Can I Let Go of an Employee on Probation Due to Excessive Leave and Punctuality Issues?

One of my employees is in the probation period, but she has taken almost 45 days of leave due to marriage and other valid reasons. She is just 6 months old in this organization. Even though it is a genuine reason for her absence, work is being affected in the organization. She is also not punctual. I have told her many times regarding the same, and the management is also not happy with this. In this situation, is it possible to remove her from work? If yes, what kind of letter can I issue to her?

Please help in this regard.

Thanking you in advance!

Please advise her in writing to improve her attendance. Even then, if she does not improve her attendance, terminate her employment as she is in the probationary period. Before terminating the employment, it is better if you build records for advising.

Format for Attendance Improvement Notice

The below-mentioned format may be used to advise her:

Dear [Name],

It is noticed from the records that you are absenting very frequently. Your habitual absence not only disrupts the work but also adversely affects production. Hence, you are hereby advised to show improvement in your attendance and not to give room for such lapses in the future. Failing this, you are liable for more stringent punishment, including termination of employment.

Further, please note that your attendance will be monitored for the next one month.

Regards

Rules for Probationers in an Organization

Call the employee for formal counseling in the presence of her immediate superior. Bring to her notice the lapses, such as frequent late arrivals and absences. Hear her side of the story, if any. Give the employee a warning in writing and take her acknowledgment. Even if she is a probationer, give her a full chance to improve. If there is still no improvement, then cease her employment.

A company should be known as a fair employer, and through fair treatment, the reputation of the company will improve in the market.

Regards

Purpose of Probation in Companies

The purpose of probation in most companies is to determine whether the candidate is fit to hold the job and whether he or she is suitable for the company. You have already found out that she is a misfit. Her irregular and unpunctual attendance is creating a problem, and warnings have had no effect. Therefore, terminating the employment makes sense.

Since she is on probation, you are free to terminate the employee immediately. You do not need to provide a reason. Simply issue a letter informing her of termination in line with her offer or appointment letter.

Other than the reason you have mentioned above, observe if you are satisfied with the quality of work she does. If her quality of work is good, losing a good employee is not suggested. You should issue a letter of warning, as advised by Mr. Siddeswaram. If she doesn't respond to that, just remove her and give the opportunity to someone who is in need of a job and interested in working with you.

Your employee has already put in six months of service. If she is considered a workman and by virtue of Section 38-B of the Bombay Shops and Establishment Act, Model Standing Orders apply to your establishment, presumably having more than 50 employees, she has already crossed probation after three months of service and is to be treated as a regular employee. You cannot now terminate her as a probationer. Relevant passages are quoted below:

Bombay Shops and Establishment Act

MODEL STANDING ORDERS IN RESPECT OF INDUSTRIAL ESTABLISHMENTS NOT BEING INDUSTRIAL ESTABLISHMENTS IN COAL MINES

2(c) A “probationer” is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed three months’ service therein.

13. Termination of employment.--(1) For terminating the employment of a permanent workman, notice in writing shall be given either by the employer or the workman - one month’s notice in the case of monthly-rated workmen and two weeks’ notice in the case of other workmen: one month’s or two weeks’ pay, as the case may be, may be paid in lieu of notice.

Supreme Court of India

Indian Tobacco Co. Ltd vs Industrial Court on 23 February, 1994

"Now it is to the establishments where 50 or more employees are employed, does the Standing Orders Act apply treating them as industrial establishments within the meaning of the said Act." The Apex Court held that the High Court was right in importing the applicability of the Standing Orders Act and the standing orders to enable the respondent to ripen his period of probation to one of regularity after the expiry of three months of successful completion.

Thanks

Sushil

Understanding Probation and Employment Terms

If her terms of employment provide for a 6-month probation period, then she is still in probation. The Shop Act does not automatically make everyone permanent after 3 months. Further, if the unit has more than 50 employees, then the standing orders apply. Even there, if a person has specifically been appointed for a 6-month probation, then standing orders do not override that.

Reference to Legal Decision on Probation Period

Please refer to the decision of 2010 in Raymond v. Praful of Bombay HC, which refers to the Indian Tobacco Ltd case of the Apex Court. In paragraph 33, it holds that a probation period exceeding 3 months, as provided in the model standing orders, is misconceived.

Thanks,
Sushil