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Adding,

Only in a FIXED TERM CONTRACT, employer posses right to terminate any employee without any reason during probation period. But a notice period needs to be provided or payment in lieu of it.

Understand this, if any appointment letter is drafted with a clause or similar to it ,that an employee will be under probation period for 6months (less then or equal to 1year) & post that employee will become permanent employee if he/she clear probation period, then we cant called it as FIXED TERM CONTRACT.2- As terms of contact will also be liable to change & both parties have to accept it for continuation of service. If employer does not add this, then if Appointment is challenged, legally it will be accepted as rules of government keeps changing, & hence for long term service conditions are subject to change.

It is considered, that employee decided to join the obligation keeping in mind that he/she will clear probation period & will work for a long time. Here, if employer, says 'You are terminated', means that you are terminated.

Again say, employer is hiring contract employee, appointment letter contain a fixed term of service. Here, employer posses all rights to terminate an employee without stating reason but notice period is mandate or payment in lieu of it.

From India, Mumbai
Hi,

Gaurav,

If you have your appointment letter with you, please confirm that, whether there is any clause like this:

1. Clearly stated that during Probation Period of 6 months, without prior notice, notice period & reason, company posses the rights to terminate. (This form the basis of fixed term contract, when we have to consider any issue related with termination during probation period).

Only in this case employer posses right to terminate an employee without stating reason of termination ,any prior notice & notice period. But I am sure 98% of the employer don't add this clause in appointment letter, else practically no employee will accept the offer.

or Just a clause is mentioned like this or similar in nature:

2. That your probation period will be of 6months, and your service will become permanent once you clear successfully the period of probation.

3 Is there any clause mentioned that , your terms of service will be subject to change in future by the company as per business requirement & continuation of service will depend on mutual agreement.

If any of the clauses 2 /3 or similar to it is mentioned in appointment letter or offer letter, then Company is liable to terminate any employee without any prior notice during probation period, but reason needs to be specified & valid one. Company can take a stand of not stating the reason of termination to employee (exceptional case), but if decision is challenged in labor commission/ labor tribunal , then company have to state the reason & have to validate it.

Regards

Sovik B

From India, Mumbai
Adding,

The moment Termination of Service, occur in case of probationary employee, without stating reason of termination in documents, we have to consider the case as 'Layoff' & not due to termination on disciplinary ground.

If such employee join any other organization, showing previous experience, we have to consider as layoff reason is there is not sufficient documents evidence proving that employee is terminated on disciplinary ground in previous company.

If during verification, previous company provide a written (Forget about verbal) feedback that, employee is terminated on disciplinary ground, and there is a mis-match in version of employee & previous organization, employee cant be considered as candidate with Red verification report. Because in relieving letter, no reason of termination is mentioned, which is provided by same old employer- a contradiction. If claim nothing like such incident took place, then employee have to be given a chance for explanation. With both documents if employee goes to court, and claim previous employer is trying to harm the employee financially, previous company can defend. On first hand, why previous company failed to mention, reason of termination on documents? And why they are claiming now, so? Maximum Employer don't prefer to do this, advantage of employee.

If, employer, mention in relieving letter/termination letter, of a probationary employee that he/she has been terminated on disciplinary ground, domestic enquiry forms a mandate (This is not termination due to poor performance).

From India, Mumbai
Please ignore my last comment, correct comment is this one:

Adding,

The moment Termination of Service, occur in case of probationary employee, without stating reason of termination in documents, we have to consider the case as 'Layoff' & not due to termination on disciplinary ground.

If such employee join any other organization, showing previous experience, we have to consider as layoff reason is there is not sufficient documents evidence proving that employee is terminated on disciplinary ground in previous company.

If during verification, previous company provide a written (Forget about verbal) feedback that, employee is terminated on disciplinary ground, and there is a mis-match in version of employee & previous organization, employee cant be considered as candidate with Red verification report. Because in relieving letter, no reason of termination is mentioned, which is provided by same old employer- a contradiction. If claim , like such incident took place, then employee have to be given a chance for explanation. With both documents if employee goes to court, and claim previous employer is trying to harm the employee financially, previous company cant defend. On first hand, why previous company failed to mention, reason of termination on documents? And why they are claiming now, so? Maximum Employer don't prefer to do this, advantage of employee.

If, employer, mention in relieving letter/termination letter, of a probationary employee that he/she has been terminated on disciplinary ground, domestic enquiry forms a mandate (This is not termination due to poor performance), so that they can defend themselves if challenged that the case is genuine.

From India, Mumbai
Hi friends,

This discussion is getting interesting, particularly the debate on RTI Act. For the past 7-8 years I am dealing with RTI matters in my company (govt), among other things. I have also personally obtained information under RTI from various public authorities (some successful, many not). Sadly, when information is sought, every public authority tries not to divulge information. Everyone will agree that the RTI Act applies to public authorities alone, and public authority has to notify a Public Information Officers (PIO) and APIOs (if required), and Appellate Authorities. I have not come across any private company having a PIO, simply because the Act does not apply. However, information relating to private companies can be obtained when it is controlled by or reporting to any govt authority (by itself a public authority and will have PIOs an AA). One may get information on private companies from the Registrar of Companies (a public authority). But what information can be sought? The information companies provide to ROC are, say ownership profile, details of directors, liabilities etc. Similarly, listed companies will give certain reports to SEBI regarding issue of shares, profitability, quarterly/annual returns, balance sheets etc. Such information can be available to public through PIO of such authority. But, not routine administrative matters relating employment of persons, their increments, pay, terminations etc. On the contrary, such information can be sought from govt companies which are public authorities. Disciplinary matters included, because of Article 311 of the Constitution, where it is mandatory to issue charge sheet and hold enquiry. This is not applicable to private companies. In private companies (in PSUs as well) disciplinary proceedings applies as per standing orders where its workmen are covered by it. Still service matters of workmen in private companies will not come under the purview of RTI, as far as I know. You may get information on welfare facilitates, safety measures etc. of a private company, through Factories Directorate of a State, since companies file periodical returns to this authority.

If the argument is taken for granted, what is the question that you are going to ask (which authority, Registrar, SEBI, Factory Inspectorate???)? The question is reproduced here:

3. If answer of your separation / termination is not mentioned, contact a Lawyer and sent a mail with query Under RTI Act, your reason of termination or separation.

Which authority possesses this information, other than the private company? Especially, when the information relating to an executive? If any of the PA, if at all, directs to give an answer, the readymade and simple answer is “unsatisfactory performance during probation period”. It is not easy to challenge this contention. If one enters a legal battle, which will take 15-20 years of litigation (from civil court, several rounds in high court, supreme court – remember the opposite party is a company, which has the resources to fight such legal battle. In my view, as far as executives in pvt companies are concerned, it is hire and fire policy that prevails.

Pls see the attached file, para 22 where it is mentioned PA should provide reasons for the decisions taken to the affected parties. Two categories of persons can apply for information under this. (1) Employees of the PA for reasons of any action/decision (2) citizens affected by the decision of the PA, say a Village office failing to provide any service. Can you say service matters of a pvt company come under this?

A presentation is also attached for the interested.

From India, Bangalore

Attached Files
File Type: ppt Right to Information Act, 2005 rev.ppt (486.0 KB, 70 views)
File Type: pdf Guidelines for Pub Authority.pdf (603.2 KB, 48 views)

Hi,

VK Sajan,

This discussion is really interested now. For discussion, let us first ignore probationary period, Let us consider a Regular permanent employee of PVT company.

If Reason of termination is not provided by a PVT company, it can be considered as Unfair Termination under labor law. Now, Labor law permit an employee to seek justice from Labor commission (It is not a Private Body). Labor commission posses rights to get such information's from PVT companies too & not only limited to public companies. This power is provided by labor laws. Labor commission is a Public Body, since its activities are funded by Government.

Since Labor commission is a Public Body, RTI Holds good for it. If a complain is lodge in labor commission, it has power to seek information from PVT companies too, regarding its labor practice.

If a complain is lodge,PVT companies in 99% cases at least for cases like termination (Minor One), co-operate with such bodies for a negotiation. That is the stand we all take to avoid further legal battle- non productive one. If someone seeks information, against a complain made, if Labor commission possess information, they are supposed to provide under RTI.

So, if Labor commission, come to know about Reason of Termination, for a particular complain, they are supposed to provide the same, under RTI to person who is complaining. Got it.

Now, for termination of an employee under probationary period, three factors needs to be considered:

1. Whether in agreement it is clearly mentioned that, during probation period employer can terminate an employee without notice, reason of separation, & notice period.

If this clause is not mentioned, company posses right to terminate service of employee without notice & without any reason of why notice is not provided. But a reason needs to be provided.

Supreme Court, in its judgment has said for probationary employees, employment can be terminated without providing a prior notice & without a reason for not providing notice. But still reason of termination, is important.

If Reason of termination is not provided for probationary employees termination in written, it can be concluded as a LAYOFF too. Which is fine. For poor performance its fine too. No need to challenge. Its fair, part of life, there are more opportunities left yet to come.

But if termination is made on disciplinary ground, domestic enquiry become important. For Instance forget this case, say an employee is terminated on disciplinary ground, and charges against him is sexual harassment or sexual abusion. Under such scenario, when serious allegations are made, appeal for justice will not be limited to Civil Court but also criminal Court.

Here if employer decided to remain silent, employer will harm other organizations too. Here comes the importance of Cause of Termination.

Try and understand my stand, if termination is made on disciplinary ground, still its fine if reason is clarified. It cant harm someone's career right. Question here is not challenging decision of company.

If I was in Gaurav's Place I would have said to the HR, I Respect Your decision, thank you. But my point is provide a reason of termination in clear details. If I was in Gaurav's Place, I would have shown the same experience to my next employer, honestly. I would have said, I was terminated on disciplinary ground, stated in my Relieving letter but still I was innocent as domestic enquiry never happened. And in the reason of termination, it must be present that company has sponsored alcoholic drink in the party.

If company don't wish to provide this, then we have to use other option to get it done, from the company. ITS ALL ABOUT PROVIDING JUSTIFIED & HONEST REASON OF TERMINATION & NOT CHALLANGING THE DESICION.

From India, Mumbai
Hi

All,

Be it a private company or public, be it permanent employee or probationary, if you are saying officially in papers that ' the employee is terminated on disciplinary ground', ensure to conduct a domestic enquiry first, its a must criteria, because its a serious allegation , disciplinary ground can means a lot and case may not be limited to civil court but also to criminal court.

2nd, if possible try do show other reason for termination of service, try to specify it, but for heaven sake, don't use 'Disciplinary Ground' unless its not very important. I have seen, by my own eyes how an IR officer burnt her ass. Lost job, paid fine, company was imposed a fine of 500,000 INR! Don't stay in illusion that no one cant do anything, and if employee seek legal option, then case will continue for 10 years or 20years.

We, businessman (Including me) don't wish to waste time in Court for such simple reason because

1. We are not enemies of employees.

2. If someone went to court, then somewhere he is willing to say something, we try to negotiate outside but first listen what he/she have to say.

3. Such issues, create a panic among other employees, fear of job security, unfair environment. It increase my attrition rate. Additionally Goodwill loss in market.

4. Why we should pay our lawyer for a non-productive case, where there was a high chance of resolving it within office by a matured HR/IR. I will prefer to remove such HR's who adds my cost unnecessarily.

5. The procedure I mentioned about RTI, involving labor commission, I have seen this by my own eyes. Only PVT company was a famous JUTE MILL. Even Government went for a intervention. Only difference is employee was a permanent employees not probationary.

6. I have said multiple times, this is not a case of layoff, performance related issue, if it was so, its fine. Mention it on papers or not, it hardly matters. But ensure something, if it is on disciplinary ground & you don't mention it on papers, no domestic enquiry, no written evidence from employee showing that you have tried to understand the case/taken measure, you are burning your own hands. If that employee shows that experience in some other company , & in feedback you claim that you have terminated that employee on disciplinary ground, you are hammering last pin in your coffin (If you don't show disciplinary ground on 1st hand ensure never to show it by any means, what ever happens in future, but at your own risk) . You have nothing to defend with. If case goes to court, circumstantial evidence, domestic enquiry report, liabilities report , previous allegations etc will decide your fate.

We are businessman, we invest money for profit & HR/IR is not my son in law or employees are my son. We care profit nothing else. Its better to remove such arrogant HR who don't think in 360' angle about what might happen in future & only complete a task based on present requirement . Sorry boss, truth of life.

This is an honest attempt to open eyes of HR's. Nothing Personal & its totally professional.

Over & Out

Regards

Sovik B

From India, Mumbai
Rahul,
Just wanted to ask why should management listen to you? If they listen to you and give one chance to you then company is actually encouraging other staff to do such stuff. Come what may you cant create a scene. If your management is not listening to you I think there is nothing wrong.
Anyways whatever has happened has happened. Please do not repeat such foolish mistake.

From India, Pune
Dear Sweet Sister,

Monica,

I want to ask you something very different from this discussion, not at all related to this discussion, friends please don't consider this post as part of this discussion. Forget about all industry, let us consider only IT/ITES industry.

I have a few question to you, as you are a well educated, well experienced HR, my knowledge & skills are not at all comparable with you. I have worked with a few fortune 500 companies in past, but not in core HR.

Q. In which country concept of HR taken place?

Q. What is the difference between old Personal management & Human Resource Management?

Q. Why in present industry we use HRM, instead of PR or IR?

Q. Why Human Psychology forms an essential part of HRM?

Q. Do HR's in IT/ITES wish employees to form Trade Union, Staff Association etc? If yes, let us all know that, so that we can decide what stand we should take in future?

Q. What additional flavor alcoholic drinks adds in a party? Why company sponcer them, irrespective of the fact that people lose their senses after getting intoxicated?

Q. As HR, what is their basic role in grievance handling?

Q. Does seniors mean 'Prime Minister of India'? If yes, then let us know? In that case, I will never work in any small company, except any fortune 500 companies or will do business?- I am Scared dear, sis! as I am not president of India or US.

Q. If any employee joins any organization, whose service he/she joins, HR's, MD's , CEO's, Process head or the company's?

Q. Once a VP, of Fortune 100 company asked me, (2000 billion USD Company), in which side I will stay post MBA,Employees or Employers? (My designation during that time was of a simple ground level executive, I use to know him only because we use to work in same company, during that time I was a student of 2years, regular MBA & was just chit chatting with him) Same question I have for you dear sweet Sis?

(FYI my answer was, I am at company's side, I will do whatever I need to do, to keep reputation & profit of my company. But, employees will be like my assets in balance sheet. In business we follow give & take policy.)

I don't know why those sort of activities don't happen with me, what happened with Gaurav, yaar, this is not fair. I think before taking this sort of measure you all HR's think what will happen, if the guy turn out to be a devil, right, sis?

Over & Out. Take care, sweet Sisee Monica.

Regards

Sovik B

MBA- HR & Finance

B.Sc, Mathematics Honors, Ramakrishna Mission VC College, Rahara

Under- University Of Calcutta

Managing Director

S.S ENTERPRISE

From India, Mumbai
To All Human Resource Professional, we don't know whether we would be able to help Gaurav or not, but can we all take an Oath today, that irrespective of Caste, Creed, Color, Sex, religion, that we will not support or encourage alcoholic drinks or any intoxicating product, in office premises or official parties. We will not allow any such request.
If, due to any reason, we fail to convince management, then still we will not participate in such get together with a glass of liquor. We might be too small to change others but at least, can we change ourselves?
Until & Unless, we take a stand today, this story will repeat again & again. Forget about laws , rules & code of conduct, can we try this honestly for sake of morale.
If no, then we are in a mood that we will not learn even from practical case studies.

From India, Mumbai

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