Hi,
I need clarity on "How to terminate an employee during his/her probation period."
We are in the process of setting up a workforce for our client and require advice for the scenario below.
According to the policy, the average probation period is set to be six months for an employee. If an employee does not learn or perform well, or is found to be a poor performer, the organization can terminate the employee with a prior warning and notice.
The employee is identified as a non-performer with disciplinary issues. Despite performance indicators and one-to-one sessions with the superior, the activity or performance is unsatisfactory.
If the company decides to terminate the employee:
1. How should the termination be communicated to him/her?
2. What legal or statutory procedures need to be followed?
3. Should a termination letter be provided? If yes, what information should be included?
4. What privileges or rights does the employee have in this situation?
5. What if the employee disagrees and is unwilling to leave?
It would be greatly appreciated if fellow HR professionals could clarify the above questions.
Thanks in advance.
From India, Pune
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I need clarity on "How to terminate an employee during his/her probation period."
We are in the process of setting up a workforce for our client and require advice for the scenario below.
According to the policy, the average probation period is set to be six months for an employee. If an employee does not learn or perform well, or is found to be a poor performer, the organization can terminate the employee with a prior warning and notice.
The employee is identified as a non-performer with disciplinary issues. Despite performance indicators and one-to-one sessions with the superior, the activity or performance is unsatisfactory.
If the company decides to terminate the employee:
1. How should the termination be communicated to him/her?
2. What legal or statutory procedures need to be followed?
3. Should a termination letter be provided? If yes, what information should be included?
4. What privileges or rights does the employee have in this situation?
5. What if the employee disagrees and is unwilling to leave?
It would be greatly appreciated if fellow HR professionals could clarify the above questions.
Thanks in advance.
From India, Pune
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1. How to address him/her?
This question is not clear.
What kind of legal or statutory procedures should be followed?
Please refer to the appointment letter given to him or her. If the clause states that an employee on probation can be terminated upon completion or during probation without assigning any reason or notice period, then issue a simple Termination letter. The letter shall refer to the clause of the appointment letter and then state that the Management was not satisfied with the performance of the employee during the probationary period and hence he or she is being terminated with immediate effect as per the terms and conditions of employment. Please do not mention anything about discipline or productivity norms or attendance.
If there is no clause on probation or if you have not issued any letter, then he will be deemed to be a confirmed employee.
Since you have asked a specific question about a probationer, I am restricting my reply to probationer assuming a letter for Probation has been issued.
If there is a clause for a Notice Period during probation, then give that many number of days as the Notice Period.
Should we need to provide a termination letter? If yes, what is to be mentioned?
Yes, a termination letter needs to be issued. Please refer to my response above on drafting the letter.
What kind of privileges or rights does the employee have in this situation?
If there is no mention of a Notice period, then there is no need to give notice. All salary-related items should be settled, which will include the following:
- Wage/Salary for the period
- Encashment of Earned Leave
- Bonus if he falls under Bonus act (Payable only in the next accounting year when he claims)
What if an employee disagrees and is not willing to move?
This is a practical issue and needs to be handled carefully. If he is a unionized employee, you may need to take more precautions, not because they are entitled, but because we may not want to get caught unaware of unnecessary work stoppages.
If an employee still insists that he would attend, follow these steps:
- Ensure that his name is removed from Attendance and attendance recording machines. His entry then becomes illegal.
- If he has accepted the letter and signed having received the letter, then you may not have any issue. But if he has declined to accept, then post a letter to his last known address. Wait for three days. Then Post the letter on the Notice Board.
- Also post a letter on the Notice Board that he is illegally entering the premises and mark a copy to the local Police Station. Send a letter to his house address stating that he should refrain from entering else Police complaint will be lodged. Take photographs of his presence every day. Ensure that no work is allotted to him.
You must exhaust these procedures within a week's time marking copies to the Police station.
Then lodge a Police Complaint. In the meantime, publish the termination letter in a local newspaper or issue a statement in the newspaper that the employee has been terminated.
Follow steps as you may think fit at the particular point in time. But the rule should be that you should never show your disturbance and irritation; play it cool, do everything legal rather than using security to evict him.
T. Sivasankaran
From India, Chennai
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412This question is not clear.
What kind of legal or statutory procedures should be followed?
Please refer to the appointment letter given to him or her. If the clause states that an employee on probation can be terminated upon completion or during probation without assigning any reason or notice period, then issue a simple Termination letter. The letter shall refer to the clause of the appointment letter and then state that the Management was not satisfied with the performance of the employee during the probationary period and hence he or she is being terminated with immediate effect as per the terms and conditions of employment. Please do not mention anything about discipline or productivity norms or attendance.
If there is no clause on probation or if you have not issued any letter, then he will be deemed to be a confirmed employee.
Since you have asked a specific question about a probationer, I am restricting my reply to probationer assuming a letter for Probation has been issued.
If there is a clause for a Notice Period during probation, then give that many number of days as the Notice Period.
Should we need to provide a termination letter? If yes, what is to be mentioned?
Yes, a termination letter needs to be issued. Please refer to my response above on drafting the letter.
What kind of privileges or rights does the employee have in this situation?
If there is no mention of a Notice period, then there is no need to give notice. All salary-related items should be settled, which will include the following:
- Wage/Salary for the period
- Encashment of Earned Leave
- Bonus if he falls under Bonus act (Payable only in the next accounting year when he claims)
What if an employee disagrees and is not willing to move?
This is a practical issue and needs to be handled carefully. If he is a unionized employee, you may need to take more precautions, not because they are entitled, but because we may not want to get caught unaware of unnecessary work stoppages.
If an employee still insists that he would attend, follow these steps:
- Ensure that his name is removed from Attendance and attendance recording machines. His entry then becomes illegal.
- If he has accepted the letter and signed having received the letter, then you may not have any issue. But if he has declined to accept, then post a letter to his last known address. Wait for three days. Then Post the letter on the Notice Board.
- Also post a letter on the Notice Board that he is illegally entering the premises and mark a copy to the local Police Station. Send a letter to his house address stating that he should refrain from entering else Police complaint will be lodged. Take photographs of his presence every day. Ensure that no work is allotted to him.
You must exhaust these procedures within a week's time marking copies to the Police station.
Then lodge a Police Complaint. In the meantime, publish the termination letter in a local newspaper or issue a statement in the newspaper that the employee has been terminated.
Follow steps as you may think fit at the particular point in time. But the rule should be that you should never show your disturbance and irritation; play it cool, do everything legal rather than using security to evict him.
T. Sivasankaran
From India, Chennai
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Dear Visvickey,
Greetings...
I hope you are aware that the term "Probation" does not refer to a "Confirmed Appointment." The period thereof allows time for a newly recruited employee to evaluate his job profile, learn about the employer's expectations, understand the importance of the work he is handling in the overall system, take training to achieve perfect results, identify efforts required to perfect and improve the quality of work to be delivered, and develop better relationships and coordination with other departmental staff and management.
At the same time, probation is also a period given to employers to coach and train new employees, employees placed in new positions, and employees with performance problems.
It may please be noted that cessation of employment (abandonment/termination of employment) is a two-way clause but surely favors the employee. While submission of resignation and not serving a notice during probation seems an inherent right of the employee, termination of an employee during probation is subject to establishing the reason for such action by the employer. Termination without establishing the cause of action is a punishable crime, and there is a possibility that the employee may come back with a reinstatement order from the appropriate authority, which may thereafter become a constant source of nuisance.
In such cases, it is customary to issue at least two notices/warnings for non-performance/misbehavior (or whatever) and extend his probation suitably, allowing him time for improvement. If he does not improve even thereafter, he may be terminated with the issuance of a Termination Letter. Please note that in the Letter of Termination, reference to the notices/warnings issued to him should be included. Time allowance as a sanction on the extension of probation should also be mentioned in the Letter of Termination.
Regards,
From India, Pune
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Greetings...
I hope you are aware that the term "Probation" does not refer to a "Confirmed Appointment." The period thereof allows time for a newly recruited employee to evaluate his job profile, learn about the employer's expectations, understand the importance of the work he is handling in the overall system, take training to achieve perfect results, identify efforts required to perfect and improve the quality of work to be delivered, and develop better relationships and coordination with other departmental staff and management.
At the same time, probation is also a period given to employers to coach and train new employees, employees placed in new positions, and employees with performance problems.
It may please be noted that cessation of employment (abandonment/termination of employment) is a two-way clause but surely favors the employee. While submission of resignation and not serving a notice during probation seems an inherent right of the employee, termination of an employee during probation is subject to establishing the reason for such action by the employer. Termination without establishing the cause of action is a punishable crime, and there is a possibility that the employee may come back with a reinstatement order from the appropriate authority, which may thereafter become a constant source of nuisance.
In such cases, it is customary to issue at least two notices/warnings for non-performance/misbehavior (or whatever) and extend his probation suitably, allowing him time for improvement. If he does not improve even thereafter, he may be terminated with the issuance of a Termination Letter. Please note that in the Letter of Termination, reference to the notices/warnings issued to him should be included. Time allowance as a sanction on the extension of probation should also be mentioned in the Letter of Termination.
Regards,
From India, Pune
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I have reviewed the user's input and made the necessary corrections below:
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Would like to clarify the last paragraph of Soumitra. Always create records of non-performance, issue letter, oral communication will be of no use. Don't use the word "warning" as it is considered a stigma by courts. If there is hope that the employee's performance will improve, then only the probation period may be extended by letter. Also, don't use the word "termination" if required. Mention that 'you will cease to be an employee after working hours of xxxx'. Refer to the clause number of probation in such a letter.
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The text has been corrected for spelling, grammar, and punctuation errors, as well as ensuring proper paragraph formatting.
From India, Mumbai
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Would like to clarify the last paragraph of Soumitra. Always create records of non-performance, issue letter, oral communication will be of no use. Don't use the word "warning" as it is considered a stigma by courts. If there is hope that the employee's performance will improve, then only the probation period may be extended by letter. Also, don't use the word "termination" if required. Mention that 'you will cease to be an employee after working hours of xxxx'. Refer to the clause number of probation in such a letter.
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The text has been corrected for spelling, grammar, and punctuation errors, as well as ensuring proper paragraph formatting.
From India, Mumbai
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