Umakanthan53
Labour Law & Hr Consultant
Rkn61
Hr Manager

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Dear Experts, We are construction based company at Bangalore due to covid 19 we running low with business and no further project to employees deputed.
I would like ask if we found any employee non performer/excess can we use termination clause against him.
What is impact of according to law and suggest best practice.

From India, undefined
Dear Chaithanya,

Performance issue is one among the various modes of termination of employment and in such cases, mostly the method of discharge simpliciter is adopted by the employers which has the two-fold advantage of non-stigmatic exit of the employee which will not affect his future employment prospects elsewhere and the ease of elimination of an underperformer to the employer by simply adopting the exit clause of the contract of employment. But the inherent danger of this simple method of termination is that it is as much judicially questionable as that of a dismissal of an employee pertaining to any behavioral issue. Therefore, it requires the grant of reasonable opportunities to the underperformer like putting him on a PIP and well documentation of the entire performance of the employee, the chances offered to him for improvement, objective appraisals and the absence of possible alternatives.

Redundancy is one of the reasons for retrenchment which has to be strictly based on juniority in service i.e last come-first go apart from the strict compliance with the provisons of section 25-F of the IDA,1947. In this method of termination, there is no scope for the application of pick and choose. Otherwise the retrenchment would be illegal and treated as void ab initio.

In the context of the COVID-19 Lock Down promulgated under the blanket powers vested with the GOI as per the Disaster Management Act,2005, companies/employers are obliged not to terminate employees including contract employees during the lock down period. It is a punishable offence with imprisonment upto 6 months or two years with fine under sections 188 of IPC or 51(b) of the DMA,2005 respectively as the case be.

In my opinion, the best practice befitting the situation, therefore, is to postpone the decision of termination of any underperformer or redundant employees as of now.

From India, Salem
Dear Sir, thanks for the valuable suggestion. Krishna Chaitanya
From India, undefined
Dear Friend,
You can terminate on ground of exhaust of work in company by paying the notice pay but not on ground of Non-performance.
The Supreme Court said that administrations across India should not prosecute employers who are unable to pay the wages during the lock down, yesterday.

From India, Mumbai
Dear friend,
While I am fully agreeing with Umakanthan sir's post on the subject, would suggest
you to please go through the following link:
https://www.citehr.com/618965-act-em...ml#post2443377

From India, Aizawl
To further clarify - to the captioned matter, now, in a significant move, the Supreme Court
yesterday (on Friday )passed an interim order stating that no coercive action should be taken against employers for not complying with the directions of the Ministry of Home Affairs (MHA) for full payment of wages to employees during the lock down period.
The interim order will be in operation till the Central Government files a reply to the petitions challenging the direction passed by the MHA on March 29.

From India, Aizawl
I am also attaching herewith the portion of Order passed by Supreme Court yesterday, with regard to above post. Thanks
From India, Aizawl

Attached Files
File Type: pdf SC order.pdf (24.4 KB, 65 views)

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