Industrial Relations And Labour Laws
Human Resources - Generalist
Hr / Business Consulting
Consultant In Legal Matters
Asst. Manager Hr
Human Resource Executive
If she is not performing well and she is into probation period then she can be terminated.
the procedure you can follow is; first you can issue an Show cause notice to her and give her some time (7 days) so that she can reply in writting the cause behind it.
If the cause justifies the situation then consider or otherwise after 7 days issue a termination letter.
14th October 2008 From India, Ambala
14th October 2008 From Singapore, Singapore
you have kept some one propabtion and her performance is not satifactory than you have to give him a chance to improve and you have to issaue letters to him for her weaknesses.
but in your case it seems you are not much worried about her performance but you are worried because she is pregnent and on this basis you can not terminate her services.very sad approach on Hr point of view.
j s malik
14th October 2008 From India, Delhi
In your case you have to see her expected delivery... if she works more than 80 days whether probation or temp you have to pay.....
15th October 2008 From India, Madras
I was pregnant while I was on probation ( in one of my previous jobs) , however handled a whole HR department alone as the HR manager resigned during my probation.
However if someone is not performing well during the probation then termination may be a necessary
15th October 2008
Always the employer would a ratify an agreement with the employee when he/ she join the company. And it is permissible by the law that an employee who is under probation can be terminated if the performance is not at all satisfactory.
And even in the probation period, if an employee requests for maternity leave (Maternity benefit Act 1961) the employer is bound to sanction it since it is the privilege of the employee. And the duration is six week before the delivery and six week after the delivery on the production of the medical certificates. Also the employer is liable to give three month salary at the time of maternity leave.
Severance Pay is not required, but the maternity benefit is mandatory.
Nothing prevents an employer from asking explanation from an erring resource or non performing resource. You can also mention in the show cause notice the time limit saying that if you do not revert in the stipulated time with a valid reason serious disciplinary actions will be initiated. If that resource does not revert in time you have every right to take immediate actions.
So now it is up to your discretion to decide whether to keep such an employee in your payroll or not.
If you have more doubts give me a call.
15th October 2008 From India, Madras
You cant terminate her unless there is strong reason.One more important thing to remember is she maynt accept the termination as she may be a top performer. You can only terminate her in only one way. i.e in case she doesnt come to office for 3-4 days without any prior information only then u have the rite to terminate her
Do let me know incase you require any inputs from my end
15th October 2008 From India, Hyderabad
You are mixing two issues together I guess.
Issue that may likely to fall under the Industrial Disputes Act, 1947.
Your contention is that, you recruited one female employee & kept her on probation. During her probationary period you found out that her performance is not upto the mark & she is not fit for your organisation.
Now you wish to terminate her services before she completes the probationary period.
Under the above circumstances you will have to check under what capacity she is employed. Whether she enjoys any protection under the Industrial Disputes Act, 1947 or not.
If she falls under the definition of Workman as per Section 2 (s) of the I.D. Act, 1947 she may raise an industrial dispute at later stage.
This will however not stop you from terminating her services provided you terminate her services by way of discharge simplicitor so that the termination will not amount to retrenchment. It will also not cast any stigma on employee. While terminating the services you will have to pay one months notice pay to the said employee.
The next issue is of Maternity Benefit Act, 1961.
If an employee draws salary/wages below than Rs.10,000/- p.m. & the area from where your company is operating is covered by the ESIC she will not be covered under the M.B. Act, 1961.
In my opinion even if she is covered under M.B. Act, 1961, it should not stop you from terminating her services by way of discharge simplicitor.
15th October 2008
Performance etc is no criteria,you will have to strictly follow the Naternity Benefit Act.Also see the Employee defenition inthe Act .It may be even construed as Sexual Harassment .
15th October 2008 From India, Bangalore
I agree with Mr. Afsal Abdulkhani
but even in the Maternity act 1961 is not saying that the employee is who is performing / not performing well in the organization then the management has all the right to take the necessary action towards the Employee
But you must be very care full while terminating to any emmployee, i appreciate to go through your appointment letter whihc has been issued to the employee at the time of joining the organization just follow the same with every individual employee of the organization......
if your, appointment is not clearly specifying that about the termination part then need to focus a lot before terminating the such said employee.
Better first discuss with that particular employee, about her inhibiting factors and then see where it is going wrong then take the necessary precaution towards the said employee, because as you said that she is probation period and pregnant
as she working with your organization since 80 days, by this particular time framing you cannot judge any employee performance, she has to mingle with the company and the projects what you guys have assigned to her/him...
before taking any action on that particular employee have discussion with her senior and then take the necessary precaution.
even then after discussion want to terminate her then take the reports from her about her pregnancy and then decide as per your company policies says, if not frame the policy immediately then take the necessay action with her, and coming to paying towards the compensation she is not entitle for the MB as she is not applied for the maternity leave, in due course see that the said employee will not apply leave towards the maternity, if she applies then your Organization has no right to terminate her being showing the bad performance and hereafter entitle to pay the salary for about 12 weeks.
I appreciate if you have again doubt about the same, then feel free to get in touch with the said contact number of email address
16th October 2008 From India, Hyderabad
I would suggest you to talk to her personally to know about her current situation and future plans and ask her why she is not able to perform up to mark. That can help you to decide the right action for such situation. Behave like an HR professional rather than an departmental clerk and think broad ; you will be able to understand what is the right action to be taken for such situation. HR;s job is to retain people and train and motivate them for better work rather than terminating them for small reasons in hassle.
16th October 2008 From India, Dharamsala
I don't know why some HR people never understand human values...I f she is pregnant then your termination is going to bring a lot of mental pressure on her and it could badly effect the child.. think on it before taking action...
16th October 2008 From India, Mumbai
But meanwhile I have learned a lot on Maternity Benefit Act. Thanks All for sharing your valuable knowledge..
Especial thanks to Rupesh for the notes :icon1:.
16th October 2008 From India, Ahmadabad
Pregnancy has nothing to do with her performance during Probation period. Build record before terminating her services such issue warning letter , create file memos, advisory memos etc before termination. Clause of Maternity Benefit Act is applicable to employee who is on maternity leave.
If she is in bargainable category, pl take care of principles of natural justice. so that in case if she goes for litigattion, you will not have problems
16th October 2008 From India, Mumbai
I agree to your point that pregnancy should not be an issue while terminating this employee.
However taking punitive action is very longdrawn process. One has to follow principal of natural justice, build a proper case against the employee & go through a painfull process of conducting enquiry & so on.At the end employee always says that, she is being victimised. This kind of cases to be handled very sensitively.
So in my view the method of discharge simplicitor is quite effective.
You need not to give any explanation or accuse an employee of non performance. Just issue a simple termination letter citing the clauses of appointment letter & give one months notice pay.
Employer has a right to recruit as also the right of termination.
16th October 2008
Termination of a employee always require showcause notice or warning letter. Employee can be terminated even if he is issued with letter of confirmation, if he does not perform according to the guidlines.
18th October 2008 From India, Ahmadabad
12th October 2012 From India, Shahkot
17th December 2012 From India, Shahkot
You have 2 issues at the same time, 1. About her performance 2. Pregnant . Both the issues are in different verticals so as a HR Person We Cannot go in with anything Which you have stated here .
provide disciplinary action during this period;
- terminates ones contract when she is pregnant;
- terminate ones contract during probationary period and ones is pregnant;
- if yes, is there any severance pay required?
What exactly We can do is just Showing our Humanity here no other GO.
1. Call her and find the problem with her performance ( because when we select a candidate we surely know that how they will performance) If really the problem is with the work then you can very well Talk to her directly about the resignation not termination .
2. You can tell her in positive sense that we are OK if you resign with in a week also , just take care of your health because health is more important then wealth . This gives the employee a great strength rather then go in Bad mood or disturbed situation which disturbs our business activity .
3. Get Every thing from her in clear paper written format ( Resignation Letter ) and Relive her accordingly .
4. Avoid Unnecessary issue while terminating unless and other wise it is mandatory by all means.
At every point we also consider labor laws, Human rights and so on..
This would be my choice always .,
18th January 2013 From India, Chennai
To: Ms Ibe. Annulika and Mr George Mushota.
CC: Human Resource, General Manager and CEO
Most recently complained that you were rude, belittling, and insulting each other at your front desks and in plain view. This was observed by other staff.
Within our own Finance Department, George Mushota complained that he was on the receiving end rude and unprofessional behaviour over the immediately stated him in office since last week of December. Since then, he has asked not to work with you or even be in your presence. Similarly, Ibe. Annulika has also asked that she not be assigned to work with you because of habitual rude and offensive behaviour.
Of great concern is your apparent failure to recognize or even admit that you people often overreact and lash out at each other’s. Employees are expected to work together as a team and expend whatever effort is necessary to provide quality service to the Premier Petroleum Limited as an organization. This is not to say that you cannot disagree with staff or other professionals. Rather, in addressing differences of opinions you cannot be combative, insulting, belittling, or rude. This only creates friction, diminishes morale and teamwork, and poorly reflects upon the Premier Petroleum Limited. You must show empathy, deal courteously with individuals, appreciate their differences, and handle emotions. When appropriate, you must show compassion for each other’s and recognize the contribution of each other as a team.
Equally important is that you need to listen to what others are saying.
In short, you both must agree to abide by the following principles by which you will conduct yourself in the workplace:
• You both will employ collective decision-making with your work’s and outside professionals and contacts to assure positive teamwork and maximize the goals of the Premier Petroleum Limited;
• You both will have respect for each other’s abilities, contributions, and values to the Premier Petroleum Limited;
• Ine Annulika will recognize that you can learn from your co-workers & Mr George Mushota.
• You both will deal with co-workers and others in a professional and courteous manner at all times.
• You will deal with conflict in a forthright and constructive manner and with tolerance for the differences of others.
1. In addition, I recognize that you may have certain ideas to improve your performance. Therefore, I encourage you to provide your own Personal Improvement Plan Input and Suggestions:
Employee Signature Date
Mr George finance manager replied
To Human Resource office : Att of Madam Nafisa. Iam very surprised in the first place to observe that iam receiving mail with contets of this nature from your office because administratively the office ranking does not allow you to do so. Iam officially holding an office which is higher than your office and you can not under normal circumstances raise any disciplinery issues against me. Coming to the issues that you have raised, may i help you to understand that there is no pressure in accounts at all. the only issue that seem to be a problem is lack of appreciation by my surbordinate to understand the accounting World. She does not really understand what accounting is all about therefore she is finding it very dificult to understand and appreciate why we should do certain things in accounts. It is not possible for some one to perform functions of an accounting officer when he or she has no knowledge of the basic accounting fundermentals. Anulika does not understand accounts therefore, she is misplaced and hence the confusion. Suffice to metion that your office is responsible for creating this messy. Iam even thinking that you have deliberately chosen to give me an accounting officer who does not know accounts so that i fail to perform my duties effectively.I have supervised more than 100 members of statt at once before, and i have recorded better supervising results all the time. I do not believe that Anulika should become an impossible case for me to manage. She simply does not have accounts Knowledge and she is therefore denting my management style each time i instruct her to perform accounting functions in accordance to accounting starndards. Your office (H.R) has imposed Anulika to work in accounts department when you know very well that she does not posses accounting Knowledge. Therefore iam instructing your office to correct this irregularity as soon as possible so that i can begin to work normally and proffessionally.
I was also extremly shocked when Anulika metioned in presence of the Chief Executive Officer that she has authority to approve payments. This way of thinking is what has created most of the misunderstandings because she is misguided. If her job discription authorises her to approve payments, then your office should be blamed for duplicating responsibilities. Accounts only allows one prrson to approve payments at a time. It is the responsibility of the Chief Executive Officer to approve payments and he has delegated this responsibility to my office at the moment therefore we cannot share the same authority with my surbordinate which is deligated to me by my superior.
Iam also disppointed to observe that your office did not take time to study and understand the so called "pressure" in accounts department before writting to me. May I take this opportunity to correct your understanding that there is pressure in Finance department. There is no amount of pressure in accounts, the only difference that is creating this artificial pressure is the fact Anulika does not know accounts. you have just imposed her on me. Finally Iam requesting that Anolika be re allocated to onother office because apart from not knowing her job, she does not cooperate with me in any way, She does not respect me as an elderly person and does not take my instructions each time i talk to her. May Management considers to give me an alternative person who is well up dated with accounting Knwledge so that i can effectively perform my assigments without expiriencing un necessary disturbances.
Thanks. Mr George.
Please suggest reply to mr george.
23rd January 2013 From United Arab Emirates, Dubai
1. Firstly see the circumstances why she is under performer ? Don't make pregnancy period criteria for termination.Obviously you can terminate probationary after giving show cause but termination of preganant women during this period is against HR pracitices.
2. Although she is on probation period, you have to sanction leaves and these leaves will be without pay.
3. Give some time to her to show the performance because pregancy period is very critical period for any lady and termination may create mental pressure on the lady. So, as a human being understand her situation. And from HR point , why did you appoint her without taking medical fitness certificate (in terms of pregnancy/other disease etc.)
28th January 2013 From India, Shahkot
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6th March 2013 From India, New Delhi
There you should to wait till the probation peroid, , because of each every company evaluate the performance of employee till the probation period., but after the probation period she does not perform satisfactory , then you should to terminate her from the job...
and the issue of pregnency , that should also be consider, , if she wants to take a leave in this case, then leave should be grant, for some days,,
but after completion the leave, and probation period she does not perform welll & satisfactory, then after you should to terminate her...
mere khyal se is situation me as a employye aur as a personal dono dekhna hoga..
kyuki HR me as a employye aur as a personal dono dekhna jaruri hoga..
12th March 2013 From India, Delhi
I need your suggestion on Case related to pregnancy.
Confirmed Sales executive got performance increment in April 2014 & put in PIP in August'14 for one month when she applied for Maternity Leave.
Employer has put her on PIP when she was 7 month pregnant. She was mentally depressed so much that She delivered 7 month premature baby & doctor also mentioned in discharge certificate that she is suffering from depression & stress.
So is it legally viable to put a confirm employee on PIP because of fabricated non performance story?
Lady is working in MNC Surgical Company as sales executive for last 2 years.
5th March 2015 From India, Mumbai
5th March 2015 From India, New Delhi
6th March 2015 From India, New Delhi
6th March 2015 From India, Madras
6th March 2015 From India, New Delhi
6th March 2015 From India, Kannur
Now let me know what should i do???
4th December 2017 From United Kingdom, undefined