because of his underperformance during his probation period.

Despite the employer’s arguments, Judge Driver was satisfied that the employee had made a complaint to the employer about the confrontation and also the ‘workplace culture’ generally.

Judge Driver then went on to find that the employer made the decision to terminate the employee as a result of that complaint.  Judge Driver stated:

“My assessment of [the supervisor] is that he is rather an impulsive man who is quick to anger. On 19 March he had offered [the employee] an extension on his probation but he withdrew that offer impulsively at the meeting on 25 March. [The supervisor] was, in my opinion, plainly annoyed that [the employee] had raised issues concerning him and the team he led. … that annoyance was a factor in his recommendation of termination.”

Implications for employers: Given the adverse action jurisdiction, care must still be taken when terminating an employee during their probation period, particularly where an employee has made a complaint in relation to their employment, has been off on sick leave or has had a workers’ compensation claim.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.