Can We Terminate an Underperforming Employee Without Prior Warning? Seeking Advice

Hello Senior,

In our company, there is a software developer who has not been performing well since she joined six months ago. The company had given her a written warning about her performance, and there were discussions held regarding this issue. During the review meeting, she was advised to improve her performance, but there has been no noticeable change in her work. Now, the company is considering terminating her employment. However, we have not explicitly informed her that her poor performance could lead to termination.

Can we terminate her without any problems?

Terminating a non-performer is always within the prerogative of the company. If the employee is confirmed to be out of a legal tangle, you need to serve him/her with a minimum of two notices before you terminate him/her, clearly stating that such a third notice will result in termination. If she is still under probation, then there is no issue at all; you can simply dismiss her.

Regards,
Balaji

Hey, you can issue warning letters and counsel her to improve performance. It's not a simple decision to dismiss someone when you do not want to. It's an employee's career, so they should be given a chance to improve their performance.

Most companies typically transfer underperforming employees to other departments if they are not meeting the required standards.

In the case of terminating a non-performer, it is always within the company's prerogative. If the employee is confirmed to be free of any legal issues, you must serve them with a minimum of two notices before termination, clearly stating that a third notice would result in termination. If the employee is still under probation, then there should be no issue with letting them go.

Regards,
Balaji

Counseling and warnings have already been completed as per Swati's instructions. Here, you should consider the company's perspective, not just that of a friend. An employee is expected to be an asset to the company; if not, this is the eventual outcome. I also suggested termination only after proper documented warnings.

Balaji

There are a lot of other forms to tackle a non-performing employee, and the last resort would be termination.

What I'll suggest is that you ask her the reasons why she is not able to perform. Make her understand first that she is very important to your company. Then, I'm sure that there might be a strong reason for her poor performance.

Another thing would be that the kind of job she is in might not be of her interest. So, try asking her what her interests are. I repeat again, make her understand one thing first that she is very important for the organization. It will create a change. I'm sure.

Regards,
Shimit

Dear,

1. Ask her to resign and serve one month notice.
2. You can give her one month's salary in advance against the one month notice served by her, and explain the situation of the company and the release.

Best Regards,
Sajid Ansari
Delhi

Hello, everyone.

Her probation is over. She was having a two-month probation, but her performance was not good during that period. Additionally, in her six-month employment, she had about 2.5 months of leave.

Thank you.

I think there is no problem with terminating her if she is not performing even after warnings or suggestions for improvement. There is no space for non-performers in any industry. Sometimes HR has to be firm. Sometimes negative motivation or warnings work.

Dear Swati,

I assume that your question is "can we terminate her?" Because you feel that you have not informed that poor performance can lead to termination. This is by default that a company should terminate a non-performer - despite continuous warnings and suggestions for improvement. I am sure you must have issued an appointment letter which would have the norms stating that underperformance can lead to termination. There would be no issue in going ahead with termination (else the company is failing!). Try considering redeploying her elsewhere or for any other project. If this is not possible, please call her and inform her that she is being terminated. Make sure her full notice is paid and the F&F is completed with no issues.

Hi,

If you have a branch located in any remote location, issue her a transfer letter with 15 days of preparation time to report for duty. She will have no other option but to resign.

Regards,
Gokul

Hello Swati,

As mentioned by you, even after a warning letter was issued to her, there seems to be little change in her performance. You can terminate her service as per the terms mentioned in the appointment letter. If she is on probation, she may be asked to leave early. If she is a confirmed staff, you may have to refer to the terms of the appointment letter issued to her.

- Mytreya

But we can terminate the person who can't perform in the present assignment without giving him any notice or warning.

Regards, Ritesh Thakur

Dear Swati,

This is an illegal termination. She can challenge your company in the labor court. What kind of written warning was issued to her? Based on the written warning, you can't terminate her unless you have received her consent on the written warning, and she explains it for future growth and work. You should seek advice from legal experts, as many companies are handling cases like this, some of which are still pending after more than 40 years. You should handle this matter maturely.

Issue another two written warnings about her performance and give her a chance for improvement.

Best Regards,

Sajid Ansari
Delhi

Hi!

Terminating is not the solution for the company. How can we allow him/her to improve themselves? If they still do not perform well after this, then termination may be the only option we have to select.

You can terminate her. Before that, you have to issue a warning letter and a showcase notice. After that, you can terminate her.

Regards, M.V. Gopal Reddy

Hi Swati,

If an employee is not performing as per the company standard, her employment can be terminated as follows:

1) Check if you have a copy of the appointment letter where the employee has accepted the terms and conditions of the employment.
2) Check the termination clause specified in the appointment letter.
3) Before issuing her notice as per the termination clause, issue a show-cause notice to her giving her 15 days' time.
4) If the company is not satisfied with the reply submitted by her, issue a notice of termination giving the proper notice period mentioned in the employment letter.
5) Upon completion of the notice period, obtain no-objection certificates from the department heads and relieve her from employment.
6) If she is in a key position, you can release a press note stating that this employee is no longer working with us, and if any person deals with her, the company will have no liability for any kind of loss.
7) Obtain a certificate from her for the full and final settlement.

Regards,
Dalip Bisht

If the confirmation letter is not served to her, then extend her probation period and thereafter terminate her.

Ravi Naidu

I read with interest the comments and the 'devilish' solutions offered by many. No wonder HR is a hated term in organizations. Lack of job competency as well as sensitivity; though we pride ourselves as Human Resource Professionals. Ideally, we should be called In-human Treatment Professionals. The aim of every HR is to 'make life hell for every employee'. Sometimes I wonder if hell is full of HR persons, or the Devil is actually an HR guy in disguise.

Ever thought why Labor Courts favor the "labor"? Because it is an unequal fight. Management can fire thousands of employees and the next day find replacements, whereas a job is a source of livelihood for the whole family of the employee, and it takes considerable time to find another, during which, for the employee's family, many tragedies occur.

Now, coming to your problem, Ms. Swati; (Don't you think it is a greater problem for the employee?) Of course, you can fire the concerned employee after issuing a few notices of non-performance (just to appear FAIR in the eyes of Law).

But if you can take some pain, I suggest you STUDY her PERSONNEL FILE. Find out under what circumstances she was hired. Was she competent enough for the role for which she was hired? (If not, then is it really her fault?) How was her initial performance? Did you TRY to find out the ACTUAL CAUSE of her non-performance (informally or through COUNSELING)? Is it due to a BAD BOSS? Or, Bad colleagues bent on demoralizing their peers for their personal gains? Some family problem? Or, some change in TECHNOLOGY or PROCESS for which she is not equipped? etc. etc.

There are ways to solve some of these problems and to PROPEL the employee on the PATH OF PERFORMANCE. In fact, that is the PURPOSE of a good PERFORMANCE MANAGEMENT SYSTEM (and not to simply classify employees into a few pigeon-holes labeled A*, A B C, D, etc.).

If you can take the pains, please do the above.

If NOT, there are HUMANE WAYS of TERMINATING service. That is, you communicate to the employee in no uncertain terms about Management's agenda (while doing so, be as sensitive and empathetic as a good doctor conveying bad news to the patient or her family) and also offer support for her possible placement in another organization.

Not only will you be doing a good deed for the employee, her family, and society, but you'll also derive JOB SATISFACTION and pride for doing a good professional job.

Regards.

Dear Swati,

You have provided enough opportunities such as oral advice and written warnings to improve her performance. Since she has not completed 480 days, there is no issue in terminating her service. However, before issuing the termination, you should review the clauses in the employment contract or appointment order.

You are advised to adhere to section 25FFA in the ID Act, which entails either one month's notice pay or one month's notice.

Rajasekaran.MK.

Hello,

Shimit's

She is in the MS domain, according to her, in which she always wants to be in. According to her, the reason for leaving that previous company was also due to a transfer from the MS domain to some other domain.

Balaji Kuppuswamy's

We asked her to move from development (as she is not performing in that) to QA, but on that note, she didn't agree.

Ssgokul's

We are not a big company to have employees on the bench. There is no issue with the team member nor with the TL which can be the reason for non-performance. We have a system of TL review every 15 days in which TL reviews their team, and team members review their TL. After every TL review, I had a chat with her as she was a non-performing employee. In the past six months of her employment, it has been her sixth session of discussion that her performance is not up to the mark. Still, we have faced difficulty in terminating her.

Dear All,

What I have noticed in the past few years is that all the employees feel they have the privilege to use the law, as they are protected in many places. This leads them towards non-performance.

What one should do is to remove the candidates from the job but ensure that you retrieve all the documents from them. I had a very bad experience in terminating a candidate who had not performed despite being given an official one-month notice. After leaving, she brought some relatives who work in government offices and tried to take advantage by citing several laws.

Another candidate we terminated had a relative in Delhi who would call us at odd working hours and use abusive language. Additionally, she deleted all the data she had worked on for a four-month period.

Therefore, my request is to take the necessary steps before termination, but do not delay the process, as if someone cannot perform for six months, they are unlikely to perform well in the future.

Dear Bankim,

Please review your selection process. It seems that you are consistently hiring the wrong people.

Regards.

I seek clarification from the experts:

1. Can a developer in a software/IT company be defined as a workman under the ID Act? Will he or she get any legal protection against termination for non-performance?

2. If not under the ID Act, then under which act can a developer claim his/her termination to be illegal?

Experts, please respond.

I get the impression that Ms. Swati was feeling too embarrassed and awkward to terminate an employee. Maybe this was her first experience dealing with such a situation. Instead of serving a Termination Letter in this situation, a Resignation Letter could have been obtained without much problem, and the separation would have been less painful for both parties. Termination should be a last option in case an employee refuses to resign with honor rather than be humiliated by termination.

Thanks & Regards

Hello, I was not embarrassed, but I was taking caution before her termination as when I asked her to resign. So, I didn't want to make any mistake. She told me, "my PA is a lawyer, I will take you to court," when I asked her to resign. She told me, "if I'm not performing, your company bears me for the past 6 months." I guess terminating someone should not be a great feeling for anyone.