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surya kaliyamoorthi (Assistant Legal Manager)     04 June 2010

Termination of employee

Dear friedns,

 

This is Surya. I just want to get clear picture with regard to termination of employee due to the non performance.

1. Is it possible to terminate the person with in a Day during probation period.

2. what are step to be taken before termination  of employee due to the non performance..?

3. Can u pl point out the supreme court judgement.

4.  Behind the reason of my query is, i had spoken with my friends who belong to legal fraternity, But could not able come to the conclusion.. some people saying before termination we need send show cause notice and to conduct enquiry as well,

5. the other said, its good enough  if we have  stated about termination  will be happen with in a day in the offer letter  because of non performance or some other reason



Learning

 13 Replies

V. VASUDEVAN (LEGAL COUNSEL)     04 June 2010

Termination of a probationer for non-performance in a day is totally absurd and untenable. Such an action cannot ever be justified. The question appears quite short and bereft! Dear colleague, please give brief case details  to facilitate clear perspective.

vasudevan

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     05 June 2010

THIS IS THE LATEST TREND OF LITIGATION COMING UP IN IT/BANKING/INSURANCE  INDUSTRY. THE PRIVATE SECTOR EMPLOYEES IN THE CADRE OF MANAGER/EXECUTIVES FACING PROBLEM IN SUING EMPLOYER (FORUM).

THE CIVIL COURTS ONLY THE FORUM, WE KNOW THE FUNCTIONING AND JUSTICE DELIVERY TIME IN CIVIL COURTS.

UNTIL & UNLESS SOME ENACTMENT OF PARALEMENT FOR THESE DISPUTES OR APEX COURT GUIDE LINES UNDER ART.142 IS NEEDED IN THIS HOUR. 

Ashok. B.V. (Executive-Legal)     05 June 2010

Mr. Surya,

  1. As for as your 1st question is concerned you may terminate the Employee within a day during his probation period without notice or without assigning any  reason thereof. Provided such termination has to be supported by specific  clauses in the appointment letter.The probationers are not confirmed employees and there is no obligation on the Compoany to retain them. For them   the performance is the key criteria for his confirmation of employment.
  2. before termination you should intimate the employee in writing regarding his under performance and you have to give sufficient opprtunity for him to rectify/improve. In case if he fails, you are having all the option to terminate him from the empolyment ( this is applicable only to the employee whos service has been confirmed/ permanent).
  3. for probationers sending showcause notice is not advisable

thanking you

ashok

surya kaliyamoorthi (Assistant Legal Manager)     05 June 2010

Thanks to Asok, JanardhananVasu Responding me immediately.

1. Dear Asok,

we had explained in the offer letter, if the person is unable to show the result(Under performance), we ware constrained to terminate. Is it Enough to terminate...? Or as you told, we need to mentioned in the offer letter itself as the probationers are not confirmed employees and there is no obligation on the Company to retain them.

2. Dear Mr. Vasu,

1.  the problem before me is, we can expel the person with in a day for his under performance  is possible by law...?
( Reliable sources said the person is not coming to office properly...we also  not able to scrutinise the person directly whether he comes to office or not...? he is a sales man..)  



--
Thanks & Regards
Surya moorthi

Ashok. B.V. (Executive-Legal)     07 June 2010

Dear Surya

Yes that is sufficient to take proper action. As i told you, the probationers are not confirmed employee, the company is having all the rights to terminate his employment any time without any reason thereof.

As for as your case is concerned you may terminate him

surya kaliyamoorthi (Assistant Legal Manager)     07 June 2010

Thanks a lot.... Asok Ji......

V. VASUDEVAN (LEGAL COUNSEL)     07 June 2010

Dear Surya,

I don't see any logic nor reason if a company jumps to a conclusion of a probationer in a day or two. Any established company would have well founded systems for recruitment of employees and it is highly improbable that a candidate who has joined a company to start coming late to office the very first day- Even senior most employees undergo a process of induction and how does any company expect "performance" in day or two and how can such a factor be  a determinant for dismissal!

Basavaraj (Asst, Manager-Legal)     20 August 2010

I strongly agree with Mr.Vasudeven advise and line of arguemnt.

You can't terminate the person with immediatly, it shows the company's low level, like 3rd clasee systm.

Dhiraj Sharma (Manager-Human Resources)     21 August 2010

There are lot of SC judgements regarding termination of non-performing employee(s), citation is Labour Law Reporter. Following process is to apply:

  1. Sufficient documentry evidences on record available with management to prove one's non-performance.
  2. Documentry evidences that "Principle of Natural Justice", i.e., opportunity to defend has reasonably given to the employee for improve upon or proof that he failed to exhibit the competencies on which he got selected. (This is called Domestic Enquiry)
  3. Termination clause of service agreement should not be in contrast or silent on this issue.

However, the most practical solution is "Discharge Simpliciter" i.e., termination without casting any stigma. It is well settled SC Case Law that the company / establishment may terminate an employee on probation without stating reason(s) thereof. But in case we put stigma, e.g., "Non-Performance", then we have first to prove "Non-Performance" and application of "Principle of Natural Justice".

 

Regards,

Dhiraj Sharma

SANJAY JOIL (LAW STUDENT)     28 August 2010

Give the dog bad name and hang it. It depends on your  appointment letter.  But during probation, the employer can terminate employee without reason  if it is mentioned so in the appointment letter.

dhiraj dhaigude (student)     13 September 2010

Hello every body,

seeking ur advice on "What when the probation period is lapsed almost 9 months back and employee is terminated without giving ant showcause and prior intimation ?

waht if when once the priscribed probation period (1 yr)or may be extended as per the management" caluse is attached ?

What when  No communication is made to employee about neither his extention of probation nor his confirmation but he has been paid continuesly as a regular employee ??

is there any legal remedy for the person who is terminated during so called extened termination which is not given in writing nor provided as oppertunity to be heard....as voilation of principle of natural justice and condenmed without being heard.....

Pls suggest any leagl remedy as to go against employeer,

rgds,

Dhiraj D 

Venkatnarayanan (M.A)     28 September 2010

Hi Dhiraj,

I really approicate your posting hear , you have opned all members eys that where the corpoate companies are taking undue advatnge against its employees.

When after completion probhation peiord, some companies will not express anything, as stated by you. Where is the legal reamdy for this...

Let all our members express their opinion on this post...

shweta pereira (HR Buss Partner)     16 April 2012

Can an employee who is on probation be terminated for excessive leave and due to which he is not able to perform.


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