Is It Fair to Extend Probation Without Notice? Seeking Advice on a Friend's Termination Case

Dear All,

One of my friends had been working for a company in a managerial profile for the past two years. They have suddenly terminated him without assigning any reason, stating that he is still a probationary employee. The offer letter stated that he would be on a probation period of six months and he would be confirmed in writing. However, my friend says that he has not received any extension of the probationary period letter after the six months, nor has it been stated in the offer letter that after the probationary period of six months, it may automatically be extended to three or six months, etc. He has managed to get a copy of the Process Circular of the company, which clearly states that the probationary employee has to receive an extension of the probationary letter after six months if not confirmed, and it has to be duly signed by the employee. It is also stated in the circular that a maximum of two extensions of three months each is allowed.

Will he get justice in this case because it is a clear case of negligence and harassment by the company officials, where they have not followed the process set by them? Can the company be let off on the ground that it is not necessary for them to abide by the procedures set by them?

My point is, how can there be an implied indefinite period of extension of a probation period? This amounts to the fact that even if an employee works for ten years in the organization, he will still be considered a probationary employee because the company has not issued a letter in writing!

I invite all the members to please give their valuable inputs on this case and the possibility of justice being given to the aggrieved party.

Regards,
Rajeev

Dear Rajeev, From my point of view, his dismissal is illegal. He can approach the labor court and challenge the dismissal. A probationer, when completing 1 year or more, has to be confirmed or removed from the job. If an employee does not receive any written communication, he is deemed as confirmed in his/her employment.

The above views are my personal. However, Mr. Madhu TK, Mr. Malik JS, or Mr. Vasant Nair can answer your query correctly.

Thanks,

DVD

Analysis of Managerial Profile and Employment Status

I beg to differ with Mr. Divekar, and my reasons are as follows:

The person concerned is reported to be in a managerial profile. If he is indeed not a "workman" under the Industrial Disputes Act 1947, then he has no possibility of litigating over the issue.

Further, even if he is a "workman" under the Industrial Disputes Act, only the Industrial Employment (Standing Orders) Act 1946 can help him benefit from Clause 4-C of the act, which states that "if a workman completes more than 240 days within a span of the preceding 12 months, he will have to be confirmed by the organization."

However, whether he is a workman under the said act or not is decided by the job responsibilities attached to his role. Neither the title (designation) nor the pay alone is adequate to determine the status of his employment.

Under these conditions, if he wishes to contest his position, he may approach the conciliation machinery under the Industrial Disputes Act, claiming himself to be a "workman." Fortunately, the Conciliation Officer under the act has no authority to decide the dispute; he can only facilitate conciliation between the disputants to resolve the matter. If this fails, based on his "failure report," the state government is responsible for either "referring" or "not referring" the dispute to an appropriate court constituted under the Industrial Disputes Act. If the government refuses to "refer," the individual in question may have to approach the concerned High Court to address the grievance, with no guarantee of achieving the desired outcome. If, however, the government does refer the dispute, the court will have to decide, as a "preliminary issue," the status of this individual, as the management will likely assert this, and the court may not be able to deny this request. Subsequent actions will depend on the court's verdict on this issue.

In summary, this matter will consume significant time and money, and in my opinion, if the gentleman's profile is indeed "managerial," the chances of winning an argument are virtually nil.

Decide how you wish to proceed.

Cheers and Regards,

Samvedan

August 28, 2010

Dear All,

Thank you very much for providing valuable inputs on the case! The person was engaged in a Financial Services Company. Will it qualify under the Industrial Disputes Act 1947? If yes, what are the parameters to qualify as a workman?

I would like to invite Mr. Madhu TK, Mr. Malik JS, & Mr. Vasant Nair to give their views on the possible rights of the employee and the legal recourse to follow to get justice.

Regards,
Rajeev