Probation Dilemma: Should Misconduct Lead to Unpaid Days Before Termination?

Hi, If an employee is on a probationary offer letter for 2 months and gets paid for the 1st month. However, before completing his 2-month tenure of probation, he misbehaves with the manager, uses electronic devices, and argues on the facts. All the misconducts mentioned herein are communicated and signed by the employee during the recruitment process, which also stated that it may lead to termination depending on the severity of the issue. Consequently, the employee is terminated. The employee verbally accepts the facts but refuses to acknowledge them in writing. Additionally, he demands salary for the days he worked before causing the disturbance that led to his termination. The rules and regulations communicated to the employee during recruitment do not specify whether he would be paid in the event of termination or not. My question is whether this employee is entitled to receive payment. The termination is based on 3 points of misconduct outlined in the rules and regulations signed by the employee, and all these 3 misconducts occurred during a single event. Regards, AdChetan

Dear AdChetan,

You have mentioned three misconducts on the part of the probationer, viz. he misbehaves with the manager, uses an electronic device, and argues on the facts. The first one needs clarity—what exactly was the misbehavior? The second one could be a minor misconduct, and the last one may or may not be a misconduct.

You seem inclined to award him punishment for his alleged misconducts. Have you counseled him? Is he resistant to your counseling? Termination is an easy option, but it will increase your recruitment cost. Why rush to termination? Why not issue a show cause notice and a warning letter instead? A hire-and-fire policy may be efficient, but it can instill fear in employees and harm the organization's culture. Have you considered the implications of such actions?

Termination is the harshest punishment. There can be no severer punishment than this. Yet you wish to go further and penalize him with the forfeiture of wages? This action goes against the principles of natural justice. You cannot impose more than one punishment. Withholding monthly salary as an "extra" is more reflective of animosity. I advise you to advise your management against harboring resentment towards a probationer who has erred. There are more critical matters to attend to. Therefore, compensate him until his last working day and move forward.

Thanks,

Dinesh Divekar

Termination During Probation Period

Since the employee is in the probation period, it is better to terminate him simpliciter instead of awarding him punishment. This is because conducting a domestic inquiry and going through the tedious process would be unnecessary. Under the Shops and Establishment Act, you are required to make the full and final payment of dues at the time of discharge.

You have received suggestions from our seniors. Here's a request: let the employee misbehave, not the employer. Termination is enough; deducting pay is not. The employer had chosen to hire him in the first place. Hence, release him and set him free.

I have a few questions:

Office or Factory Environment?

Is it an office set-up or a factory environment that you are in? I would like to know your company's business as I have not seen many companies issuing offers with a 2-month probation period.

Evaluating Misconduct

As an HR professional, please check the nature of the misconduct. Arguing with a superior is not misconduct strong enough to warrant termination (unless one uses abusive language), and the use of electronic devices is not a crime, although it may go against some company's policies. However, in case of an emergency, such company policies may need to be relaxed. So, the question is, "What is the misbehavior?" Is it related to assigned work or some personality aspect? Please check and evaluate.

Decision to Dismiss

Based on your write-up, it seems that you have already decided to dismiss the employee. In that case, ask him to resign. If he refuses, then issue him a termination letter and release him after compensating him for the days he has worked. If he has committed fraud that has cost the company money, then you may withhold his salary. However, you need to remember that an aggrieved employee has other avenues to seek redress for his complaints. If you have clearly stated in the offer/appointment letter that his employment during the probation period can be terminated without giving any reasons, you can proceed.

Employee Entitlement to Salary Upon Termination

Unless your standing orders specify that the specified misconduct can be punished with a penalty, you cannot impose a penalty. Refusing to pay salary for the period actually worked is an imposition of a penalty, so you can't do it.

Even if a penalty is imposed, it must be related to the misconduct and aimed at recovering losses incurred or potential loss, which I suspect is not the case above.

So, he is entitled to his salary until the date of the misconduct, as he claims.

I agree with Deeptii. All the actions from the employee's end were mentioned in the standing rules of the company policy. Also, it was clearly mentioned that they would lead to termination. Additionally, I have clearly mentioned that the employee agrees to the facts verbally but is not willing to accept the facts on paper or the warning letter. What should be done now?

We are a BPO in Gujarat.

Regards,
AdChetan.

Purpose of a Probation Period

The purpose of a probation period in favor of the employer is to examine the suitability of the candidate for the position for which they are employed. If the employer does not find the candidate's work and conduct suitable, the candidate should be simply relieved while being paid all dues without assigning any stigma to their career, unless there are serious allegations.

Merely raising allegations does not have a sound footing to stand before the scrutiny of the law. Other suggestions mentioned above are good, to the point, and appreciated.

Thanks,
V K Gupta

Clarification on Misconduct and Termination Procedures

All members have given valuable advice. Mr. Saswata Banerjee has already clarified that the incident must feature in the list of misconducts, and the penalty you wish to award should be as per the standing orders.

BPOs are covered by the Shops and Commercial Establishments Act, and standing orders are applicable. If standing orders are not certified, Model Standing Orders shall apply, and misconduct is clearly specified in these. Gujarat followed the Bombay Shops and Commercial Establishments Act, and now the Gujarat Shops and Commercial Establishments Act is available on the website of the Department of Labor, Gujarat. Until or unless exempted, standing orders shall apply.

The employer is personally held responsible for the faithful observance of standing orders. Therefore, act in accordance with standing orders, and if these do not apply, then in accordance with service rules and regulations. Termination seems to be too severe and harsh.

It is certain that wages up to the last date in the office have to be paid along with a service certificate on the last day in the office. You cannot forfeit the wages.

As rightly said by Mr. Doaba, termination after following a domestic inquiry may be considered too severe a punishment. Therefore, it is better to dismiss the individual during probation as per the Model Standing Orders applicable to Bombay shops and establishments.

Sometimes, an easier process provides peace in the long run rather than trying to impart moral lessons to a child before they reach adolescence or adulthood.

Dear AdChetan, You have cited three instances of misconduct on the part of the probationer. First, you need to delve deeper into the details of the selection process. What was the probationer's motivation level and approach at that time – most likely high? Next, you should identify whether his behavioral tendencies led to misconduct specifically towards you or if it was a general issue with everyone. It's crucial to differentiate between these two scenarios and then investigate the possible reasons for such behavior during the probationary period. Perhaps he was dealing with challenging or stressful working conditions, uncooperative colleagues, or unsupportive supervisory staff, among other factors.

Following this analysis, you should convene a meeting to decide whether to terminate his employment or not. Regardless of the outcome, it is essential to draw conclusions that will help in retaining other newly hired resources. Evaluate the behavioral trends, especially considering that he has completed his first month in a relatively lighter workload.

Regards, Usman Ali