Late probation meeting

[Kiwiguy74]

Hello
I started my job on tje 20th June and was due to haveton end of probation meeting on the 19th Dec. This got bumped to 12th Jan (today).
As nothing had been said I presumed I had passed probation.
At the late probation meeting today they informed me they were going to terminate my contract siting performance issues.
This came out of the blue and there had been no indication of performance concerns.
I am wanting to make a case to be paid 3 months notice (as opposed to 1 month offered).
Given the circumstances what are my chances of getting 3 months? The rationale is that that they didnt confirm probation had been passed within the 6 month period.

[ULA]

When were you notified of the "extension" to your probationary to accommodate the meeting needing to be delayed?

Does your contract of employment allow for an extension to the probationary period?

[Kiwiguy74]

Hi ULA,

Thank you for responding. The relevant clauses from my contract follow.

There was no notification of any extension - they simply bumped it 3 times and eventually had it yesterday.


5. Probationary period 5.1 Your initial employment with the Company will be on the basis of a probationary period of 6 months. During that period, the Company may, at any time, terminate your employment by serving the requisite notice (refer to clause 11). 5.2 Your performance and suitability for continued employment will be reviewed throughout your probationary period and the Company reserves the right in its absolute discretion to extend the probationary period beyond the initial 6 months. 5.3 Your probationary period will only come to an end when you have been informed that you have successfully passed your probation in writing.5.4 During your probationary period, the organisation's disciplinary procedure need not be applied to you and you are not eligible for the additional benefits outlined in the Employee Handbook and Reward & Benefits booklet



12. Notice 12.1 Except in circumstances justifying summary dismissal, the following notice to terminate your employment will apply: Length of Service Written notice to be supplied Until the probation period is passed Employee: 4 weeks Employer: 1 week After the probation period has been passed 3 months from either party

[ULA]

Thank you for posting up those clauses it is very helpful and a comprehensive clause in respect of the probationary period.

5.2 Gives the right to extend the probationary period and although you were not formally notified of an extension due to performance you have been made aware of attempts to hold the probationary meeting which, for whatever reason, have needed to be rescheduled.
5.3 Confirms that your probationary period will only come to an end when you have been informed in writing of successful completion. This has not happened in your case.

My view is that you can try to argue 3 months but in my opinion the company is covered contractually to only pay you one month as you are still in your probationary period.

[Kiwiguy74]

Thanks ULA - if you need to wait for confirmation then feasibly an employer could delay issuing such letter - so it begs the question - what's the point of six months.

[ULA]

Firstly not all employers add in your 5.3 clause. If this clause was not in place and any confirmation of your probationary period was not forthcoming and there had been attempt to such a review meeting (even if postponed and rescheduled) the argument would be different.

However, in your case attempts were made to set the appropriate meeting, although delayed for various reasons and there is the 5.3 clause.

[Kiwiguy74]

I'm not sure I accept that.
My probation period ran from 13^th June to 12^th Dec. I was told nothing until the 12^th Jan – on which date I was told my employment would end on the 13^th Feb (1 months notice)

Clauses 5.2. and 5.3 seem to be in conflict as far as I can see. Is it 6 months or is it whenever they want? I accept they can extend as per 5.2 but surely they have to tell me before the end of the 6 months. As of the 13^th Dec I had to have been either on extended probation or passed.

[atticus]

I agree with ULA. I disagree with your interpretation in the light of clause 5.3. The "bumping" can clearly be construed as extending the probation period.

Nevertheless, you may put your argument to the company.

[Kiwiguy74]

https://shepwedd.com/knowledge/exten...tionary-period

The case referenced "Przybylska v Modus Telecom Ltd, " reads very similarly to my situation. As does this one.

https://assets.publishing.service.go..._2017_Full.pdf

[atticus]

Possibly, but what about the "bump" and clause 5.3? You need to be able to deal with those arguments.

[ULA]

I have to agree with atticus the reason those two cases you quoted were successful for the claimant was an absence of any relevant clause 5.3 as in your contract. It is for that very reason, when I draft employment contracts, they always contain an equivalent 5.3 clause, it avoids any claims.

[Kiwiguy74]

Thanks for your comments
I cant seem to find the full employment contracts for these cases to establish if they did or did not have clauses akin to my 5.3.

In any case my query remains - what is the point of stipulating a probation period of 6 months when in practice 5.3 could mean HR can make an employee wait as long as they want and in effect ignore the 6 months.

[ULA]

A clause 5.3 means that the probationary period cannot inadvertently lapse without the the employer being able to extend the probationary period in the event that an employee has not meant the standard required.

[atticus]

The likelihood is surely that if in either of those cases there had been a clause 5.3 type provision, it would have been referenced in the judgements. It is reasonable to conclude that there was none.