Hi, Can anyone please tell me if we can terminate any employee for non performance without paying the salary? In termination of non performance, what is the right thing to do?
From India, Bengaluru
Dear Punnya Sumith,
In the case of under-performance or non-performance of an employee, the employer needs to conduct a domestic enquiry. You need to establish clearly the causes of under-performance or non-performance. After enquiry, you may award suitable punishment to an employee which could be even termination of his/her services.
If you terminate the services of an employee, it would be the punishment of the highest kind. Therefore, you cannot forfeit the wages of an employee. You cannot award double punishment for single misconduct. It would be against principles of natural justice.
Dinesh Divekar

From India, Bangalore
Your HR manual should define non-performance under the termination section, clearly prescribing what would constitute non-performance. It is quite vital to prescribe the process the company would follow to deal with non-performance, say,
- verbal warnings
- written notice clearly defining the performance improvement plan
- temporary suspension in consonance with prima-facie evidences to prove lack of improvement
- termination notice
You can not simply terminate anyone without having an audit trail. When I say 'audit trail', I mean substantial evidences to prove that the termination was lawful and in compliance with the company policies.
If the employee has actually worked for a certain period, you can not withhold his salary.
Best wishes!

From India, New Delhi
Dear Punnya,
You can terminate the employee on The ground of Non/poor performances by complying the Principle of Natural Justics. The concern employee must get the opportunity to improve the performances and to defend her/himself. Illegal termination is subjected to disputed u/s 2A of ID act. 1947 if the same is challenged by concern employee,
However you cannot hold the salary of terminated employee if employee is covered under payment of wages act. 1936 as per sec 5(2) of the said act. Salary should be paid to within 2 days if the employee service is terminated. As per sec 5(4) the salary is to be paid only in working days to terminated employee.
non complying the Principle of Natural justics and Holding salary of terminated employee is unfair labour practics. Section 25T of ID act. 1947 prohibited the unfair labour practics. In course of indulging in unfair labour practics employer can be penalise u/s 25U of ID act. 1947
Thanks & Regards
HR & Labour, Corporate Laws Advisor

From India, Agra

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