Termination of Service under Extended Probation Period - CiteHR
Umakanthan53
Labour Law & Hr Consultant
Madhu.T.K
Industrial Relations And Labour Laws
Nathrao
Insolvency N Gst Professional
VIPUL
Service
+1 Other

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Dear Colleagues,
Can any one Share Views, and guide how to draft a letter of Termination of an Employee who had been provided opportunity after 6 months of probation, during this period his superior assess his performance and feedback was given to him, and management jointly took decision to extend his probation period for 3 months, but after 1.5 month, he is creating nuisance in the department, instead of focusing on improvement of his performance.
Now, we have decided to terminate his service on non performance background, however his extended 90 days probation days are yet to be completed.
Can anyone guide how to do away with this guy ?
regards,
Vipul

1) What are the terms of appointment letter ?
2) Employer is entitled to terminate employee during probation period if work of employee is not to the satisfaction of the employer
Have you given him written intimation regarding extension of probation?
If your documentation is up to date on performance counselling during the period you can go ahead and terminate him with notice as specified in offer letter.

Normally the appointment order shall contain a clause that ' during probation your services can be terminated "without assigning any reason and without giving notice" and if this is the wording used by you, you can simply give him a letter stating that " following clause.... of the contract of employment your service stand terminated with effect from...." and there is no need to write that your performance has been poor or your conduct is bad, nothing is required. Now, if you write like this, then the termination will lead to cause stigma and the employee will challenge it. In case your appointment order has nothing like termination 'without assigning any reason during probation', then you will have to give him an opportunity to be heard, by giving him a show cause notice and calling him to defend the charges etc. It is perfectly right that the employee will not have any lien on employment during probation period and it is not necessary that the employer should wait till the probation is over or the extended period of probation is over but can initiate termination before that. But what is important is that if you show the reason for termination, like poor performance, then the termination will become stigmatic and in such scenario the action should be taken only after giving the employee sufficient opportunities to be heard. Still, the process involved is simple, since you have carried out a course of performance appraisal, you can just ask him to face another course of appraisal and based on the same you may terminate him at the earliest.
Was extension letter mentioning poor performance issued to employee & he signed in acceptance? If answer is yes to both, then the employee's services can be separated.
Please be aware that such case is 'discharge solicitor' and not termination. Mentioning word termination means attaching stigma on the employee. These are views of various courts of law, including supreme court.
After mentioning about shortfall in expectations in the relieving letter it is better to mention 'You will cease to be our employee after working hours of (date).'

A simple question raised in a practical perspective has , in fact, eventually assumed piquance and greater in-depth analysis by the responses from our learned members of the forum.
" PROBATION ", in the realm of employment is the pre-fixed period of service in the contract of employment during which the employee is given the opportunity to understand his role play and orient himself with the work culture of the organization. In other words, the very purpose of placing a newly appointed employee on probation is to try him during the probationary period to assess his suitability for the job only. Thus, the period of probation gives a sort of locus poneitentiae to the employer - i.e., the right to withdraw from the projected contract of employment before being finally bound - to observe the work, ability, efficiency, sincerity and competence of the probationer and if he is not found suitable for the post, the employer reserves his right to dispense with his services without anything more during or at the end of the prescribed period. This is the gist of the judgment of the Supreme Court in Ajeet Singh vs. State of Punjab [ 1983 (46) FLR 487 ].
Having found so, certain questions naturally arise as follows:
1) Whether a probationer can be discharged during the period of probation?
2)Whether a notice of discharge to the probationer on the ground of unsatisfactory performance is necessary?
3 )Whether an enquiry is necessary to discharge a probationer?
Regarding the first question the only answer is an emphatic " NO " based on the well settled law. Probation must see its duration and the employer has to wait till the end of it and can not do so in its midway though he is not satisfied with the performance of the probationer and the right to terminate on the ground of unsatisfactory performance,if any arises only on the expiry of the period of probation.. This is the ratio decidendi of the judgment of the Supreme Court in Express Newspapers Ltd., vs. Labor Court, Madras [ 1964 (1) LLJ 9 ]. However, this is not applicable to a case of premature curtailment of the period of probation on a/c of misconduct by the probationer where he is given an opportunity of explaining the charge against him. Coming to the case of termination during the period of extended probation, above restriction will not apply as the order of extension itself is an indication that the probationer's performance was not satisfactory during his initial tenure and he was expected to improve it during the extended period. Here, the employer need not wait till its expiry and can terminate the probationer's service pending the extended period as per the contract of employment so opined by Mr.Madhu.
As regards the second question, termination of the services of a probationer without any notice or assigning any reasons therefor as per the contract of employment is only a discharge simpliciter and certainly not a punitive simpliciter. In the case of Governing Council of Kidwai Memorial Institute of Oncology vs. Dr.Pandurang Godwalkar and Another [1993 (1) LLJ 308 ] the Supreme Court held that even under the general law, the services of the probationer can be terminated after making overall assessment of his performance during the period of probation and no notice is required to be given before termination of such service.
Coming to the third question, discharging a probationer for unsatisfactory performance by an order of simpliciter does not amount to punishment. A probationer's work report or performance appraisal is given by the person under whom the probationer is working. No enquiry is contemplated in respect of any observation made in the work report unless it is alleged to be with any malice. If the employer is not satisfied with the work of the probationer, his services can be terminated without any further enquiry or providing further opportunity to him.

Was extension letter mentioning poor performance issued to employee & he signed in acceptance? If answer is yes to both, then the employee's services can be separated.
Please be aware that such case is 'discharge solicitor' and not termination. Mentioning word termination means attaching stigma on the employee. These are views of various courts of law, including supreme court.
After mentioning about shortfall in expectations in the relieving letter it is better to mention 'You will cease to be our employee after working hours of (date).'

I feel the PROBATION period is for providing time
• To provide the employee with a clear job description.
• To provide clear performance standards and what is expected of.
• To acquaint the employee with office procedures and practices.
• To allow the employee to know the organisational procedures (orientation).
• To provide departmental objectives and usefulness to the new employee.
• To assist the employee learn the departmental evaluation system.
• To allow the employee to set and adjust to their new working environment..
• To make the employee feel what it means to have a regular employee status.
• To have an idea of Employee's performance and assist for improvement.
• To make the employee feel the care taken for development to departmental needs.
If the employee is not ready as expected even after extended period of probation, a proposal for amicable seperation would be the best alternative.

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