Is It Fair to Terminate an Employee During Probation Without Notice? Seeking HR Insights

Hi all,

I would like to have a suggestion on this topic. In our management, we will have to terminate an employee due to non-performance. Is it fair to terminate the employee before he finishes his probation period (3 months) without any notice? As an HR executive, I feel that management should give a warning notice. However, management feels that it is not very necessary to do so while the employee is in the probation period.

Suggestions required.

Regards,
Shekar

Hi,

The conflict is seen between HR's kind approach and what must be done in the situation. This has to be resolved by managerial action only. I may agree with you to take a kind approach - looking at the time frame, but the causes of why your management would not wait should be known. Also, what are the basic terms and conditions of the appointment? These also have a bearing on your ability to act in a particular manner.

Leaving aside the unknown details of the situation, I would make a very generalized statement and say that technically it is in order to terminate the employment of a probationer for non-performance before his completion of the term.

Regards,
Samvedan
November 27, 2005

Hi,

I think if we can go into the depth of the matter, maybe it will help. An organization does not hire anyone for charity (except if the person is related to someone high!). In this case, the candidate was appointed because he was found suitable in some respect.

It is not just termination, but the entire recruitment process and the subsequent period has been wasted. This has resulted in some financial loss also for the organization. If you are to start the process again, it will take time and again the cost will be borne by the organization.

The non-performance of the employee should be probed into and identified. Some background will have to be done. If the reasons cited can be solved amicably and the employee can be counseled, then attempts must be made to retain him/her. But if the non-performance is due to the employee only, then it is better to terminate the employee after giving an opportunity to improve performance. Convince your management if you feel after counseling the employee that it is possible for improvement.

This is my opinion.

Regards,

Anuradha

Dear Sekar,

I fully agree with Anuradha that first of all, we need to know the reason behind his non-performance, i.e., whether his non-performance is due to him or any external factors such as ambiance, culture, or his senior, so that actions can be taken accordingly. Feedback received from him would be of immense help to the recruitment process and organizational climate.

Secondly, before going ahead with a termination letter, please ensure thorough compliance with the laws. According to my knowledge, a warning letter/chargesheet is a must before proceeding with the termination letter.

Deepa

Dear Sekhar,

There is no legal bar to terminating an employee during their probation period without notice for any reason unless a notice period is specified in their Appointment/Probation Letter.

I would like to add that while it may be unethical, it is not illegal for Management to terminate without a notice period.

Based on your post, it appears that no notice period is specified in the letter. You are therefore free to terminate the employee without notice.

Additionally, I recommend that you urge Management to include a Notice Period in all Appointment/Probation Letters. This step not only upholds ethical standards but also provides a buffer for finding a replacement.

Lastly, I believe it is ethical to allow for an extension of the Notice period for underperforming employees, subject to a predetermined level set by a Performance Appraisal board. This extension should not exceed the original probation period, after which termination is usually considered. Employees with performance levels below the specified threshold should be terminated with either Notice or compensation in lieu of notice.

I hope I have addressed your concerns adequately.

Warm Regards,

SC

Hi Somu,

I believe that a person can be terminated during the probation period without notice because both parties can repudiate the contract without notice during that time, i.e., the employee has the right to leave the job without notice. According to me, the HR function of assessing his competency is determined by his manager after analyzing his commitment and attitude. Therefore, I think he can be terminated as keeping him would be a waste of money and time. Of course, I would recommend an exit interview to find out what happened to him after joining, as he was very promising at the time of the interview.

Hi! As I look at it, there are two aspects to this issue.

First and foremost, legally, there is no legal necessity in terminating a probationer but to count the notice as per the appointment order. Most managements are happy to learn of this position.

Secondly, as HRM practitioners, we basically follow the regimen that everybody can improve and none should be dismissed in a pre-conceived manner. The cost of hiring a new employee, as well as the time it takes to train yet another employee to this level, also needs to be considered.

You can discuss with your management the options available; the first may satisfy their ego, but the second should not be lost sight of.

Hi! As I look at it, there are two aspects to this issue. First and foremost, legally, there is no necessity to terminate a probationer, but comply with the notice period as per the appointment order. Most managements are happy to understand this position.

Secondly, as HRM practitioners, we basically follow the principle that everybody can improve, and no one should be dismissed in a pre-conceived manner. The cost of hiring a new employee, as well as the time it takes to train another person to this level, should also be taken into account.

You can discuss with your management the options available; while the first may satisfy their ego, the second should not be overlooked.

KK Nair

Dear Friends,

I feel termination is the last resort. We should delve into the depth of the issue and look at why such a thing happened. Hiring and firing are not proper solutions.

Regards,
Vikram Singh

Hi,

If the employee is not performing his duties well and there is a need to terminate him, either during the probationary period or after confirmation, we must first receive a complaint letter from the concerned Head of Department to the HR Department. Subsequently, the HR Department should issue a warning letter. The employee should be given three opportunities to improve his performance. If he fails to do so, based on the warning letters issued, he can be terminated from his services with one month's notice or as per company policy.

Regards,
Y.V. Madhava Reddy

Hi,

This is more of an ethical issue than a professional one. It is up to the department head to understand how to train his team to make them perform to his expectations. For example, in IT, it is almost impossible to expect a fresh BE graduate with absolutely no exposure to programming to start developing complicated algorithms in his first week of duty without any training.

The probation period itself is to help the employer and the employee match each other's expectations. In this case, the employer should wait until the probation period is over and then decide whether to confirm the services of the employee or not. This is what is usually mentioned in standard appointment letters as well. So the employee will also be well aware of the fact that he will be asked to leave if he doesn't perform in the given time. If the organization is not in a financial position to wait for the same, then it should not hire a candidate who will not meet their expectations.

My point here is that the employee should be given a realistic amount of time to perform, and this should be communicated to the employee at the time of joining. Terminating an employee during probation is pretty unethical and will ensure that the attrition rate of the company will shoot up and reduce the overall morale of other employees.

This is what we experienced in my previous company. One of the employees was asked to resign within 3 months (during probation) though she was not a below-average performer per se (management decision, of course). I (as the HR) did try fighting tooth and nail for her retention with the management, and I was given the answer that the organization is not there for charity. I did not say anything further but knew that this will spell further trouble. The employee left with tears in her eyes because she was the only earning member of the family. But within a very short span of time, she got an excellent break with a leading IT company. What she did was refer all our key players here to her new company. In the process, the company lost not only the so-called non-performer but also most of its star performers. This, in fact, made the company in a financially worse position. Had they retained her, the loss would have been much lesser than what it is today!

Well, think about this...

Regards,

Prathitha

Dear All,

The intention of placing an employee on probation is to test their capability to perform the job entrusted to them. Once they are confirmed, they will continue until retirement, normally. Hence, a non-performer will be a liability to the organization until retirement. If an employee on probation is not performing well, they can be terminated with reasonable notice.

If a new employee is not adjusting to the organization's culture and is not productive, the reasons for this need not be attributed to the employee alone. There could be various other reasons such as poor induction, ego problems among senior employees, working conditions, and non-cooperative colleagues, which may hinder the new employee from properly discharging their duties. Therefore, before deciding to terminate the employee, they should be heard and counseled well in advance and given a chance to improve their work.

Venkat

If an employee is not confirmed after completing his probation period, which is about 6 months, and continues working without any notice or any kind of communication, and his department is also changed without any notice, can he be terminated?

Dear All,

I am also facing this problem as an HR person. I realized that we must mention a few things (not the entire list) during the final selection:

- Company rules.
- Way of working.
- Expectations from him and his responsibilities.
- Competition in the labor market and the opportunities we are offering.
- Performance and non-performance standards within the company.

After selection, if any issues arise, to whom should he talk, etc.

If there are problems with the existing way of working, how he wants to work, and how it will benefit the company. Sometimes, employees want to work professionally but do not receive a response from top management, leading them to feel compelled to leave the organization.

If an employee is underperforming, we can send a warning letter and ultimately terminate their employment.

I have observed in my company that the behavior of existing employees, lack of cooperation, and working late have caused new employees to leave the organization.

During the final selection process, we need to inform the new hire about everything they will face so they can make an informed decision.

Regards,

Rizwan

1. Please do not terminate unless the probation period is complete. A day more or less will not make any difference.

2. State non-performance or unsatisfactory performance during the probationary period as the reason for not confirming/not regularizing the services. Also, give a reference to the appropriate clause to this effect in the appointment letter issued to the employee.

Hi, Somusomu1,

I am not able to comprehend what you have posted. Please improve your written communication. I wonder how you are surviving in this HR field with such fantastic communication. Take it in the right spirits. Don't be spontaneous while posting; think and post so that sentence formation comes out well.

Thanks,
Vinod

Hello,

Courts have been holding that unless the full probation period has expired, it is not legally correct to arrive at a decision on the performance of the probationer. So please take action accordingly.

Regards,
(A.S. Sharma)

Hi Vinod,

I had asked everyone to discuss the issue I posted on termination. Thank you for your suggestions on my communication. It would also be really great if you could comment on the topic of employee termination.

Thanks,
Som

Hi All,

I have read the details of Termination on Probation period. I had worked with a Software Company. The Company has terminated me without notice or payment of the notice period (One month as per the Appointment Letter) till today. I made a complaint against the Company to the Asst Labour Commissioner. The Company has not appeared before the Conciliation Officer on the Notice given. What are the legal actions to be taken by the appropriate Government as per the Industrial Disputes Act and other Labour Laws? Can I get the notice period amount and its interest along with the amount for mental harassment? Your answer will be highly appreciated.

Basudeva Choudhury [Login to view]

Hi Basudev,

If you can fight for your rights, you will definitely get your one month's salary provided you have not received your relieving letter or signed any settlement document. Please contact a corporate lawyer; this will help you a lot in finding a quick solution. Please update us on the same, and we shall also try to provide you with some input. If any further input is required, kindly let us know.

Thanks,
Somu Shekar

Dear Somu,

I am in Delhi. Can you suggest a corporate lawyer? I am being pressured to resign from the company. For the past 10 days, I have been denied entry into the office. At the beginning of the month, I received a letter - the first during my time with the company - instructing my transfer to the HR Department from September. I have been with the company since February of this year. My designation was changed from Secretary to VP HR to HR Assistant, and when I raised objections, they removed me from the office. No positive or negative communication has been given to me.

Please help me sort this out.

Contact number: 9818842402

Manish

Dear Somu,

I am in Delhi. Can you suggest a corporate lawyer for me? I am being pressured to resign from the company. For the last 10 days, I have not been allowed to enter the office. At the beginning of the month, I received a letter, the first during my tenure with the company, directing me to be transferred to the HR Department from September. I have been working there since February of this year. Additionally, my designation was changed from Secretary to VP HR to HR Assistant, and when I objected, they removed me from the office. No negative or positive letter has been issued to me. Please help me sort this out.

Contact number: 9818842402
Manish

Dear Manish,

I am not familiar with any corporate lawyer in Delhi. However, finding one should not be difficult. You can discuss your issues with any lawyer and ask for a referral to a good corporate lawyer. Alternatively, you can refer to the Yellow Pages, websites, or call customer service numbers like 3333333. I am unsure of the specific number in Delhi. I hope this information is helpful. Please update me if possible.

Regards,
Somu Shekar
Email: smile_somu@yahoo.com

Hi All,

In this concern, we can always see only the employer is taking advantage of hiring and terminating. Why is an employee not able to take action during his termination? It's because of a lack of information. Does an employee have rights to seek justice? Viewers and members, if you go through this topic, many members have suffered without solutions and with unresolved queries. Can we shed more light on this post? Knowledge grows when it's shared.

With Regards,
Somu Shekar

Hi Everyone!

There is a huge gap between what is written (in laws and company policies) and what is practiced.

There are laws that provide us with the tools to take care of erring employers, but on the other hand, there is the issue of cases not being resolved promptly. By the time the case is resolved, the employee loses momentum and patience to continue. It is up to the employee (now ex-employee) to decide whether to pursue the matter further, considering the mounting legal expenses and the hassle of court appearances.

Most employees, or rather ex-employees, choose not to continue due to these reasons. If the time lag between filing a case and its resolution is reduced, people may opt for quicker justice.

In cases where employees are compelled to resign, they do not leave alone. They depart with the best employees because an atmosphere of uncertainty, doubt, mistrust, and fear of job loss is created. When this occurs, employees prefer to leave while things are still positive. Ultimately, people do not quit companies; they leave their bosses.

As HR Managers, our situation is delicate because we must follow instructions, even if the consequences could be severe. We walk on thin ice, as we must report the fallout to Top Management while sometimes managing their inflated egos.

MY MANTRA FOR AN HR MANAGER/HR PROFESSIONAL:-
The only solution is to have an open system of communication, a legally binding contract detailing all terms and conditions, rights, responsibilities of both parties, and the actions in case of default by either party; clear guidelines on procedures, and above all, an honest approach because honesty is not the best policy but the only policy to follow.

However, this can only be implemented before any damage occurs. After damage is done, only corrections/amendments can help with damage control. Even in this phase, open communication is key to resolving issues.

At times, HR professionals may need to make unpopular decisions. Stand firm if you believe in it ethically. Always provide reasoning and logic to support your decision. Remember, trust begets trust, and you may need to work hard to convince management.

Regards,

Shyamali

Dear Mr. A.K. Sharma,

Thank you for sharing the court's decision. Could you please provide me with the details of the judgment and court information so that I can update my case? Additionally, may I request your contact number for further communication regarding this matter?

Thank you.
Basudeva Choudhury
Mobile no. 9891430567

Dear Somu,

I have not received any reply from your side. As you have mentioned that I should contact a legal advisor, this is too difficult for me because it is too costly, and I have to pay the professional fee. How can I earn? Kindly provide me information on this matter as soon as possible. Currently, the status of the case is that the employer has not attended the conciliation proceeding, and the case has been transferred to the Labor Court.

I hope for your prompt reply.

Basudeva Choudhury
Mobile no. 09891430567
Email: choudhurybasudev@rediffmail.com

I agree with Madhava. Even though the employee is in his/her probation period, as HR personnel, we better give them a chance to improve themselves first by verbal warning and later by a written notice stating the period of days where he will be put on observation and monitored keenly. Even then, if we find there is no improvement in their performance, then we can go ahead with the termination.

But by considering their future and also to avoid sending negative ideas to the rest of the employees against the management, we better insist on him resigning from his position rather than terminating him. If he creates any problem without resigning, the final option is termination.

Sirisha Reddy

I would like to ask all of you, if an employee is proficient in work and efficiency but struggles to cooperate with his or her fellow colleagues, is it still possible to terminate him or ask him to leave voluntarily, even though he has performed well with all his tasks at 90% efficiency?

I recently came across a decision by the Supreme Court stating that an employee, even while on probation, cannot be terminated without being given the opportunity of a fair hearing.

Can someone provide more clarity from both the employer's and employee's perspectives? This matter is urgent.

Hi, I think first we have to find out what the problem is. Why is he not able to perform? If required, we can provide training. After that, we can analyze the performance.

Regards,
Prakash

Hi,

As you say, he is a good performer, first find out his/her problem and address it. Don't jump to termination as the first solution.

Have you considered that others may have provided incorrect complaints due to workplace politics, especially since he is a high-performing employee?

Regards,
Satya

Direct termination may lead to a dispute if he goes for legal matters. For termination, a company has to give a warning letter which the person has to acknowledge with his signature, then only it's valid.

OK. I also agree with some, but first, do a meeting along with the HR, his/her HOD, and that guy to understand the situation. Sometimes, employees face many problems such as:
1. House problems
2. Family problems at home
3. Any other issues, like failure in love, loss of memory
4. Any problems with subordinates and staff, etc.

So, if an employee is facing any problems, counsel them and try to clear the issue. If the full team has not found any problems with the individual, then issue an advisory letter for non-performance and provide a stipulated time for improvement. If the situation does not improve, issue a stern warning, followed by a charge sheet and then conduct a domestic inquiry. No employee should be terminated without an inquiry.

Termination is not always the solution; consider giving the individual another chance by transferring them to a different department if they are not happy in their current role. Remember, HR is not just about rules; it's about being humane. Please counsel.

T&R
MK

Dear friend,

It is technically correct to terminate the service of a probationer during the probation period. There is no legal bar. However, from an HR point of view, it is ethically right to give an opportunity to the probationer to explain the reasons for non-performance. If he is able to improve as per the management's expectations, then retain him. Whatever is technically and legally right may not be in the best long-term interest of the company. A humanitarian approach may be taken.

Regards,
vnmnair

Dear friend,

It is technically correct to terminate the service of a probationer during the probation period. There is no legal bar. But from an HR point of view, it is ethically right to give an opportunity to the probationer to explain the reasons for non-performance. If he is able to improve as per the management's expectations, then retain him. Whatever is technically and legally right may not be in the best long-term interest of the company. A humanitarian approach may be taken.

Regards,
vnmnair

Friends,

As per the Act, it can be done, but before doing this, management must be careful about these aspects:

1. Offer letter and its wording.
2. Image of the company.
3. Reasons for the employee's non-performance.

Regards,
Shankar Kumar

There seem to be two distinct views about the termination of a probationer. One is that he should be advised in writing about various lapses, deficiencies, or non-performance on his part. The other view is to terminate his services by invoking the contractual provision without commenting on his performance.

I would like to know which step would be more legally appropriate.

Cyril

What is the minimum period for probation? If you specify a certain time period, please explain why that period has been specified. Support your view with legal precedents.

Dear Friends,

The termination of a "Probationer" is a specific procedure. For your clearance of your doubts, please go through the attachment.

Regards,
PBS KUMAR
9848499629

Dear,

The employee is not a doll; please think about yourself. What conduct did the interview have? Now, can you say the performance is not good? This is true; we can't assess all aspects at the time of the interview. Both parties are responsible for this outcome, and termination is not the solution.

Consult with the individual and set a specific timeframe for improving his/her performance.

Dear friends,

I differ in opinion. A new appointee is given 3 months to perform on certain KRAs as per his job profile or the very purpose of hiring him. The job performance will be judged by his superior/boss on certain parameters which are explained to him, i.e., the role he will play. So, why should a person be terminated before the completion of his probation period, the time given to him to perform on KRAs? I think it is a contravention of the contract which states a 3-month judgment period for a newcomer. It is also illegal to terminate a probationer before the completion of the probation period, as per the case laws of the Supreme Court and some high courts as well, on the grounds that you have not given complete time to the new guy to perform. So, how can you determine before the completion of the probation period that his performance is not good? He can very much challenge your decision in the court of law. Therefore, explain to the management the process and the legal angles attached to it.

Thanks,
Sundeep Wadhwa

Dear all,

It is true that employees under a probation period should not be terminated, as they are in a training phase. However, they are still liable to the company, and the company must address any issues of non-performance.

Could someone please advise on the procedures one could follow to inform them about their non-performance without resulting in their termination during the probation period?

Thanks & Regards,
Aarti Khanna

Everybody has put up their views on behalf of an employee. Can anybody suggest from an employer's point of view? The company is investing heavily in paying a high salary for a senior position. However, when an employee, even after almost 9 months in the company, does not perform even 1% of the target given to him, how should the management react? Your valuable suggestions are required. Please note that this post relates to the National Sales Manager for a medical disposable company.

Where to find documents for labor laws in India where they have mentioned about employees and probation period? Any Indian sites or Cite HR threads where we can find laws regarding the probationary period and employee relations?

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I have corrected the spelling and grammar errors in the user's input and ensured proper paragraph formatting with a single line break between the two paragraphs. The original meaning and tone of the message have been preserved.

In my view, three months is too short for an employee to be 100% productive. You should increase the notice period, and then if an employee does not justify it, he/she may be removed. An ideal probation period, in my view, is six months to make a decision about any employee. For obvious reasons, we may decide before that, but to be fully productive, at least four months are needed.