Termination of a definite contract of employment during probation

The complaint

A Professional Support Executive, employed on a one year definite contract with Aġenzija Sapport, alleged her employment was terminated without being given a valid reason, and when it was customary for such contract to be renewed.  Complainant felt aggrieved also at the way by which her employment was terminated having been ordered to leave her office with immediate effect.

The investigation

The Ombudsman established that, in terms of her contract, complainant was subject to a probationary period of one year.  She had been employed on 1 July 2013 and was ordered by her superiors to pack her things and go home with immediate effect on 13 June 2014, within the one year probationary period and before the expiry of the term of her employment contract.

The Foundation for Social Welfare Services (under whose remit the Sapport Agency falls) confirmed that complainant’s contract of employment was a definite one for a period of one year, with a probationary period covering the whole term in terms of its policy for Professionals.  In line with the same policy, during the probation two reports on the employee had to be carried out, one after four months and the second one during the tenth month of employment.

The Foundation listed a number of problems in the performance of complainant’s duties, both in the first report as well as in the second one –specifically referring to incidents in the discharge of her duties, as well as in her relations with her colleagues.  The Foundation considered these failures not to be in line with the Foundation procedures.

The Ombudsman investigated the contents of both reports that essentially highlighted alleged difficulties of complainant to carry out her professional duties not only when communicating with clients but also with her colleagues.  Complainant had been made aware of her failings after the first report but there wasn’t much progress despite the guidance provided through formal supervision sessions, team meetings and other regular consultations.  However, complainant still found difficulty in applying work knowledge according to the needs of the clients, including difficulty to understand her role as a Professional Support Worker and act as a bridge between management and support workers.  Difficulties in complainant’s relations with her colleagues persisted.  The probationary report concluded that despite the opportunities given to complainant, the challenges encountered in the first report persisted and additionally there were team problems which made it difficult for the team to function properly.  The situation had become intolerable and the report therefore recommended that the probation period be terminated and the contract not renewed.

The Foundation informed the Ombudsman that since complainant was entitled to two weeks’ notice period and since it had legal advice that when a contract is terminated while on probation, such period had to be on payment, complainant was informed by letter dated 13 June 2014 that her employment was being terminated while on probation,  “…She (was) nicely told to pack up her belongings and leave immediately”.  The Director found out that complainant was still at the Office after almost two hours since being given the letter and he had ordered her to leave.

Complainant’s reaction

Complainant submitted that according with the Employment and Industrial Relations Department the one year probationary period in her contract was illegal since, on the basis of the Employment and Industrial Relations Act, that probation should not have exceeded six months. She strongly objected to the way in which her employment had been terminated.  She had asked for the reason behind the termination letter since she had done nothing wrong.  The Director had told her that no reason needs to be given in case of termination of a contract of employment during the probation period.  He had summarily told her to pack up and leave.

She argued that she felt traumatised with this approach because she had never had a verbal or a written warning.  She refuted allegations that she had difficulties in building positive relationships with colleagues. She never had clashes during the period covered by the first probationary report and she contested point by point the negative comments regarding her professional conduct and the quality of her performance contained in both reports.

She challenged the finding that she had not been keeping professional boundaries.  She submitted she respected everyone and her Team Leader had always praised her for the support and understanding she (and another colleague) gave to support workers.  As far as she knew her behaviour was always appreciated by the whole agency.

Further submissions

Further submissions were made to the Ombudsman both by complainant and by the Foundation alleging reciprocal inaccuracies.  The Office did not consider it to be in the best interest of the investigation to open fresh wounds by requesting complainant to comment on each and every point raised again by the Foundation and on which she had already commented.  During a meeting with the Foundation she was informed that in essence, the Foundation was sticking to its version of facts as opposed to hers.

Considerations and comments

Having concluded his laborious investigation on a complaint that was highly contested and emotionally charged, the Ombudsman made the following considerations and comments:

  1. The contractual probation period was invalid at law. Complainant’s definite contract included a probation period of one year, which meant that the whole period of the contract was on probation. Complainant had sought the advice of the Department of Employment and Industrial Relations and she was informed that once her emoluments did amount to, or exceed twice the minimum wage, the probation period should not, in terms of the law, have exceeded six months.  In other words, after six months, the probation period should have been ended and she was entitled to continue the contract until its termination (one year).  The condition of probation beyond the sixth month was therefore null and void at law.  This Office has also been informed that it was contrary to the Collective Agreement applicable in complainant’s case.
  1. As a result, complainant’s dismissal without being given any reason at the time of the termination notice, was also mistaken at law. In fairness to the Foundation, it had acknowledged the mistake and has taken corrective action to amend its probation policy to be in line with the law.
  1. The events leading to the letter of termination. The Foundation submitted that it had in a separate case, received legal advice that an employee was entitled to two weeks’ notice if the employment was terminated during the probation period. In order to make sure that complainant’s contract was terminated with full respect for the required notice period, the Foundation decided to inform complainant on the last working day prior to the two weeks before the end of the contract, that her contract was being terminated.  Complainant was informed of that decision by word of mouth and by the letter of termination on the last day.  She was also told to pack her things and go home.  This had been done at a time while her office colleagues were on outside duties.  The Director insisted that he had taken reasonable steps to ensure that her office colleagues were not present at the time to avoid more embarrassment than was necessary, and also that he had spoken to her very politely and calmly.
  1. The Ombudsman noted that irrespective of the actual way in which messages were conveyed to complainant on that day, the fact remains that she was directed to pack her things and go. This Office could not find justification for complainant being told to pack her things and go as if she had committed a serious offence which warranted such expeditious action.  Proper administration warranted that in such situations, the employee is given the termination notice letter, if necessary informing her that that was her last day at work.  She could also have been offered – not ordered – to pack and go home before the end of the working day.  Such latter approach would not have in any way have jeopardised the Foundation’s interests.  While attracting criticism from this Office, this consideration is not meant to imply that the Foundation did not act in good faith, but that the method used was, to put it mildly, not a good example of proper employer/employee approach in staff relations.
  1. The termination of complainant’s employment. Having established that complaint’s contract could not be terminated on the grounds that this was done during the probation period, it had to be stated that in effect complainant remained in employment and was paid right up to the end of her definite contract.  This contract did not include any provision for renewal after its expiry, and the Foundation was in no way obliged to renew it, even if, as argued by complainant, this was the Foundation’s practice.

The Foundation was within its rights not to renew such a contract, especially if it felt that it was in its best interests.  However, good administration requires that a citizen be given reasons for administrative decisions that affect him or her negatively.  This is well within the parameters of interpretation of the fundamental right of European citizens to good administration.  It was a fact that because of the mistaken probation policy, the Foundation refused to give such reason on the grounds that at law, an employer is not bound to give reasons for its decision to terminate an employment during the probation period.  However, the Foundation, subsequently and after complainant sought recourse to the Office of the Ombudsman, explained at length the reasons why it decided to terminate complainant’s employment.

Irrespective of any other consideration, the facts remain that the net result was that the Foundation did pay complainant for her services right up to the last day of her definite contract.  Even if, for the sake of argument, the Ombudsman were to harbour any doubt one way or another on whether  the Foundation acted in its best interest or whether complainant had the right to feel aggrieved, its decision in fact remains that the Foundation acted within its own rights when it did not renew complainant’s definite contract.  The Ombudsman did not find solid grounds to consider the Foundation’s decision as one which amounts to maladministration.

Conclusions and recommendations

On the basis of the above considerations the Ombudsman concluded that:

  1. Complainant’s employment could not be terminated on the grounds that she was within the probation period, and therefore without her being given reasons for that decision. The Ombudsman noted that the Foundation had recognised its mistake and took steps to change its probation policy to one which in this respect complies with the law.  Moreover, the reasons for termination of employment were subsequently given to complainant through this Office.
  2. The sequence of events on complainant’s last afternoon at her office did not conform to good employer/employee relations and practices. Even if the Ombudsman believed that there was no bad intent on the part of the administration, he was of the opinion that complainant could have been given the termination notice letter  and offered, but not directed or ordered, to go home straightaway.
  3. In effect, complainant was paid up to the last day of her one year contract. Even if the practice at the Foundation was that such contracts were as a rule renewed, there was no obligation at law for its renewal.  The fact remained that whatever the truth was in respect of the diametrically opposite versions given by the two parties prior to the Foundation’s decision to terminate the contract of employment, such doubt did subsist and the Ombudsman was not therefore in a position to declare that the Foundation’s decision amounted to maladministration.
  4. Without prejudice to the above conclusions, there was no reason to suspect that what complainant argued was a genuine expression of her honest belief. Moreover, in this case the Foundation mistakenly declared her as having her contract terminated during the probation period – both in the termination notice as well as in its report to ETC submitted in terms of law.  Such a statement seriously prejudices her chances of future employment.  Since the reason for the termination was not valid at law, the Ombudsman recommended that the reason given to ETC be withdrawn and replaced by one which stated that the reason for termination was expiry of the definite contract.
  5.  The Ombudsman further recommended that the Foundation send a letter to complainant explaining that her employment was terminated on expiry of her definite (one year) contract. This would be less damaging than a statement to the effect that her contract was terminated during the probation period.

The Ombudsman was subsequently informed by the Foundation for Social Welfare Services that his recommendation had been accepted and implemented.




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