Facing Unfair Termination During Probation: How Can We Seek Justice for My Wife?

This is to inform you that my wife was working in a pharma company. They recruited her on a permanent basis initially as a replacement for a lady who went on maternity leave. However, once the lady returned after four months, my wife, who is an Executive Assistant to the COO, started facing harassment at work with the intention of forcing her to resign. One day, they orally informed her that they would terminate her on performance grounds and then took a physical handover of the company assets. As her husband, I raised a complaint to HR regarding the harassment at work, with copies marked to the Commissioner of Police, Commissioner of Labour, and the National Women's Commission.

We subsequently lodged a written complaint with the Commissioner of Labour and the National Women's Commission. Two weeks later, they sent a termination letter citing absconding as the reason. We presented the same letter to the Labour Commissioner, who requested a joint meeting. The Assistant Commissioner stated that they could terminate the employee if they are in the probation period as per the appointment letter, which mentioned a six-month probation period and the requirement of a 90-day notice for either party to leave the company.

Based on this, we sought 90 days' payment in lieu of termination. However, I now feel the Labour Commission is biased. Kindly advise on how to proceed if we do not receive justice at the Labour Commissioner's office.

Probation and Termination Practices in HR

A probationer's service can be terminated without any notice or cause, which is standard industry practice, though not aligned with government service rules. However, the HR department made an error by sending a termination letter citing "poor performance" as the reason. This could be contested as it may cause stigma and is not a termination simpliciter. If the termination was due to poor performance, the company should have issued a notice and allowed the employee to explain her position. HR should have conducted an inquiry or provided the employee with opportunities to be heard. This was a mistake by HR.

Moreover, HR committed a blunder by appointing an employee with a probation clause, as if the job were permanent. HR should have offered ad hoc employment or a fixed-term contract for four months. If the offer was for four months, the service would have ended automatically after four months without the need for advance notice or grounds for termination. The appointment order mentions probation and states that during this period, service is terminable without notice. However, it also mentions a 90-day notice in the next paragraph, which should state that upon confirmation, service shall be terminated with three months' notice. This is another mistake by HR.

Understanding Harassment and Employee Rights

Asking an employee to leave is not harassment and can happen to anyone not performing. If spouses start complaining against HR to authorities like the District Collector or Women's Commission, it could cause trouble for the entire HR fraternity. HR forums may react, potentially affecting careers. As a husband, you have no right to demand your wife's rights at her company; you can exercise your rights at home.

Case Study for HR Professionals

This situation serves as a case study for HR professionals who take steps without reviewing appointment order clauses. In the case of Anand Lenin Vedanayagam Vs The Registrar, Pondicherry University, the Madras High Court ruled that an employer can terminate a probationer without assigning reasons. However, if termination is due to misconduct, it should be done after providing the employee an opportunity to be heard, as this is a stigmatic order and not a termination simpliciter.

Regards, Madhu.T.K

Termination of a Probationer

A probationer can be terminated if their performance is not satisfactory during the probation period. Nowadays, it has become a trend in the industry to "hire and fire" on the grounds of probation. In this case, the HR department has committed several faults, such as issuing a show cause notice regarding why she brought her husband, implementing a Performance Improvement Plan, and terminating on the grounds of absconding. This case can be tried in the State Labour Court/Tribunal against the order of the Labour Commissioner, as the concern considers the judgment biased. Now, the concern has to seek the help of a good law consultant dealing with labor matters, with all documents including the appointment letter.

Employer and Employee Rights

The laws and rules are the same for both employers and employees. However, those workers who show courage to challenge have yielded results. In this matter, the lady must fight against her "termination." Mr. Madhu T.K has rightly pointed out some key points; fight on the grounds of those averments rather than claim a three-month notice, etc. If the appointment letter has a clause for a three-month notice, notice must be given prior to termination if terminating before the probation period.

Legal Challenge Against Unfair Termination

As rightly captured in the observations above, the company has chosen to flout the conditions in the appointment letter and the principles of natural justice in terminating the lady. The acts of the management of terminating services without giving a fair opportunity to explain the alleged poor performance and without giving notice of 90 days are a prima facie blatant violation of legal provisions and are the most fitting case for a challenge in the Labour court. The high-handedness on the part of the errant management must be taught a lesson. Please fight on all fronts—legal and social—until management is brought to their knees.

Regards,
Vinayak Nagarkar
HR Consultant

Lack of Professional Competence in HR

The HR department has demonstrated a lack of professional competence. Why issue unnecessary letters to a probationary employee? Issuing a PIP letter indicates a desire to retain the employee. Otherwise, an employee on probation could be removed as per the offer letter. If the company has stated a 90-day notice period, they need to honor it and either pay 90 days' salary or keep the employee for 90 more days and then decide whether to show the exit path or retain them, as they feel. The lack of professionalism by HR is clearly evident, and they need to familiarize themselves more with law and HR rules first.

Termination on Performance Grounds

1. Everybody above has endorsed that the service of an employee can be terminated on the grounds of performance. That is no doubt absolutely correct, but this authority with the management is not unfettered. Non-performance has to be justified in the form of recorded feedback and a written commitment from the employee that he/she intends to work hard to improve on the feedback. This is nowhere mentioned in the post. In case prior documented feedback is not there, it's a strong case to fight.

HR's Role in Appointment

2. Since it was a leave vacancy, the HR should have appointed on a fixed-term vacancy instead of against a permanent vacancy as they did in this case. This is a blunder on the part of HR. Nowadays, HR thinks that they can get away with anything they do and nobody can stop them.

Legal Authority of the Husband

3. The husband has no legal authority to intervene in the matter and make complaints. His actions have further aggravated the situation.

Termination Clause During Probation

4. Normally, companies have a 15-day or 30-day clause for termination during probation. I doubt there is a 90-day clause. Please share the relevant clauses of the appointment order to advise properly.

Legal Recourse for a 90-day Clause

5. Assuming that there is a 90-day clause, then you have a point to take the matter to court. In case your wife comes under the category of workmen, then to the Labour Court/Tribunal, and in case she does not come under the workmen category, the civil court for claiming the compensation.

Warm Regards,

Bharat Gera
HR Consultant
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