Probation in Contracts
Everyone expects a Contract of Employment to contain a Probation Clause. It is only reasonable that the prospective employer should get an opportunity to assess the performance of the employee in order to ensure that the employee is suitable for the position. But what if the new employer head-hunted the employee from a position where the employee enjoyed a previously happy career? What if that employee has now been dismissed by her new employer where the new employer has relied upon that Probation Clause?
What if that employee had only left her previous employment because of approaches by a Recruitment company on behalf of the new employer where the employee had previously enjoyed her career with a leading firm of Chartered Accountants?
Termination of Contract
This is what occurred in the case of Catherine Ryan v Bank of Ireland where Mr Justice Paul Gilligan was asked to decide on an Injunction Application by Ms Ryan that the Bank should be obliged to pay her wages pending the hearing of her substantive High Court Dismissal Claim against the Bank seeking a Declaration that her Dismissal by the Bank was invalid. After all, she was now no longer in receipt of wages to support her family pending the Hearing in circumstances where she would otherwise have previously enjoyed earnings from her previous employer. In his Decision dated 17th June 2016 [2016] IEHC 376, 2016 / 4395P Mr Justice Gilligan decided that Ms Ryan was not entitled to be paid pending the Hearing of her Claim.
Extremely unfortunate background circumstances
Normally in these Injunction Applications the Judge must be satisfied that, if he is to make some interim Relief Order, the Plaintiff is likely to succeed in her substantive Action when it is ultimately heard. He makes that Decision based on his assessment of Affidavit evidence filed by each party. While the Judge acknowledged the “extremely unfortunate background circumstances” in which the Injunction Application had been brought, Mr Justice Gilligan said that, based on the Affidavit evidence that had been filed by each party, he was not in a position to state that the Plaintiff was likely to succeed in her substantive Hearing and that accordingly he could not make this interim Order for payment of the Plaintiff`s wages pending the Hearing.
While the Judge directed that the substantive Action should be brought to a full Hearing as soon as possible the likelihood is that this Plaintiff, or many like her, will be forced to seek alternative employment in the meantime; thus lessening the opportunity of her being restored to her position even if she is ultimately successful in her substantive Action.
The moral of the story
The neighbour`s grass is not always greener. The new job offer may appear to have benefits over and above your existing Employment Contract, but with those benefits comes the risk that you may not actually get on with your new employer. The lesson is that you should read the Probation Clause carefully, assess the circumstances in which it will be exercised and then decide if you really wish to risk your existing career for those greener lawns!