May be let go after probation.... Legality question.

neaideabh

Started a job over nine months ago. At interview (one on one) boss told me he expects alot and that job will be a challenge aswell as a great opportunity.

After 6 months they tell me they want to increase probation by 3 months saying they are not convinced I am able for the job! I have improved immensely and they have agreed. Colleagues have commented to me that I have really organised and cleaned up operations BUT I had my end of probation appraisal today! Management agree that I have come a long way and have made many improvements etc, however, my attention to detail regarding my quality of information when replying to queries is continuosly less than acceptable! I accept that there has been instances where I took my eyes off the ball but am adamant that my contributions have had such a positive effect that I believe the few instances of innaccurate info could be overlooked and I be given the chance to improve on my shortcomings.

Basically, I was told that they will take a few days to make a decision on my future!

My question is... My probation ended on the 21st of May but I only had this meeting today. Somebody told me that once you work after your probation end date, you are techically a permanent employee. Is there any element of truth here? Where do I stand.

Also, when I was offered the job by the recruitment agency, I was offered €31000 in salary in the form of €28000 normal salary plus €3000 bonus.
The contract I signed does not mention the bonus but when I enquired about this to the boss just after I started, he said that I get it at the end of the year. But then about 5 or 6 months into my employement, he came into my office bringing up the bonus saying that me getting the bonus depends on what "I bring to the table", effectively going back on his word.
Needless to say, one of the reasons (like most people) why I took the job is because of the money they offered me.

With nothing on paper, where do I stand. Even if they do terminate my employment would I be entitled to 9 months worth of the bonus(€2000)?

Advice much appreciated

PCPhoto

Best of my knowledge.....

as regards bonus - you would be entitled to nothing.

with the job situation, I think you may be offered another contract extension (or could offer to work on a 12month contract basis.... if they tell you they dont want you to continue)

basically organising you to keep your job and fight for your employment - as you now have 9months experience in your position, it would be of benefit for them to keep you on, however they more than likely dont want to extra payments and benefits you would be entitled to.

if you are willing to forget about the bonus and keep your job - you could negotiate that on a contract basis you could continue working doing the same job for €32,000 this way they wont have extra expenses and you will get paid roughly the same as what you get paid now.

contract negotiations work both ways - they understand that you have a role to play in the company and financially they dont want to pay to keep you there - you will be giving them an alternative to letting you go (something they probably didnt consider) - you will however need a solicitor to draw up a contract on agreed terms (if they go with the suggestion)

antoinolachtnai

You might be a permanent employee. You may have something there.

However, you would need to go to the Courts to make that case (you would not be able to go to the Employment Apeals Tribunal). In practice, this would make it impossible.

In practice, what matters is having spent 11 months and 3 days in employment. Once you've done that, you can't be fired without good cause, and you can go to the EAT.

You can't really switch to a 'contract basis'. It doesn't really work that way. Once he has the 11 months and 3 days done, the employer wil find it more difficult to dismiss.

Remember the problem may not be just your performance. It may be that the company simply does not have the profitability to support your position. This would be a good reason to cut the bonus. Bonuses are being cut all over the place.

If the issue is with the economy generally, and if you genuinely think this is the job for you, maybe you should offer to take a pay cut and an increased bonus in return for the job? Not a desuirable thing to have to do but these are tough times.

dade

neaideabh wrote: »

My question is... My probation ended on the 21st of May but I only had this meeting today. Somebody told me that once you work after your probation end date, you are technically a permanent employee. Is there any element of truth here? Where do I stand.

i wont be able to point you at the actual law but my understanding is this. you may only have your probation extended once after the initial period. And if you probation expiration date has passed and you have not been notified of any problems or review of you employment status prior to it then it is assumed you are successful. but that does not mean that certain laws apply to you. some laws only apply after you have a certain amount of time in service ie the unfair dismissals act.

Now if the company told you prior to the 21st that they would review the situation then they have acted accordingly. however the problem i see is in relation to possibly extending your probation again, to my knowledge they can't as they have already extended it. on the other hand my recollection may be wrong and they may be allowed 2 extensions i can't quiet remember the law off the top of my head. someone else may be able to clarify but what it sums up as is that if after the first extension you are still unsure then that person is not for the role

neaideabh wrote: »

he said that I get it at the end of the year. But then about 5 or 6 months into my employment, he came into my office bringing up the bonus saying that me getting the bonus depends on what "I bring to the table", effectively going back on his word.

Could he mean that the bonus will be pro rata, so if you excel you get it all, if you perform poorly you only get little? or maybe times are tough so only those that are exceeding expectations will get it, or he may just have used the "bonus" as a lure to get people

neaideabh wrote: »

With nothing on paper, where do I stand. Even if they do terminate my employment would I be entitled to 9 months worth of the bonus(€2000)?

i believe that depends on your contract, as the bonus is not mentioned in it then it's difficult to say, bit you may be entitled to nothing. do you have anything in writing from the agency stating a bonus was part of the deal? this could be used as leverage. Some contracts will only pay the bonus once the year is completed, so if you only work 9 months you don't get a pro rata payment of 3/4 of the bonus. is the bonus mentioned in a staff handbook or anything like that? it could be clarified there.

antoinolachtnai wrote: »

You might be a permanent employee. You may have something there.

...........

In practice, what matters is having spent 11 months and 3 days in employment. Once you've done that, you can't be fired without good cause, and you can go to the EAT..

EH?/ 11 months 3 days? my understanding is that you can be let go up to 12 months with little or no reason as the likes of the unfair dismissals acts do not apply. where you getting the 11 month one from?

antoinolachtnai wrote: »

You can't really switch to a 'contract basis'...

true, if you were hired as a PAYE worker and not a self employed contractor I don't think they can switch you over. they may be able to not renew your existing contract and allow you to apply as a self employed contractor but that would be a dodgy move because obviously teh position is still needed so there would be no cause to make that position redundant and so dismiss a person from that position.

antoinolachtnai wrote: »

Remember the problem may not be just your performance. It may be that the company simply does not have the profitability to support your position. This would be a good reason to cut the bonus. Bonuses are being cut all over the place. ..

I'd say a lot of people will find it difficult getting bonus pay, but if it's not in your contract you're not legally entitled to it. for future ref if they mention it and its not written down ask them to amend the contract to include it. if the bait of bonus pay is not a ply just to get you to work for lower pay then they should not have a problem doing that. any company i have worked for that included a bonus scheme had it included in the terms of contract.

gerrycollins

your bonus...you need to have it on paper what the criteria that is required to be suscessful in achieving your bonus. anything else is just pants so arrange a meeting to finalise this.

as for dismissal, you may be dismissed up to one year in employment (and i mean on the last day of your year with the company) however if probation period is over(and you can assume this) the company are required to give you ones weeks notice or payment in lieu.

It is up to the company to sort out your probation etc not your so once the dates have been reached then carry on.


the wording "permanent" employee is very grey. the only benefit is after one years employment when the full rigors of the law are behind you for dismissal, however you are not permanent.

you are a salaried employee contracted to work a certain minimum hours per week in return for money however you can be let go at anytime (allowing for correct proceedure) and as such are not permanent.

antoinolachtnai

what gerrycollins is saying is correct in practice.

But:

You do have rights under contract law prior to 12 months. But in practice, it is difficult to assert these rights. You would have to go to the High or Circuit Court. (There are limited circumstances in which you can go to the Employment Appeals Tribunal in less than 12 months.)

Whether the notice is a week or a month depends on your contract.
My experience (from employer side) is that where an employee is paid monthly and has a 28-day notice period, once the employee is witht he company more than 11 months and three days (i.e., if they were given notice, their employment would terminate after the beginning of the second year of service), then the employee has recourse to the employment appeals tribunal. This is the advice we got. It may well be incorrect. I would be extremely cautious about firing anybody in the final month of the year.

dade

antoinolachtnai wrote: »

Whether the notice is a week or a month depends on your contract.
My experience (from employer side) is that where an employee is paid monthly and has a 28-day notice period, once the employee is witht he company more than 11 months and three days (i.e., if they were given notice, their employment would terminate after the beginning of the second year of service), then the employee has recourse to the employment appeals tribunal. This is the advice we got. .

ok i see where you're coming from with that time period. you as an employer have til this date to serve notice of termination after that depending on the contract the unfair dismissals act would come into play on the day of termination. i understand now.

in relation to contract law what recourse would they have? where is the breach of contract? at the end of the day the contract would state for example a 6 month contract, if that is extended said contract is ammended on the agreement of both parties. the only breach would be if the retrospectivly extended the probabtionary period which is against employment legislation IIRC. or am i missing something?

antoinolachtnai

He has rights, but you are right, he has very little cause for action. They way they handled the probation is pretty crappy and he might be able to catch them on that.

Employment law is basically contract. There is an implied contractual relationship between employer and employee. In general, it is this contract that underlies employees' rights.

However, there would be very little point in bringing it up. If this all came to a head, the best thing for the company to do would be to make the OP redundant.