Can an Employer Terminate an Employee on Their Last Day During Probation? Let's Discuss!

Termination on Last Working Day During Probation

Can an employer terminate an employee on his last working day, i.e., after giving a proper handover of data and assets? NOTE: The employee is in the probation period.

Suppose an employee tendered his resignation on 1st Jan. The resignation was accepted by management, and the relieving date was decided as 16th Jan. The employee had handed over the data to the concerned person as instructed by the company. Then, he asked for leave due to domestic issues, which was not sanctioned. Despite this, the employee went on leave. The HR department sent him a letter instructing him to report to the office immediately. In response, the employee requested leave on LOP. He was absent for 5 days due to train communication issues that lasted for 3 days. He reported to the office on 15th Jan, handed over all the assets, and received an acknowledgment. Instead of replying to the leave approval mail in LOP, the HR department sent another letter to the employee requesting the reason and justification behind the unauthorized absence.

The employee provided the reason and justification. Then his...

Clarification on Termination and Leave Without Permission

No, there is no need to terminate any employee as he/she is already leaving the company/organization, especially when the handover procedure is already completed.

Second, if you are talking about yourself being on leave without permission (as stated by you above), it will certainly be treated as absent. You can't ask them to allow you to leave while you are already on "leave without permission."

The letter you have received from HR to join them back immediately and the justification they have asked you about your leave are general actions that fall under the work procedures of HR. This is because you never got permission from your seniors/boss/HR Manager for your leave. No matter how much time/days you took to reach your office, all will be calculated, and you will be marked as ABSENT from the job, and they did the same.

But what I don't understand is why you are talking about TERMINATION, as I found nothing related to TERMINATION even after going through your complete query/question.

The last sentence in your post is incomplete and probably holds the key to the issue. Even assuming that the employee (whether it is you or someone else) has committed misconduct of unauthorized absence, the company cannot terminate on the last day of his service without conducting a domestic enquiry and creating evidence of the punitive nature of its action.

Regards,
B. Saikumar
Mumbai.

Hi Abhimanyu,

Let me write the case now in short.

The employee was in the probation period (served 3 months). After submitting the resignation, it was mutually decided on the relieving date. After handing over data as instructed by the company, the employee applied for leave, but it was declined by their superior. As a result, the employee was treated as absent/unauthorized leave for 4.5 days (including one Sunday). The HR department issued a letter to him, to which the employee replied by requesting leave in LOP. When no response was received, the employee reported back and, as per company instructions, handed over the assets and received an acknowledgment. As the employee's reporting boss sits at the corporate office, he requested to courier the exit interview form duly filled. After leaving the office, the HR department sent an email with a letter asking for the reason and explanation for the unauthorized absence, to which the employee replied. Subsequently, the official email ID was blocked.

Queries:

1. Can an employer terminate an employee on his last working day? Suppose the relieving date/last working day is 6th June, is it possible to issue a termination letter on 7th June stating the effective date for termination of the contract as 6th June?

2. If a termination letter is issued to an employee, what legal action can be taken by the employee?

3. If a termination letter is issued, what is the maximum period for an employer to release an employee's F & F?

Regards,
Abhimanyu

Mr. Abhimanyu,

1) He cannot be terminated for the reasons already explained by me in my previous post.

2) If he was on duty on 6th June, he cannot be terminated with a back date. It is anomalous.

3) If he is a workman, he can pursue a remedy under the Industrial Disputes Act.

4) It depends upon factors like whether your establishment is covered and whether the employee is covered by the Payment of Wages Act or not, etc. However, P.F and Gratuity etc. need to be settled within 30 to 45 days.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai

Thank you, Mr. Sasikumar, for the early response. Though the employee had handed over the data and assets to the company, the employer issued him a termination letter.

The employee's last working day was 31st May (mutually agreed upon, mail communication is available). However, the employer issued a termination letter on 1st June, stating that the termination of the contract is effective from 31st May, which was the last working day for the employee. All office operations were closed on the said date due to Bharat Bandh. The employee had handed over the assets on the evening of 30th May and took the exit interview form, which he sent to the corporate on 3rd June.

The employer has not paid the salary for the month of May to the employee. The employee requires a relieving letter to join another company.

Please suggest the next course of action for which I will be highly obliged. This incident happened with my younger brother.

Regards,
Abhimanyu

Since it is only a lapse of 7 days from the last working day, the company must have undertaken the process of settling F&F or, after a reasonable time, follow up with HR and try to settle things amicably.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai

Assuming that he was terminated for the misconduct of unauthorized absence (as inferred by the facts furnished), the company needs to conduct a domestic enquiry. If your brother falls under the workman category under the Industrial Disputes Act, he can raise a dispute before the Conciliation Officer about his termination. However, a proper decision and advice can be given only on seeing papers connected with the incident. You may, therefore, consult a specialist locally to ensure that such a remedy is available to your brother under the I.D. Act.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai

From the various posts that I have read on this matter, I find that:

1. The concerned employee has acted in good faith even after submitting his resignation. He asked for leave for some days since he had some domestic problems, and his request was declined. However, the said employee went ahead with absenting himself from work, assuming that his absence may be converted into leave after he returned. However, this did not happen, and he was marked ABSENT for the days he was away from work. This is fine.

2. The employee completed the handing over formalities in good time and to the satisfaction of his superiors. This is a safe inference since he was even given an Exit Interview Form to fill in and mail to the concerned BOSS who sits in some other location. The employee did just that... he sincerely followed the instructions given to him until the last.

Question of Terminating Services

Now, where is the question of terminating his services? Even the thought of doing so stinks! (Pardon me for saying so). It is indeed a VERY POOR HR PRACTICE.

From the dates of the last working day of the employee and the date of sending the Termination order somehow do not jell. The employee's association with the Company got over on 31st May, and the Termination order is dated 1st June. This in itself nullifies the management's action in terminating the services of the employee.

Simply put, how can you terminate the services of an employee who is no longer in your employment?

I can only say that the management's action is in VERY POOR TASTE!

The employee would be having his last laugh, after all!

Cheers,

Vasant Nair

Thank you, Mr. Vasant, for your valuable comments. Please go through the case and queries below. If you need the email that the employee had sent to the employer, I can share it if you provide your email address or write to me at [Email Removed For Privacy Reasons]. It would be greatly appreciated if you could suggest further courses of action as per the ID Act.

Case Details

The employee was in the probation period (served 3 months). After submitting the resignation, it was mutually decided on the relieving date. Following the data handover as instructed by the company, the employee applied for leave. However, the request was declined by the superior, resulting in the employee being treated as absent/unauthorized leave for 4.5 days (including one Sunday). The HR department issued a letter to him, to which the employee replied by requesting leave in Loss of Pay (LOP). Not receiving any response, the employee reported back and, as per the company's instructions, handed over the assets and obtained an acknowledgment. Since the employee's reporting boss sits at the corporate office, he was asked to courier the filled exit interview form. After leaving the office, the HR department sent an email with a letter asking for the reason and explanation for the unauthorized absence, to which the employee replied. Following this, the official email ID was blocked.

Queries

1. Can an employer terminate an employee on their last working day? For instance, if the relieving date/last working day is June 6th, is it possible to issue a termination letter on June 7th stating the effective termination date as June 6th?

2. If a termination letter is issued to the employee, what legal actions can the employee take?

3. If a termination letter is issued, what is the maximum period for an employer to release the employee's Full and Final settlement?

Regards,
Abhimanyu

Please let me know at what level the employee was working, his designation, and last Gross Salary drawn.

Response to Queries

1. I have already answered this. When the employee has served his notice period and has completed the obligation to serve out the same, he is no longer an employee of the company. Then how can his services be terminated? Most of all, what useful purpose would termination serve? After all, the employee is leaving the company's employment peacefully and after completing exit formalities. Whose bright idea is it that the employee be terminated on his last working day?

Now, can you commit murder? Yes, you can. But then you will have to face the consequences of your criminal action. Likewise, in this case, there could be a counterblast, and the employer may have to face the resulting embarrassment. Most of all, as I mentioned earlier, this would be looked at as a VERY POOR HR PRACTICE.

2. If the employee is a Workman, he can seek relief from various authorities under the ID ACT.

3. My sincere advice would be to accept the employee's resignation and settle his F & F in good time. There is no legal stipulation regarding the settlement of dues in Full and Final. When I was heading the HR function, we did this within two days after all the exit-related formalities were completed.

In case you wish to discuss this issue further, please contact me on my Mobile: [Phone Number Removed For Privacy Reasons] or landline [Phone Number Removed For Privacy Reasons]. My email ID is: [Email Removed For Privacy Reasons]

Best Wishes,

Vasant Nair

Though a reminder email was sent by the employee to release his May-12 month salary, no response came from the HR department. It's been 11 days since the relieving date.

Note: This is the same case where the employee was terminated on his last working day.

Please suggest what action can be taken further as per the ID Act.

Regards,
Abhimanyu