Can an employee under probation be relieved without any justification/ reason.
following are the terms mentioned in appointment letter which,he came to know only
after 3 months of joining because company issued it after a delay.
1) 3 months notice from either side needs to be given while on probation or confirmed
2) Performance will be evaluated after 6 months of probation, if found satisfactory
will be confirmed.
No evaluation is done after 6 months as no assignments/ KRAs were defined during
6 months.
After 9 months employee received a call saying he will be required to look for another job his chemistry do'nt match with HOD.
Need advice on what steps my friend can take.
From India, Ahmadabad
following are the terms mentioned in appointment letter which,he came to know only
after 3 months of joining because company issued it after a delay.
1) 3 months notice from either side needs to be given while on probation or confirmed
2) Performance will be evaluated after 6 months of probation, if found satisfactory
will be confirmed.
No evaluation is done after 6 months as no assignments/ KRAs were defined during
6 months.
After 9 months employee received a call saying he will be required to look for another job his chemistry do'nt match with HOD.
Need advice on what steps my friend can take.
From India, Ahmadabad
An employee does not exercise any lien on employment during probation. Normally the appointment letter will show that the service during the probation period shall be terminated without any reason and without giving any notice. That means no cause is required to make an end to the contract of employment during probation. At the same time, if the termination is on the ground of performance, then you can ask for proof of non performance and demand that the employee was not granted any opportunity to proof his performance. Therefore, even if the reason for termination is bad performance, the termination letter will not specify any reason but just say that following clause No...of appointment order/ contract of employment, your service stands terminated with effect from...date. That' s all. and that termination is valid also.
In some cases, by negligence or by being over confidence, the HR used to play smart by calling upon the employee and saying that your performance has been poor and that you are going to be terminated. This will end up in difficulties unless you have proof of bad performance and unless you have given adequate opportunities to the employee to improve it.
Madhu.T.K
From India, Kannur
4193In some cases, by negligence or by being over confidence, the HR used to play smart by calling upon the employee and saying that your performance has been poor and that you are going to be terminated. This will end up in difficulties unless you have proof of bad performance and unless you have given adequate opportunities to the employee to improve it.
Madhu.T.K
From India, Kannur
Thanks for Quick reply,
I have one more point to understand here, isn't employer required to intimate extention of probation period.
There is no base for poor performance as no assignment was alloted, he was recruited to replace one person who had earlier resigned (after working for long time with company) but suddenly that person took back his resignation and newly appointed fellow was duplicate position, so easy option for managment to remove new one.
I think this kind of gamble should not be done with someone's career.
Can you suggest some remedies against company.
From India, Ahmadabad
I have one more point to understand here, isn't employer required to intimate extention of probation period.
There is no base for poor performance as no assignment was alloted, he was recruited to replace one person who had earlier resigned (after working for long time with company) but suddenly that person took back his resignation and newly appointed fellow was duplicate position, so easy option for managment to remove new one.
I think this kind of gamble should not be done with someone's career.
Can you suggest some remedies against company.
From India, Ahmadabad
For extending probation there is no need of any communication but for confirming service a written communication is required. That means until a communication of confirmation is given the employee is deemed to be on probation only.
It may be true that when an existing employee on notice period withdraws his resignation the newly employed person would have become surplus and that would have forced the employer to terminate the service of the new person. There is no other way. Just understand that every decision involves an element of risk. A decision of change in employment also involves a greater element of risk. The risk may be due to several reasons. Even an experienced person may find it discomfortable at a new place and that may lead to his resignation or the employer asking him to leave. It is certainly unfortunate but we cannot blame any one for this.In the present case also what has happened is due to this risk.
Madhu.T.K
From India, Kannur
It may be true that when an existing employee on notice period withdraws his resignation the newly employed person would have become surplus and that would have forced the employer to terminate the service of the new person. There is no other way. Just understand that every decision involves an element of risk. A decision of change in employment also involves a greater element of risk. The risk may be due to several reasons. Even an experienced person may find it discomfortable at a new place and that may lead to his resignation or the employer asking him to leave. It is certainly unfortunate but we cannot blame any one for this.In the present case also what has happened is due to this risk.
Madhu.T.K
From India, Kannur
Dear Mr Madhu.T.K,
My query is with respect to the first paragraph only. You have written that "For extending probation there is no need of any communication but for confirming service a written communication is required. That means until a communication of confirmation is given the employee is deemed to be on probation only."
However, one of the HR consultants, who is lawyer by profession and handles labour cases told me the exactly opposite. He had told me that probation by itself will not get extended unless it is extended by the employer with specific communication to the employee. If employee does not receive any communication then he is deemed to have been confirmed.
However, he had told me this some 5-6 years ago. Later any changes took place that I did not know.
In view of the contradicting opinions, would you mind to give reference of verdict of any court of certain section of labour law?
Thanks,
Dinesh V Divekar
From India, Bangalore
My query is with respect to the first paragraph only. You have written that "For extending probation there is no need of any communication but for confirming service a written communication is required. That means until a communication of confirmation is given the employee is deemed to be on probation only."
However, one of the HR consultants, who is lawyer by profession and handles labour cases told me the exactly opposite. He had told me that probation by itself will not get extended unless it is extended by the employer with specific communication to the employee. If employee does not receive any communication then he is deemed to have been confirmed.
However, he had told me this some 5-6 years ago. Later any changes took place that I did not know.
In view of the contradicting opinions, would you mind to give reference of verdict of any court of certain section of labour law?
Thanks,
Dinesh V Divekar
From India, Bangalore
There are a lot of cases held on this topic and the views expressed by the learned judges have been similar. I have attached tow cases for your perusal. Regards, Madhu.T.K
From India, Kannur
From India, Kannur
Dear Mr Madhu.T.K,,
Thanks for sharing the documents. Due to paucity of time I could go through only one case and not the both the cases. The Hon'ble judge has dismissed the petition. But then the judgement does not set any time frame by which probationer should be confirmed. Taking benefit of this judgement, what if the employer terminates an employee after three or four years?
Anyway thanks once again.
Dinesh V Divekar
From India, Bangalore
Thanks for sharing the documents. Due to paucity of time I could go through only one case and not the both the cases. The Hon'ble judge has dismissed the petition. But then the judgement does not set any time frame by which probationer should be confirmed. Taking benefit of this judgement, what if the employer terminates an employee after three or four years?
Anyway thanks once again.
Dinesh V Divekar
From India, Bangalore
Probation is the period which a person is expected to get in order that his skill matches with the job profile. This is also the time one should get in order to align himself with the new organisational culture. Depending upon the nature of job it may be six months, one year or even three years. It also depends upon the policy of the company. An employee may complete the process of knowing the job and knowing the organisational culture etc in lesser time also. In such cases there can be an early confirmation. If, on the other hand, if he does not prove to be efficient to do the job, his probation can be extended and it may go without any time limit. In such scenario, the employee himself should observe what is wrong with him and what should be done to improve it. You cannot judge yourself but can only try to establish what you are. If he finds that he is not performing to the expectations of the employer, he can take a call, either he can demand the employer to give training on the area where he is lacking or can leave the job.
Though appointing an employee on a fixed term contract (FTC) and keeping on renewing for years is considered to be an unfair labour practice under the Industrial Disputes Act, law has not touched the act of employers keeping an employee under probation for years by extending it on the ground of poor performance. This is because nobody other than the appraiser can say about the performance of an employee. No law will insist the employer to keep a bad performer. If performance is poor and that is communicated to the employee, it is up to the employee to decide whether to continue with the employer or not. Here, no law will say that employee should work for an employer with whom he does not want to work. If the demand for labour is high, an employee will not find difficulty in getting a job. Similarly, if the supply of labour is low, naturally, the employer will not let an employee leave his organisation at any cost. This is a common phenomena.
Madhu.T.K
From India, Kannur
Though appointing an employee on a fixed term contract (FTC) and keeping on renewing for years is considered to be an unfair labour practice under the Industrial Disputes Act, law has not touched the act of employers keeping an employee under probation for years by extending it on the ground of poor performance. This is because nobody other than the appraiser can say about the performance of an employee. No law will insist the employer to keep a bad performer. If performance is poor and that is communicated to the employee, it is up to the employee to decide whether to continue with the employer or not. Here, no law will say that employee should work for an employer with whom he does not want to work. If the demand for labour is high, an employee will not find difficulty in getting a job. Similarly, if the supply of labour is low, naturally, the employer will not let an employee leave his organisation at any cost. This is a common phenomena.
Madhu.T.K
From India, Kannur
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