Can You Fire an Employee Immediately for Poor Performance Without Notice?

Can an employee be terminated with immediate effect due to non-performance without providing prior notice?

With regards,
Sangeetha

Please let the forum know whether the employee is under a probation period or is a confirmed employee. Also, let us know the termination clause to provide you with an appropriate view.

Termination During Probation Period

Termination during the probation period due to non-performance is quite easy. No prior notice needs to be served. But after confirmation, the notice period, as stipulated in the relevant clause in the appointment letter, needs to be served.

However, keeping in view the principle of natural justice, an employee should be given sufficient opportunities to prove themselves in the job. That is why companies are fixing the period of probation. By all means, an employee on probation should not be terminated for non-performance. Give warnings and issue memos. If required, extend their probation period. Termination should be viewed as a last resort.

Thanks.

Regards,
R K Nair

Termination During Probation

When an employee is on probation, management can terminate the employee based on unsatisfactory work performance. Normally, management will recruit an employee for a minimum performance level of duties relevant to their post. If the performance is lacking, they will give the employee one or two months to improve. Only after this period will they consider termination.

For any employer, employees are required to perform their work; that is why they are hired. If an employee performs poorly, it is within the employer's right to dismiss them. Otherwise, if poor work is tolerated, it will negatively impact the company.

Dear Sangeetha,

Your question requires some basic clarification.

Nature & Type of Employment

a. Nature & type of employment offered to the employee: (Nature - Temporary, Probation, Permanent, Contract, etc.) (Type - Managerial, Non-covenanted cadre, etc.) basically to find if there is a Master-Servant relationship.

b. Any Certified Standing Order is in force in your establishment or any manner of discipline is in force or not in your firm?

c. Any valid terms & conditions - Contract for employment or Contract of employment?

d. The state where the employee is working?

Answer to Your Doubt

i. As a matter of observing the Principle of Natural Justice, you should issue a notice to the concerned employee and give him an opportunity to prove his innocence. If the terms of employment permit, a domestic enquiry can be conducted.

ii. If a notice period for termination is recorded in the Appointment Order, you have to observe this provision with proper grounds.

iii. It is up to you to terminate an employee without notice, provided the terms of appointment of the concerned employee, the Code of Conduct, or Certified Standing Orders as the case may be support your decision. Additionally, the custom and practice prevailing in your firm should also support you for the termination proceedings.

Any doubts can be clarified if required.

Regards,
Jagdish K.

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First of all, in our HR study, we learn that we try to avoid termination as much as we can because, as we are in human resources, we need to care about the manpower and think about their development.

Nature of Justice in HR

When we talk about the nature of justice, we should give an opportunity to each one irrespective of whether they are on probation or confirmed (even the basis of our Indian laws is the same).

Handling Unsatisfactory Performance

Secondly, in the case of unsatisfactory performance, there is a corporate process that HR professionals use to follow. They issue a letter about the intimation of the same and the basis of the appraisal. HR professionals identify the reasons for unsatisfactory performance and plan a training and development calendar accordingly if needed, instead of terminating anyone.

Legal Considerations

Thirdly, let's think in terms of legal ways. If an employee with unsatisfactory performance is still terminated, it is very difficult to prove the same in court that they are below performance. The process of appraisal can be challenged in court because most of the appraisal processes followed by companies are one-sided. Many times, the superior only decides whether the performance is good or bad, except for the 360-degree feedback theory.

Regards

Termination as a Last Resort

Termination should be the last option, whether an employee is on probation or not. In HR practice, we have a PIP (Performance Improvement Plan), where employee weaknesses and areas of non-performance are identified. The employee is given targets to achieve within a specified period, at most 6 months (this can be during the extension of the probation period); the targets are what were not achieved. The supervisor and the employee should identify the weakness areas and sign the PIP. Support in terms of coaching and training should be given to encourage performance. Where improvement is not seen and there is sufficient proof of no improvement, termination may be applied with a fair hearing.

Please read more on Performance Improvement Plans.

Termination on Performance Grounds

It is not a good precedent to terminate an employee on performance grounds. Actually, the employee should be trained in the specified job and should be helped repeatedly to attain perfection.

However, the general rule states that during the probation period, an employee can be terminated with 24 hours' notice. After confirmation, the employee must be given a notice period as specified by the appointment letter.

Termination Under Employment Acts

Regarding your query, let me clarify that termination is a significant section of the Industrial Employment Standing Order Act and the Industrial Dispute Act. These acts outline specific rules and regulations regarding the termination of an employee. If an employee is found to have misconduct, or is discharged or retrenched during their probation period, the employer has the right to terminate the employee without notice at any time. This also applies in cases of inadequate performance. However, before termination, the employer must provide the employee with a hearing and request an explanation. If the employer discovers a valid reason for the poor performance, the termination may be revoked, or the employee may be given another chance.

Thank you.

First of all, in our HR study, we learn that we should try to avoid termination as much as possible because, as human resource professionals, we need to care about the manpower and consider their development. When discussing the nature of justice, everyone should be given an opportunity, regardless of whether they are on probation or confirmed (even the basis of our Indian laws is the same).

Secondly, in the case of unsatisfactory performance, there is a corporate process that HR professionals follow. They issue a letter informing the employee of their performance issues and the basis of their appraisal. HR professionals identify the reasons for unsatisfactory performance and plan a training and development calendar accordingly, instead of terminating anyone.

Thirdly, in legal terms, if an unsatisfactory performance employee is still terminated, it can be challenging to prove the same in court. The appraisal process can be challenged in court because most of the appraisal processes followed by companies are one-sided. Often, the employee's superior is the sole decision-maker on whether the performance is good or bad, except for the 360-degree feedback theory.

Clarification on Proving Underperformance

Regarding your third point, I would like to clarify that proving underperformance of an employee is not difficult, at least not in the IT/ITES/Engineering/Manufacturing/FMCG sectors. Employees are provided with predefined goals in terms of Key Result Areas (KRAs) upon joining, clearly stating expectations. If an employee is underperforming, HR first seeks to train and improve their performance. If all efforts fail, verbal and written warnings are issued based on feedback reports from the reporting supervisor/manager and the analysis of KRA achievements post-trainings. All warnings are documented in the employee file. If the situation does not improve, HR recommends termination to management.

Unfortunately, society is becoming increasingly insensitive to the less fortunate, with individuals striving for quick success by any means necessary. Organizations prefer experienced hires over freshers, leading to minimal training requirements.

While HR provides multiple opportunities for improvement, termination may be necessary if an employee cannot contribute effectively to the organization's objectives. In a competitive market with abundant skilled labor, organizations must either train underperformers or replace them to sustain growth and profitability.

Ultimately, businesses exist to make a profit, creating employment opportunities as a byproduct. If an employee cannot contribute to the organization's success, retaining them becomes counterproductive.

Regards,
Sourabh

Your points are valid, and I agree with you. However, could you please clarify whether evaluating the performance of a new joiner based on 6 months is truly justifiable? Typically, it takes at least 3 months for a new employee to understand the culture, people, and processes of the organization. The remaining 3 months are then crucial for them to perform and achieve their goals.

Legal Considerations for Termination

According to the law, if you intend to terminate someone, regardless of their probationary status or confirmation, you must issue them a show-cause notice with sufficient time to allow them to submit their explanation, following the principles of natural justice.

A termination during probation can be possible if the same clause is mentioned in the appointment letter, or if the individual is entitled to an extension of probation based on the next assessment.

Thank you.