Dinesh Divekar
Business Mentor, Consultant And Trainer
Labour Law & Hr Consultant
Partner - Risk Management

Management dont want to take back an employee who was on leave for family planning for 2 months. That Management asking the employee to give resignation of employee beacuse of poor performance at work since her joining. can any body please suggest . is Management doing right or wrong?
From India, Hyderabad
Dear Venkatalakshmi,
Whatever reason of leave it might be, employee is expected to apply for the leave, get it approved and proceed on leave only if the leave is approved. Did employee follow this routine process?
If the employee's absence was unauthorised then what kind of official communication did you send to the employee? Did you give warning to the employee that if she remains absent, then her services could be terminated? If you have sent official communication then it strengthens your case.
Anyway, even now also you may conduct domestic enquiry to investigate the unauthorised absence of employee, if any. If the culpability of the employee is established then your management may take appropriate disciplinary action.
Dinesh Divekar

From India, Bangalore
What exactly is family planning leave ? I was not aware of such a requirement.
From India, Mumbai
Dear Venkatalakshmi,
At the outset, let me share some thoughts on the issue of termination of employment of an employee on performance related reasons. Even in the U.S, the only major industrial power in the world which mostly maintains the doctrine of " Employment-at-Will " as a rule, the higher Judiciary, at times, do not hesitate to struck down an order of a summary dismissal of an employee by his employer simply on the feeble and subjective reason of under performance coupled with adherence to the notice clause of the contract of employment. Really it is very difficult, although not impossible, to predict what constitutes a valid dismissal of an underperforming employee for poor performance is basically a subjective inference in the absence of certain explicit norms or reasons associated with performance appraisal. They can be as follows:
(1) Specification of grounds of dismissal
The collective bargaining agreement or standing orders or service regulations should state that underperformance is an act of misconduct that would warrant the extreme punishment of dismissal.
(2) Fair standards of evaluation
There should be fair and reasonable standards of evaluation appropriate to the nature, type and difficulty of job functions.
(3) Provision for appropriate support and assistance
Generally, the satisfactory accomplishment of many jobs or tasks in terms of quality and time delivery involves team work that may comprise of sequential or simultaneous operations from different people. If the arrangement in place is so loose and ineffective indicative of the lack of support or assistance from the employer in this regard, then the dismissal of an employee on the ground of poor performance would tantamount to scapegoatism and eventually render it illegal.
(4) Avoidance of absolute standards of evaluation
If a prefixed numbers or percentage of employees to be selected as poor performers based on an Absolute Standard Evaluation System ( usually followed in IT and ITES sector as an austerity measure during the phase of slump ), it is unjustifiable.
(5) Absence of multi-faceted evalutaion
In order to eliminate or prevent the factor of subjectivity, the system should facilitate multiple reviewers to evaluate the performance of an employee.
(6) Provision for evaluation results
There should be well-documented clear instructions to improvement based on every evaluation.
(7) Proof of continuous poor performance
General poor performance of an employee on a single occasion that does not result in any catastrophe can not be a sole reason for his dismissal. There should be continuous poor performance.
(8) Opportunities for improvement of performance
There should be adequate provision for performance improvement such as job retraining, relocation to another department, implementation of PIP, continuous monitoring and mentoring and the like.
(9) Consideration of precedent
(10) Provision for Voluntary Separation.
I am given to understand that being mindful of all the above factors and only after realizing the difficulty in expelling the employee on the ground of poor performance, your management insists on his resignation.

From India, Salem
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