Hi All, Requesting your advice on the below matter;

We have onboarded five employees and their probation period was 90 days which ended on 13th October. They were kept under review for the rest of this month and informed them the same (no letter initiated since it was under review). We have almost reached a decision as some of them will be kept under extended probation and others would be terminated from service since there are serious performance and behavior issues.

Their appointment letter had the below clauses -

1. You shall be initially on probation for a period of 90 days, before being considered for absorption as a regular employee. However, the organization reserves the right to extend the probation, if required.
2. During your probation, your services can be terminated without assigning any reason with one month's notice or gross salary in lieu of notice on either side.
3. Unless it is communicated to you that you are confirmed, you will be deemed to be under probation.

Under these circumstances, what would be the actions we need to take or letters to initiate if it's a termination or extension.

Looking forward to your valuable feedbacks.

Thanks & Regards,
Drishya

From India, Tellicherry
Dear Colleague,

The Terms of Appointment is clear and it says 90 days probation and Management has right to extend the probation if required. The termination clause is in case of termination 1 month notice or notice pay in lieu of notice. Unless Communicated the Talent will be on confirmed only upon issue of a " communication" to that effect. The Probation ended on 13th of Oct 2021 and still the review and further communication is pending as on 28th Oct 2021. In this some have Performance issues or Behavioral issues.

The Way forward:

1.Issue an official letter earliest to all talents interim stating that their probation is under review and likely to be extended or their probation will be concluded without confirmation. In this letter very clearly mention ( Letter 1) what the expected performance / behavioral indicators and what was the lapse in their performance very authentic with clear data or incidents. Mention that there will be a review by a panel on a pre- indicated date for each such talents.

2. This pre- communication has to be given for all purposed of transparency. If you had done any performance review and recorded in writing during the first 90 days, then mention that also.

(If no such system so far, then henceforth for all new talents who are in probation please establish such system in which every month there should be a review, documented and communicated in writing to the Talents). What is important is give reasonable opportunity to the Talent to explain his/her side in the review and to address if any genuine reasons are there.

3. Then officially hold a performance review meeting ( Reporting Manager under whom he/she worked and HR) inviting the Talent officially and record the gaps in writing. The provide the crux of the gaps in writing to the Talents.

4. After this process is over for those for whom who are extending probation, put them under PIP- Performance Improvement Plan fixing what is the expected Performance indicators with time line. Then every month conduct performance review officially and document.

5. For those whom there are serious performance/behavioral gaps then after adhering to the above process, by adhering to the 30 days pay or giving 30 days notice the services to be terminated by issuing official letter (Letter 2)

In future establish a sound system of Performance review wherein every month conduct official performance review meeting and document in written form and issue a monthly communication to probationers indicating clearly the performance expectation Vs actual. This letter will be helpful for your all later decisions.

One underlying principle is establish transparent system/ have genuine review / document in writing/ use PIP process/ give all opportunities to the probationers to prove their abilities.

All the Best, God Bless
Dr.P.SIVAKUMAR
Doctor Siva Global HR
Tamil Nadu

From India, Chennai
KK!HR
1204

You may evolve a comprehensive review system as proposed by Dr Shiva Kumar meeting your requirements in future.
For the present as regards those being found unsuitable, you may consider issuing them notice that on a review of the performance during the period of probation, it is decided to terminate (your) services with effect from ../../21. I would suggest terminate with immediate effect and pay for the notice period of one month as otherwise such person will spoil the atmosphere.
For those whose probation period is extended , a communication can be issued informing that on a review of the performance during the period of probation, it is decided to extend your probation period by - months. It shall be noted that your further retention in service would depend on the review to be undertaken at the end of the extended period of probation. You are hereby called upon to serve the organisation with full commitment and dedication, bring all round improvement in your performance. Your key performance parameters for the extended period of probation are being issued separately.

From India, Mumbai
The third clause of appointment letter is ultra virus of clause 1 of the the same letter, which state that "Unless it is communicated to you that you are confirmed, you will be deemed to be under probation. " that means if probationer has been working with your company even after 90 days (initial probation period), his status does not change and his probation remains continue. And company needs to continue their appraisal by the time 1. either they are confirmed, or, 2. they are terminated with one notice payment as per clause 2 of the appointment letter, on finding them unsuitable as per their appraisal.

whatsoever, company decides, in all the cases, they must communicate all probationers about their positions after appraisal.

From India, Delhi
The third clause of appointment letter is ultra virus of clause 1 of the the same letter, which state that "Unless it is communicated to you that you are confirmed, you will be deemed to be under probation. " that means if probationer has been working with your company even after 90 days (initial probation period), his status does not change and his probation remains continue. And company needs to continue their appraisal by the time 1. either they are confirmed, or, 2. they are terminated with one notice payment as per clause 2 of the appointment letter, on finding them unsuitable as per their appraisal.

whatsoever, company decides, in all the cases, they must communicate all probationers about their positions after appraisal.

Dr. M. K. Ravi
Advocate

From India, Delhi
Thank you all for your feedbacks. It helped a lot! Also, we have decided to terminate two of the employees, in such a case is there a need to issue relieving and experience letter? Please suggest.
From India, Tellicherry
If anyone could share a sample relieving cum experience letter in case of termination, that would be also helpful. Thanks & Regards, Drishya
From India, Tellicherry
KK!HR
1204

You can issue a simple certificate stating that "Shri XXX has served this organisation on the post of VVVVVV from cc/cc/cccc to bb/bb/bbbb. We wish him all success in his future endeavours".
From India, Mumbai
Dear colleagues,

I want to raise some some questions for discussion by the learned colleagues on the termination of probationers .

The legal aspect of termination of probationer is well explained by some colleagues. As long as the communication regarding the decision of termination is as per the terms of the contract, it may be adequate compliance of the terms and the action may meet legalities.

The broader aspects of this action of termination cause ripples and point towards possible inadequacies in the HR systems and procedure is what I would like to draw attention to, although, I am aware , it is outside the scope of the query.

I think the HR needs to ask following questions in introspection in order to check if there are robust systems in place and whether they deliver the desired outcomes.

1. Why there was mismatch between the competencies of the candidate and the performance requirements? ( Examine the candidate assessment process)

1 Was onboarding/ induction done effectively to acclamatize the talent with the performance parameters, culture , with clarity .

3 Did the performance review system during probation enable timely feedback on his performance and point any inadequacies in him and create urge to use given opportunity in the transperant manner to show improvements ?

I am pointing out at the fact that just as the talent may fail to come up to the expectations of the performance standards, so is the organisations too due to the system inadequacies.

The above areas and other related aspects, will point to the need for system improvements when put to strict review. In my view, if the system is so robust, the organisation will have no opportunity to take action of termination of probationer. In fact , the sound HR systems should preempt the need for such unpleasant action.

Despite, with the strong presence of such an enabling HR system, if the talent fails, which is very few and far between, the action of termination of probationer, however unfortunate, will be justified legally and ethically.

Regards,

Vinayak Nagarkar
HR and Employee Relations Consultant

From India, Mumbai
KK!HR
1204

Vinayak Sir has given valuable points to ponder, indeed it is surprising to note in this case that of the five probationers, two are terminated and for rest the probation is extended. It is putting questions on the recruitment standards and induction process besides the performance review system. Not a very satisfactory position.
From India, Mumbai

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