Probation Dilemma: Can You Legally Let Go of an Underperforming Employee Early?

Hi everyone,

If an employee on probation for 3 months has not achieved satisfactory results within one and a half months, even after receiving a warning, can they be asked to leave the organization with immediate effect before the probation period ends? Is this legal or not? Kindly share your views.

Thank you.

Hi,

Yes, you can terminate his services with immediate effect. At the time of joining, an appointment letter has to be issued in which under the header of Probation, it should be mentioned that your probation period is for 3 months. If your performance is found to be unsatisfactory, then the management has the right to terminate your services with immediate effect without giving you any notice.

Thank you.

If the employee is not productive to you, what's the use of continuing with him/her?

In my view, first, try to check out the reasons for non-performance and then decide.

Prashant

Hi,

Generally, in the appointment letter, the clause regarding termination or resignation during the probation period is mentioned. If there is any notice period (generally 15 days in probation) mentioned, the same should be followed.

Regards, Harshad

Dear Vani,

It depends on the Termination and Notice period clause of the appointment. Usually, termination can't happen within the 45 days from the date of joining; the employee must be given a fair opportunity to prove himself.

Regards,
Shiv

Dear,

In my view, if an employee is not performing well, it is advisable to give them a notice stating that their performance is not up to the mark. They should be advised to improve. After one or two notices, termination may be considered.

Regards,
J.S. Malik

Hello, I am a final year MBA student, and I completely agree with Malikjs that you should give feedback about his performance and ask him to improve on it. If you terminate him, then it's possible that the employee may walk out with a bad experience and spoil your company's image. There are people who require time to settle and work in the organization. You need to go and search for the reason for his poor performance.

Dear Vanisreenath,

Try to understand, how can you judge an employee within half and one month? You should try to convey to him about your company requirements and system, and specifically mention termination if performance is not satisfactory. I am sure that with one or two warnings, he/she would work well. Let the probation period be three months, then you can decide whether to continue his/her employment. You should also monitor other parameters, such as the behavior of his/her juniors.

Remember, you are an HR person and you should remain composed and provide support to every new employee.

Best Regards,

Sajid Ansari
Delhi

I agree with Saajid Ansari. When that person was recruited, you must have seen some capabilities in him. Before calling him a bad performer, it would be wise to sit with him and have a discussion about the gaps between expected and actual performance, understand his thought process, help and rectify him where required. Also, let him clearly understand that he'll only be confirmed depending upon his performance during the probation. Monitor his behavior on the job and performance closely. If it persists without any sufficient cause, issue him one or two Caution letters, which I believe will rectify him. Termination during probation (as per the clause of the Appointment letter) is the last option.

I don't think termination is the best option. As an HR professional, it is your responsibility to look into the matter and study it carefully. This is our job, and this is what we are best at.

You should have seen some positive traits in this candidate and then recruited him in the first place. Try to sit with him and understand his position.

We are not here to terminate. We are here to get the best out of our employees by the best possible means.

Thanks,
Srikanth

You need to find out the reasons for non-performance. If you and the respective manager feel that the reasons are justified, you may give another chance and let the person complete the probation along with some training support. Sometimes, you can also extend the period of probation. If, however, the reasons are not satisfactory, you can terminate the services of the person. Good luck!

Groom him like a child, and you cannot expect him to raise from chin-up position to stand-up position. As per the appointment order "notice period" clause, you may take action. But have we provided sufficient opportunities to learn, resources, a supporting system, and a performance review mechanism?

Dear Vani,

A person whose performance has not been found satisfactory during the probation period can be removed from the service before completing the probation period. However, before taking such action, natural justice should be upheld. This means that the individual should be given one or two opportunities to improve by issuing written advice letters.

Generally, in an appointment letter, it is mentioned regarding the notice period. We must follow the rules of the company when terminating employees. Before terminating any employee, it may be advisable to give them at least one chance to improve by saying, "Your performance is not up to the mark. Please try to improve; otherwise, you may be terminated from your duties effective from the date specified."

Three months probation is very short to evaluate the person's performance or capabilities. Most organizations don't provide a permanent job within three months for new recruits. We must consider the settling-in period, understanding the requirements, and familiarizing with the organization's systems, etc. In my view, the probation period should be a minimum of 6 months.

Hi, my suggestion is not based on experience; it's completely based on my knowledge. You have all the rights to terminate the employee, but give him a chance to improve. Warn him/her at least twice, then make a decision.

Dear Yani,

Yes! You can terminate his service. But before termination, you can warn him. If he asks for more time to prove himself, you can extend his confirmation due date.

Regards,
Narender

You may terminate, and that is legal because probation is a trial period during which your character and abilities are tested to see whether you are suitable for work or for membership. If the employee is not performing well, you may terminate.

Regards,
Pankaj Chandan

Probationary period is mentioned in the Offer of Appointment Letter by the employer. It may be from one month to four years. This trend could be seen in Government, Public Sector, and Private Sector employment rules, which may differ from company to company. The Supreme Court of India has held that the words, figures, and sentences used in the probationary period are to be meticulously followed. In case the period is to be considered for extension, it should be done before the completion of the last date of the probationary period. Except for this, the language used for the probationary period will be the guiding factor for termination. Generally speaking, services shall be liable for termination without any notice at any time during the probation. Read your offer of appointment clause carefully for conclusions in the matter according to law.

Chandrabhan Gupta

Employers can give him one more chance to work and perform to their expectations, provided that the company is in dearth of employees and thinks much about the expenditure the company has caused on his training and other KT programs.

In another case, he will be fired..!

You are covered by the law to fire; nevertheless, check the employment letter to see if you included the clause on termination of appointment. Either way, if you want to fire within two months of employment, I suggest that you analyze all issues surrounding the employee - recruitment, placement, job location. Have all these been taken care of? What about investigating the reasons behind the employee's poor performance? Roll up your sleeves and take action. It costs more to recruit than to fire. Explore all possible means to help the employee get back on track before considering termination; warnings alone may not be sufficient.

Hi team members,

I agree with Sajid Ansari's point of giving the person at least 3 months to complete the probation period, which I think is ideal. However, there are instances where a person can profess and convince the interviewers that he/she is the best and a master of all situations, but when it comes to actual work, they seem to be lacking.

Upon warnings and advice, if the person is still falling short of the mark, I think the person should be allowed to continue to stay, but rather his or her appointment should be terminated.

Hi Vaani,

In my view, an employee should be given some time to understand the work situation. You should observe him at work. If he is not performing well, judge him and get the reasons. Instead, you can give him a small warning and give him time to cope with the situation and understand his job responsibilities seriously. Apart from that, observe his behavior with other colleagues as well as seniors. After that, you can judge him and proceed with your decision if he is still unsatisfactory.

Regards, Deepak Naik, 9769498160

Dear Mr. Vani Sreenath,

Issue a warning letter to him, mentioning that his performance is not satisfactory. If there is no improvement within one month, his service may be terminated. I believe after this, he will perform according to the company's requirements.

Terminating a probationer is not a legal issue. A probationer can be terminated at any point during the probation period or extended probation period without notice if it is stated in the appointment letter.

Successful completion of the probation period always depends on satisfactory performance. Therefore, if you believe he cannot improve his performance even after the warning, you can terminate his services without notice, stating the reason as unsatisfactory performance.

Thank you,
Mohd. Arif Khan

We can terminate an employee after the completion of a 3-month probation period under the provision of non-renewal of the contract of appointment. If there is a clause regarding the notice period in the appointment letter before completion, it has to be complied with.

Sharma NK

Hi Vani,

I feel that the probation period, i.e., 3 months, is very short. For better results, it should be extended to 6 months. You should establish a monthly review process where the immediate supervisor, HOD, and HR are the evaluators. On a month-to-month basis, you should discuss, document, and obtain signatures from all involved parties. Brief the employee about their performance, give them time and opportunities, record their comments, and obtain their signature for acceptance. By the end of 5 months, everyone, including the employee, should be able to understand the performance levels. If the employee's performance does not improve, issue a termination notice and close the process. If there is some improvement compared to the last 3 months, extend the probation period for a maximum of 3 months and continue the evaluation process. After 8 months, evaluate and make a decision.

The termination or extension letter should be sent to the employee one week before the probation or extended probation period ends.

This process will be very transparent, not based on favoritism toward superiors or HODs. There will be no process failures as you are obtaining the employee's signature. If the employee is not performing after 3 months, identify the issue and, if necessary, shift them to another area for observation.

Why all these steps? Because you, the immediate superior, HOD, and HR, are part of the recruitment process and believed the candidate was good enough to be hired. If, after 3 months, it is evident that the employee is not performing, there may have been a flaw in the recruitment process or a lack of opportunity for the employee to understand and excel. Hence, a 6-month probation period would be more beneficial.

Regards,
Kameswarao

Dear vanishreenat,

"Res ipsa loquitur"... the probation letter speaks for itself.

Best regards,
Dr. Dionicio D. Viloria, SPHR

Hi, according to me, in this competitive world, one gets a chance that should be properly utilized. Today's scenario says no one is waiting for you to come and join. "It is you who want." There may be a second chance but not a third. So one should utilize it as early as it comes. As a part of HR, the person should find out actually why the candidate is not performing well by giving him a chance to share the grievances or whatever may be his problems as to why he is not able to give his 100%.

Thanks,

Ratika

Yes, Dada, you are right!! :-D

Dear Vani, in the private sector, you can get away with anything - even murder.

Go ahead - make your day!! :-P

Regards. :icon1:

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Legal Disclaimer: No responsibility whatsoever... (email me for the full text)

Hi Vanisrinath,

You can terminate the employment of the individual since he is under a performance improvement period. Please refer to the termination clause in the letter of appointment. If there are no specific clauses mentioned, you do not need to worry about the termination. Such a termination would not be legally valid. Additionally, his employment with you is of a very short duration, and he cannot claim any rights.

Before proceeding with the termination, it is important to document instances of his misbehavior or performance issues to support your decision. Any issues leading to termination should be addressed with a formal memo that clearly outlines the misconduct.

Warm wishes,
T. Kumar

The question posted by vanisreenath is explicit in my view and asks for a legal opinion on the issue. The employee is on a three-month probation. His performance is not satisfactory even despite caution given to him during the one and a half month probation period. Yes, he can be terminated with immediate effect. It is legal in absolute terms. However, he has to be paid salary for the number of days he has worked.

Dear Vani,

I agree with Sajid. You have to give one more chance to him as well as you have to evaluate him based on personality traits. You should know what exactly is mentioned in the appointment letter.

Regards,
Kavita

Dear Friend,

Consider if you are in the same situation. The person has not performed his responsibilities but has not engaged in any illegal activities.

The probation period is 6 (six) months. In case performance is not satisfactory, you can extend his probation period as per your appointment terms and conditions.

Regards, Raveesh

Hi all,

I agree with Mr. Malik that there is a need to issue a notice before termination. However, have you provided any initial job training? The reason for this query is that you mentioned the candidate has been with you for one and a half months. How can you evaluate a candidate's performance within 45 days? Nonetheless, you can terminate his services immediately after issuing the notice within the probation period.

D. N. Pavan HR - Executive

Hi,

First things first, has he been given the right environment to perform? Has he been conveyed the right KRAs and his expectations? If the same has been done, and he was forewarned but still sees no signs of improvement, then it might be best to offer a golden handshake to this employee.

Regards, Fabian D'Mello

Hi Friend,

In my view, we can terminate an employee during the probation period. However, before taking such action, we should identify the actual problem causing the performance issues. It could be that the employee is unclear about their job description and responsibilities due to a lack of proper induction. I have seen a similar issue faced by one of my good friends. If the employee is unwilling to improve their performance, then it may be best not to waste time.

Regards,
Simran

Hi all,

If you have stipulated in the initial contract of employment that either party can terminate the contract during the probation period, legally, you will be right to terminate him/her as long as you have taken corrective measures to inform the employee, either through counseling or formal warning. You have taken corrective measures such as coaching. But also give him/her enough time to reveal his/her knowledge. To me as an HR person, this period is too short to judge someone, and make sure you have evaluated the employee based on the agreed goals and make sure those goals are realistic and achievable.

We, proactive HR, are here to help employees deliver by giving them all necessary assistance.

With best regards, Elisante Yona.

Hi,

Is it fair enough to terminate the employee who has been recruited just one and a half months ago, stating that his performance is not satisfactory? Kindly find out what job description was handed over to him during the joining and carefully evaluate each job to understand the gap. I understand that a rating of 10/10 may require immediate corrective action, but a rating of 5/10 only requires training and subsequent counseling if some attitude issues have evolved. We are recruiting human resources after a couple of careful assessments, not just simply taking resources on a daily basis.

So, what I would request of you is to explain to him the expectations and the necessity of fulfilling them, and apprise him about the consequences if he does not meet those expectations. Give him a due course of time to comply with the requirements. Respect his feelings!!! Great men show their greatness by the way they treat little ones!!!

There has been a lot of opinion on the "probation period" and "termination during the probationary period." Those who are in HR know very well that the probationary period is as stipulated in the offer of appointment. The termination of an employee in absolute terms of the probationary period as specified in the offer of appointment will be a legal action, and no issue will be sustainable in courts from the employee's angle.

However, "any action" on the grounds of misconduct, which includes poor performance, dereliction of duty, or any other issue falling under disobedience in administrative law, will be unjustified against an employee without a show cause, opportunity for explanation, and an enquiry by the competent authority. His final order will amount to "not giving natural justice to the employee." I have had the opportunity to be a member and presiding officer in many courts of enquiries, domestic enquiries, and other such decision-making forums during my 36-year executive management career.

In my view, an HR Manager has to be very clear in his mind before taking a hard decision like "Termination." Is it in compliance with the terms of the offer of the appointment letter or based on poor performance, which is akin to dereliction of duty and would require due process of natural justice? In this process, emotions should not influence the decision-making, but rather a case of ZERO TOLERANCE, which should be a guiding factor from top management. Therefore, decisions should be made based on these two factors.

It should also be noted that court intervention may occur if the decision has not been correct and legal in absolute terms in this regard.

Chandrabhan Gupta

CEO-EUROPE CERTIFIED

Dear All,

There is a situation in a company that they hired some fresher and trained them on XML tagging. Since the cost is involved in training at the time of hire employer had ask the employee sign 1yr bond most of the employee agreed and signed. Now there is one particular employee instead of sign 1yr bond he agreed willfully to submit his original marks card till the completion of 6 months. After 2month there was a new HR. she formulated many policies and also got above statement drafted in letter head and got it signed by that particular employee in order to document it. Employee in his 4 month of tenure onwards asking for marks card to join some regular course. Mean while he had already received 1 written warning letter followed by many verbal warning for poor performance, late coming, and habituated unauthorized leaves. Many times Hr had counciled and mentored him but his behavior not changed that was also affecting other employee's behavior. Asked written explanation for every unauthorized leave (not even a call) and documented which were not for sick reason. Now management had decided to terminate him as he is nothing but liability more over he is also not intersted. He still has 28 due to complete his 6 month so, last month salary has been adjusted with this and after deducting sick leaves of 6 days, he has asked to pay 24 days Gross salary and take his marks card.

My doubt is asking him to pay and collect is marks card is it valid and legal in the eyes of law.