Complainant

Respondent

Parties

Jennifer  O'Reilly

Freudenberg Medical Limited (on consent)

Representatives

Self-Representative

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994.

CA-00073679-001

22/07/2025

The Complainant attended in person and gave evidence on Affirmation.

The Respondent was represented by Declan Thomas of IBEC. Ms. Eithne Ní Bhradaigh, HR Director gave evidence on Affirmation for the Respondent.  The correct name of the Respondent was amended on consent at the outset of the hearing.

Submissions were received from both parties in advance of the hearing and relied upon at the hearing.  

There was considerable evidence given during the hearing, particularly from the Complainant. However, as confirmed with the parties at the outset of the hearing, there was only one complaint referred to by the Complainant and that related to the application of the probation clause by the Respondent was in contravention of Section 7 of the Terms of Employment (Information) Act, 1994 (the “Act”).

Therefore, the jurisdiction of this decision is limited to the Act only.

The Complainant commenced employment with the Respondent on 15 April 2024, working 39 hours per week and earning gross fortnightly wage of €1,247.27. Following her promotion to the position of Line Leader on 10 December 2024, she entered into a new contract of employment effective from 6 January 2025 which contained a six-month probationary period.

The Complainant's evidence was that her probation was due to expire on 4 July 2025 and that, despite the contractual requirement for probation reviews, no formal review took place during that period. She stated that she raised the impending expiry of her probation with her Team Lead approximately two weeks beforehand and understood from that discussion that her probation would conclude successfully where she was told she would receive a pay increase. No concerns regarding her performance were communicated to her prior to the expiry of the probationary period.

The Complainant further gave evidence that on 15 July 2025 she was called to a meeting without prior notice of its purpose and was informed that her probation was being extended by a further three months. She stated that the extension was attributed to her alleged failure to use the clock-in machine, a matter she disputed. The Complainant maintained that she had previously raised concerns regarding workload and the practical difficulties arising in that regard.

The Complainant appealed the decision to extend her probation, but her appeal was unsuccessful. She submitted that the extension of her probation after the expiry of the original six-month period was contrary to the terms of her contract and formed the basis of the present complaint.

Ms Ní Bhradaigh gave evidence that the Complainant’s contract contained a six-month probation clause which was extended to cover her period of sick leave of 12 days.

Ms Ní Bhradaigh’s evidence was that the Complainant, having been promoted to the position of Line Leader, was expected to uphold company procedures and ensure compliance by other employees with workplace standards, including the use of the clocking system. The witness contended that the Complainant had failed to comply with this requirement herself over an extended period by not clocking for lunch breaks.

It was Ms Ní Bhradaigh’s evidence, while it would have been open to the company to revert the Complainant to her previous Trainer role at the conclusion of her probation, it instead decided to extend her probationary period by three months to provide her with an opportunity to address the identified shortcomings and demonstrate the required standards.

The reason for the extension was clearly communicated to the Complainant at the probation review meeting on 15 July 2025 and was recorded in the probation extension documentation, which referred to multiple missed clocking.

Ms Ní Bhradaigh’s position was that the extension of probation was intended to support the Complainant's progression within the organisation and was implemented for her benefit rather than as a disciplinary measure.

Section 6D addresses the maximum duration of probationary period as amended by the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (the 2022 Regulations) which amended the Act on 16 December 2022. Section 6D states:

“6D.— (1) Subject to this section, where an employee has entered into a contract of employment with an employer which provides for a probationary period, such period shall not exceed 6 months.

(2) The probationary period of a public servant shall not exceed 12 months.

(3) The probationary period referred to in subsection (1) may, on an exceptional basis, be longer where such longer period —

(a) does not exceed 12 months, and

(b) would be in the interest of the employee.”

Section 6 (D) (5) provides for extensions due to absences:-

(5) Where, in accordance with a specified provision, an employee is absent from work during the probationary period, such period shall be extended by the employer for the duration of the employee’s absence.”

“"specified provision" means:….

….(g) section 11 (3) of the Sick Leave Act 2022;

(h) any other statutory provision providing that probation shall —

(i) stand suspended during an employee’s absence from work, and

(ii) be completed by the employee on his or her return from work after such absence.”

The Complainant’s contract contained a probation clause as follows:

"You will be employed on probation for a period of 6 months. The performance and conduct of employees will be reviewed on a regular basis during the probationary period with a formal documented probation review. Probation may be extended at the company's discretion and termination of this agreement within the probationary period shall be at the discretion of the company."

I have carefully considered the oral and documentary evidence. The contract expressly provides for regular reviews during probation together with a formal documented probation review. No documentary evidence of any probation reviews conducted during the six-month probationary period was produced by the Respondent. While it was suggested that conversations took place between the Complainant and her supervisor regarding performance, the Complainant disputed this evidence, and the supervisor was not called to give evidence. Consequently, it is found the Respondent complied with its own contractual probation review procedure.

It is further noted that Section 6D (3) of the Act permits an extension of probation only on an exceptional basis and where such extension is in the interests of the employee. Apart from the assertion that the extension would benefit the Complainant by allowing her additional time to improve, no evidence was produced of any assessment undertaken by the Respondent of why an extension was necessary, exceptional, or in the Complainant's interests. The contractual provision allowing the Respondent to extend probation "at the company's discretion" cannot override the statutory requirements contained in Section 6D of the Act.

The Respondent submitted that the probationary period was extended by reason of the Complainant's absence on sick leave. I do not accept that submission in its entirety. Section 6D(5)of Act, read together with Section 6D(6)(g) of Act, permits an extension of probation by reference to statutory sick leave under the Sick Leave Act 2022. However, the evidence before me was that the Respondent relied on an absence of twelve days. There is no statutory basis for extending the probationary period by the entirety of that entire absence. At most, the legislation permits an adjustment referable to the period of statutory sick leave only protected by the Act.

Even allowing for such statutory sick leave, it is found that the Respondent has failed to establish that the extension of the Complainant's probation complied with Section 6D of the Act. In particular, there is an absence of any evidence that the extension was made on an exceptional basis or that the Respondent demonstrated that it was in the Complainant's interests. Furthermore, the Respondent failed to conduct the formal documented probation review envisaged by the contract before seeking to extend the probationary period.

Accordingly, I find that the Respondent acted in breach of Section 6D of the Act in extending the Complainant's probationary period. The complaint is therefore well founded.

Section 7(2) of the Act provides that where a complaint is well founded, the Adjudication Officer may require the employer to comply with the relevant provision and/or award compensation as is just and equitable in the circumstances, up to a maximum of four weeks’ remuneration.

I have found that the complaint is well founded.

Pursuant to Section 7(2)(ii) and having regard to all the circumstances of the case, including the nature of the breach, I consider it just and equitable to award the Complainant €1,247.27 being two weeks renumeration.

Complainant

Respondent

Parties

Jennifer  O'Reilly

Freudenberg Medical Limited (on consent)

Representatives

  Self-Representative

 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994.

CA-00073679-001

22/07/2025

The Complainant attended in person and gave evidence on Affirmation.

The Respondent was represented by Declan Thomas of IBEC. Ms. Eithne Ní Bhradaigh, HR Director gave evidence on Affirmation for the Respondent.  The correct name of the Respondent was amended on consent at the outset of the hearing.

Submissions were received from both parties in advance of the hearing and relied upon at the hearing.  

There was considerable evidence given during the hearing, particularly from the Complainant. However, as confirmed with the parties at the outset of the hearing, there was only one complaint referred to by the Complainant and that related to the application of the probation clause by the Respondent was in contravention of Section 7 of the Terms of Employment (Information) Act, 1994 (the “Act”).

Therefore, the jurisdiction of this decision is limited to the Act only.

The Complainant commenced employment with the Respondent on 15 April 2024, working 39 hours per week and earning gross weekly wages of €1,247.27. Following her promotion to the position of Line Leader on 10 December 2024, she entered into a new contract of employment effective from 6 January 2025 which contained a six-month probationary period.

The Complainant's evidence was that her probation was due to expire on 4 July 2025 and that, despite the contractual requirement for probation reviews, no formal review took place during that period. She stated that she raised the impending expiry of her probation with her Team Lead approximately two weeks beforehand and understood from that discussion that her probation would conclude successfully where she was told she would receive a pay increase. No concerns regarding her performance were communicated to her prior to the expiry of the probationary period.

The Complainant further gave evidence that on 15 July 2025 she was called to a meeting without prior notice of its purpose and was informed that her probation was being extended by a further three months. She stated that the extension was attributed to her alleged failure to use the clock-in machine, a matter she disputed. The Complainant maintained that she had previously raised concerns regarding workload and the practical difficulties arising in that regard.

The Complainant appealed the decision to extend her probation, but her appeal was unsuccessful. She submitted that the extension of her probation after the expiry of the original six-month period was contrary to the terms of her contract and formed the basis of the present complaint.

Ms Ní Bhradaigh gave evidence that the Complainant’s contract contained a six-month probation clause which was extended to cover her period of sick leave of 12 days.

Ms Ní Bhradaigh’s evidence was that the Complainant, having been promoted to the position of Line Leader, was expected to uphold company procedures and ensure compliance by other employees with workplace standards, including the use of the clocking system. The witness contended that the Complainant had failed to comply with this requirement herself over an extended period by not clocking for lunch breaks.

It was Ms Ní Bhradaigh’s evidence, while it would have been open to the company to revert the Complainant to her previous Trainer role at the conclusion of her probation, it instead decided to extend her probationary period by three months to provide her with an opportunity to address the identified shortcomings and demonstrate the required standards.

The reason for the extension was clearly communicated to the Complainant at the probation review meeting on 15 July 2025 and was recorded in the probation extension documentation, which referred to multiple missed clocking.

Ms Ní Bhradaigh’s position was that the extension of probation was intended to support the Complainant's progression within the organisation and was implemented for her benefit rather than as a disciplinary measure.

Section 6D addresses the maximum duration of probationary period as amended by the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (the 2022 Regulations) which amended the Act on 16 December 2022. Section 6D states:

“6D.— (1) Subject to this section, where an employee has entered into a contract of employment with an employer which provides for a probationary period, such period shall not exceed 6 months.

(2) The probationary period of a public servant shall not exceed 12 months.

(3) The probationary period referred to in subsection (1) may, on an exceptional basis, be longer where such longer period —

(a) does not exceed 12 months, and

(b) would be in the interest of the employee.”

Section 6 (D) (5) provides for extensions due to absences:-

(5) Where, in accordance with a specified provision, an employee is absent from work during the probationary period, such period shall be extended by the employer for the duration of the employee’s absence.”

“"specified provision" means:….

….(g) section 11 (3) of the Sick Leave Act 2022;

(h) any other statutory provision providing that probation shall —

(i) stand suspended during an employee’s absence from work, and

(ii) be completed by the employee on his or her return from work after such absence.”

The Complainant’s contract contained a probation clause as follows:

"You will be employed on probation for a period of 6 months. The performance and conduct of employees will be reviewed on a regular basis during the probationary period with a formal documented probation review. Probation may be extended at the company's discretion and termination of this agreement within the probationary period shall be at the discretion of the company."

I have carefully considered the oral and documentary evidence. The contract expressly provides for regular reviews during probation together with a formal documented probation review. No documentary evidence of any probation reviews conducted during the six-month probationary period was produced by the Respondent. While it was suggested that conversations took place between the Complainant and her supervisor regarding performance, the Complainant disputed this evidence, and the supervisor was not called to give evidence. Consequently, it is found the Respondent complied with its own contractual probation review procedure.

It is further noted that Section 6D (3) of the Act permits an extension of probation only on an exceptional basis and where such extension is in the interests of the employee. Apart from the assertion that the extension would benefit the Complainant by allowing her additional time to improve, no evidence was produced of any assessment undertaken by the Respondent of why an extension was necessary, exceptional, or in the Complainant's interests. The contractual provision allowing the Respondent to extend probation "at the company's discretion" cannot override the statutory requirements contained in Section 6D of the Act.

The Respondent submitted that the probationary period was extended by reason of the Complainant's absence on sick leave. I do not accept that submission in its entirety. Section 6D(5)of Act, read together with Section 6D(6)(g) of Act, permits an extension of probation by reference to statutory sick leave under the Sick Leave Act 2022. However, the evidence before me was that the Respondent relied on an absence of twelve days. There is no statutory basis for extending the probationary period by the entirety of that entire absence. At most, the legislation permits an adjustment referable to the period of statutory sick leave only protected by the Act.

Even allowing for such statutory sick leave, it is found that the Respondent has failed to establish that the extension of the Complainant's probation complied with Section 6D of the Act. In particular, there is an absence of any evidence that the extension was made on an exceptional basis or that the Respondent demonstrated that it was in the Complainant's interests. Furthermore, the Respondent failed to conduct the formal documented probation review envisaged by the contract before seeking to extend the probationary period.

Accordingly, I find that the Respondent acted in breach of Section 6D of the Act in extending the Complainant's probationary period. The complaint is therefore well founded.

Section 7(2) of the Act provides that where a complaint is well founded, the Adjudication Officer may require the employer to comply with the relevant provision and/or award compensation as is just and equitable in the circumstances, up to a maximum of four weeks’ remuneration.

I have found that the complaint is well founded.

Pursuant to Section 7(2)(ii) and having regard to all the circumstances of the case, including the nature of the breach, I consider it just and equitable to award the Complainant €2,494.54 being two weeks renumeration.