Dinesh Divekar
Business Mentor, Consultant And Trainer
Saswatabanerjee
Partner - Risk Management
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Arunachala Nataraj
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AdChetan
Operations Manager
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Hi,

If an employee is on probational offer letter of 2 mnths and gets paid for the 1st mnth. However, before completing his 2 mnths tenure of probation he misbehaves with the manager, uses electronic device and argues on the facts; though, all misconducts mentioned herein are communicated and signed by the employee during the recruitment which also mentioned that it may lead to termination depending on the severity of the issue; the employee is terminated.

The employee accepts the facts verbally but refuses to accept them on papers. Also demands for salary for the days he came to work before creating the Nuisance and getting terminated. Although, the rules and regulations communicated with the employee during recruitment do not specify he wld be paid in case or termination; nor do they specify he wld not be paid.

My question is whether this employee is entitled to get paid? This termination is on basis of 3 points of misconduct mentioned in the rules and regulations signed by the employee and all these 3 misconducts happened in a single event.

Regards,
AdChetan
Dear AdChetan,

You have quoted three misconducts on the part of probationer viz. he misbehaves with the manager, uses electronic device and argues on the facts. The first one needs clarity, what exactly was the misbehaviour, the second one could be minor misconduct and the last one is may or may not be a misconduct.

You wish to award him punishment for his alleged misconducts. But then did you counsel him? Is he is inexorable to your counselling? Termination is easy but then you will increase your recruitment cost. Why jump directly to termination? Why not to give show cause notice and give him some warning letter? Hire and fire policy is good but then it scares employees and vitiates the organisation's culture. Are you prepared for that?

Termination is the most severe punishment. There cannot be any other severe punishment than this. Yet you wish to go further and award him something extra in the form of forfeiture of wages? This violates the principles of natural justice. You cannot have more than one punishment. Something "extra" to withhold monthly salary is more out of grudge. Gentleman, tell your management not to waste time in nursing grudge against some delinquent probationer. There are lot of other important things to do. Therefore, pay him till his last working day and move on.

Thanks,

Dinesh Divekar


Since the employee is in probation period, it is better to terminate him him simpliciter instead of awarding him punishment because that would be tedious process after conducting domestic inquiry. Under the Shops and establishment Act, you have to make full and final payment of dues at the time of discharge.
Dear AdChetan,
You have received suggestions from our seniors. Here's a request, let the employee misbehave and not the employer.
Termination is enough, deducting pay is not. The employer had chosen to hire him in the first place. Hence, release him and set him free.
I have few questions :

Is it an office set-up or an factory environment that you are in ? I would like to know your company's business as I have not seen many companies issuing offers with 2 month probation period.

As HR, please check the nature of the mis-conduct. Arguing with the superior is not a mis-conduct strong enough to be terminated (unless one uses abusive language) and use of electronic devise is not a crime, although it may be against some company's policy. However, in case of emergency, such company policies have to be relaxed. So, the question is, "What is the mis-behaviour"? Is it related to some work assigned or some personality aspect ? Please check and evaluate.

Going by your write-up, I feel that you people have already made up your mind to get rid of the employee. In that case, ask him to resign. If he refuses, then issue him a termination letter and relieve him after paying him for the days he's come for work. If he's done some fraud which has costed the company in terms of money, then you may hold his salary. But then you need to remember, that an aggrieved employee has other doors to know upon for redress his complaints. However, if you have mentioned clearly in the offer/appointment letter that his employment during the probation period can be terminated without giving any reasons, you can go ahead.
Unless your standing orders specifies that the specified misconduct is (or can be) punished with penalty, you can not impose a penalty. Refusing to pay salary for the period actually worked is imposition of penalty. So you can't do it.
Even if penalty is I posed, it must be related to the misconduct and to recover losses incurred or potential loss. Which I suspect is not the case above.
So he is entitled to his salary till the date of misconduct, as he claims.
hello Mr dinesh diwaker What is the purpose of probation period in favor of Employer
I agree with Deeptii. All the actions from the employee's end were mentioned in the standing rules of the company policy. Also it was clearly mentioned that they wld lead to termination. Also I have clearly mentioned that employee agrees to the facts verbally but is not willing to accept facts on papers/warning letter. What shld be done now. We are a BPO in Gujarat.
Regards,
AdChetan.
'purpose of probation period in favor of Employer' is to examine the suitability of the candidate to the post he is employed. If employer does not found work & conduct of the candidate suitable, he should be simply relieved while paying his all dues without assigning any stigma to career of the candidate unless there are serious allegations.
Only raising allegations do not have sound footing to stand before the scrutiny of law. Other suggestions coming above are good and to the point and I appreciate.
Thanks
V K Gupta
All members have given valuable advise. Mr. Saswata Banerjee has already clarified that the incidence has to feature in list of misconducts and penalty that you wish to award should be the penalty per the standing orders.....

BPO's are covered by Shops and Commercial Establishments Act and standing orders are applicable. If standing orders are not certified Model Standing Orders shall apply and Misconduct is clearly specified in these. Gujarat followed Bombay Shops and Commercial Establishments Act and now Gujarat Shops and Commercial Establishments Act is available on the website of Dept. of labor Gujarat. Until or unless exempted standing Orders shall apply.

Employer personally is held responsible for faithful observance of standing orders.
Therefore act in accordance with standing orders and if these do not apply then in accordance with service rules and regulations........Termination seems to be too severe and harsh.....

It is certain that wages till last date in office have to be paid along with service certificate on last day in office.
You can not forfeit the wages.
As rightly said by Mr. Doaba, termination after following domestic inquiry may be held to be too severe punishment so it is better to send him off during probation as per Model standing orders applicable to Bombay shops and establishment. Sometimes easier process gives peace in longer run than to teach moral lessons to a child before he becomes adolescent/adult.
Dear AdChetan,
You have quoted three misconducts on the part of probationer. First you have to go deep into the details of selection process. What were the motivational level and highly accepted approach of a probationary at that time. Obviously High? Then you should identified his behavioral trends either that probationary misconduct to you or misbehave to everyone? You have to differentiate in these two words and then you should work on what could be the reasons of such dareness at probationary part. Because might be possible that he was facing tough or hectic working condition or Uncooperative colleagues or supervisory staff etc. After it, you have to arrange council. Either you will terminate him or not but the prior fact is, you would able to draw some conclusion just to retain the others inducted resource. Rectify the Behavioral Trends as he had already done his 1st month at light mode.
Regards,
Usman Ali
I agree with Mr. Dinesh Divekar. He has brought out practical and logical solutions.
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