Terminated Employee Threatens Legal Action: Can He Refuse Office Visits for Settlement?

Termination of Technical Head During Probation

We recently hired a technical head for 23L/A with 15 years of experience. However, due to a lack of performance and interest, we had to terminate him during the probation period itself. As a technical head, he failed to guide the team members, and they were often asked to check Google for answers. He came, read news during office hours, sat before the functional codes, and kept staring at them in front of the MD (fortunate that he was from the technical side).

He never sent any daily reports nor participated in meetings. So, we had no other choice but to terminate him immediately (he worked only 20 days). He was not able to clarify his contribution even after the training period (3 days). We have been requesting him to come for a discussion and settlement, but he says he is terminated, and according to employee policy, he will not enter the office.

Question on Employee Policy in India

I don't remember learning about this policy when I did my MBA abroad. Is there any policy in India where former employees are forbidden to visit the office even if requested? He says he will send a legal notice if payment is not released for the 20 days he worked but will not enter the office for formality.

Is there anyone to respond to this?

Dear Sylvia, I have identified several shortcomings in your HR Department:

a) If the decision was made to terminate the Technical Head, that individual should have been informed about how the separation process would proceed. You or a senior colleague could have instructed them to submit a letter of resignation. Once the resignation was approved, they should have completed the necessary clearances from all departments before becoming eligible to receive their rightful dues.

b) As the Technical Head has ceased reporting for duty, it is imperative to send a letter to their last known address regarding the abandonment of their responsibilities. For a proper separation, they should be advised to submit a resignation letter, obtain clearances from all departments, and collect their dues. The letter should also state that wages cannot be disbursed until the clearance procedures are completed. This notice should be sent via Registered Post/AD.

c) Before dispatching the letter as outlined in (b) above, it is advisable to have a discussion with the individual to clarify the separation process. There may have been a misunderstanding regarding the termination. While there are no specific labor laws governing separations, conducting a domestic inquiry is typically required for employee terminations. However, this case may require a different approach due to the confusion possibly caused by the casual use of terms like "termination."

d) The selection of such a candidate represents a recruitment disaster. It is essential to investigate the reasons for the recruitment failure and implement corrective measures. The candidate in question appears to be difficult, and the absence of this trait during the interview suggests a lack of proper training for senior staff in interviewing skills. This incident highlights the misconception of being "experienced in recruitment or interviewing."

e) The incident you mentioned underscores the significance of written communication. It implies that written communication practices may not be consistently followed in your company where needed. I am uncertain whether any warning letters were issued to address the challenging behavior displayed by the individual.

Thank you,

Dinesh Divekar

Importance of a Robust Recruitment Policy

I have emphasized the importance of establishing a robust and comprehensive recruitment policy multiple times on CiteHR. Implementing such a policy is essential if you aim to attract the best employees for your organization.

Addressing Recruitment Failures

At first glance, this situation may seem like a clear example of a recruitment failure, as Dinesh has highlighted as one of several possible reasons for this outcome. It also seems evident that there is a lack of policies in place to address such scenarios. There is no apparent indication that the employee was cautioned about their inappropriate behavior or that any measures would be taken if there was no improvement.

Steps to Rectify the Situation

Since you did not adhere to an appropriate procedure before terminating the employee, it is advisable to rectify the issue before they act on their threat of legal action. Ensure the employee receives their salary and promptly establish new policies to prevent similar incidents in the future. Subsequently, revisit and revamp your recruitment and selection processes entirely. You can easily locate my previous posts on this topic.

Appointment Letter and Separation Policy

Any employee who joins the organization would have been given an appointment letter, which contains the policy of separation, either resignation or termination.

Training and Documentation

As you mentioned, training was given for 3 days. Is there any development from that training? Do you have any documented proof for the training? Moreover, most training will yield ROI only after a specific period.

Job Description and Reporting

Have you shared the written JD with the employee regarding his responsibilities and the periodical reports to be given, and to whom they have to be given? If yes, and if he has not reported anything, then what is the initial step that has been taken from your end?

Performance and Disciplinary Actions

As the employee's performance was not satisfactory, was there any domestic inquiry or any warning given to the employee?

As you have mentioned that the employee was a technical head, I am assuming he would not be considered a workman, and you would be spared from having to make rounds of the Labour Court. However, even for other employees, terminations should be handled delicately. All dues should have been cleared on the date of termination, and letters should have been issued to that effect as these issues can be expected. Yes, a former employee can choose not to come to your offices for exactly that reason—he is a former employee. No policy mandates this, but you cannot withhold his settlement due to his not visiting.

However, in cases like these, you must follow your contractual obligations to avoid any future repercussions. The employee would be considered a probationer and not a confirmed employee; separate procedures for termination would apply (if you have a separate policy for probationers/trainees). Usually, companies have a policy stating that the company can choose not to confirm an employee at the end of his probation period, automatically terminating his employment. However, you have chosen to terminate his employment in less than 30 days; he could argue that he did not get the opportunity to understand his work. So while processing his FnF, you should terminate him as per the terms of the contract. Invoke the termination with notice pay contract if there is one in his appointment letter, pay him his notice period sum, and let him go. This would be rightful for him as you must have promised the same in the appointment letter, and he could take legal action if you do not issue the same. Remember, this is a person and not some electrical equipment that you can have for a demo and then return if you don't like. For every day's work and whatever extra you have promised, you have to pay.

But you have mentioned that he wants payment only for those 20 days. Issue a check and his termination letter to him immediately, and issue the same to him only after obtaining a signed copy from him and an acknowledgment that no dues are pending to him.

The Problem with Hiring Practices

As mentioned by other seniors, the problem lies with the hiring itself. Numerous studies have shown that unstructured interviews are the worst indicators of an employee's performance, yet companies, in their infinite wisdom, choose to rely on them for leadership positions, with disastrous consequences. It would be better that for these positions, you conduct structured, competency-based interviews, and assessment centers would be even better. You can get to know the various techniques one can use in this article. It's not academic, but it does a good job of explaining all the techniques with proper background.

[Link: https://www.wired.com/2015/04/hire-like-google/]

Questions to Consider Regarding Termination

1. Your post raises a few questions to be answered by you:

a. Regarding the exit clause in the appointment order, what does the clause say?

b. How was the exit communicated, and who communicated it? How was the exit implemented in this case?

c. During induction, was he properly apprised of the HR policies of the company, including the exit policy?

d. After joining, was he clearly communicated with about what is expected of him and how?

e. In case of termination, the payment should be made along with the termination order; otherwise, the termination becomes illegal.

f. Was he given feedback for aligning with the organizational expectations and processes?

Post-Termination Procedures

2. Since you have terminated him from a senior position, why do you want him back in the office to complete his clearance formalities, do his full and final settlement, and send him the cheque for the amount payable?

Policy on Ex-Employees in India

3. In India, many companies have a policy of not allowing ex-employees in the company.

Warm regards,

Bharat Gera

HR Consultant

So many suggestions above. My question is, why do you or your company want to prolong this matter? Release the dues pending for 20 days and resolve this issue. According to industrial dispute regulations, all termination payments must be made on the same day as the termination; otherwise, the termination is considered void. While this employee held a technical head position, that alone does not exempt him from raising industrial disputes or seeking assistance from the labor office. Designation alone cannot prevent someone from being classified as a workman unless their roles, responsibilities, and authorities are clearly defined in writing.

I recommend that you pay him immediately, review the recruitment process as suggested by the mentors above, and enhance the documentation structure, including terms and conditions of employment, job descriptions, key result areas (KRAs), key performance indicators (KPIs), etc., ensuring everything is signed to prevent future issues. Additionally, strive to minimize such problems as much as possible, as addressing them promptly is crucial. These issues can tarnish the company's reputation and may make prospective employees think twice before joining.

Please let me know if you need further assistance.

Mr. Dinesh and Bharat have well pointed out the important aspects to consider when an organization is terminating an employee's services.

Another important point to note is that anyone can issue a legal notice, and no one has control over it. The key is to ensure compliance with the terms of the employment agreement and to practice fairness.

At the time of termination, the employee should also receive the settlement, which unfortunately your company did not provide.

Therefore, please prepare the full and final account settlement in accordance with the appointment terms, including any office properties in possession of the employee. Once the calculation of payable/recoverable amounts is done, kindly send them to him via speed-post along with a covering letter.

Thank you.

We appreciate your honesty in the amicable settlement of the sudden development of fake threats by a litigant. The employee in question is well-experienced.

Initial Recruitment Mistake

In the very beginning, the wrong step was taken by HR to recruit such a casual-minded individual and allow them to work. Typically, individuals with such experience should be assigned as Assistant Head of the team trainer. This way, you would have had the opportunity to analyze their behavior.

Employee's Lack of Commitment

In this case, as per the information provided, he doesn't seem to care about your company from the very start. He neglects the job and your job chart as well.

Settlement Process

The solution is to calculate the daily wage, multiply it by 20 days, add a month's salary, and send a letter stating that the full and final settlement has been completed. Also, note that you should not ask for any acknowledgment. His receipt of the settlement is acknowledgment enough.

Handling Fake Threats

Do not worry about his fake threats. If there are any written calls from the labor court and he appears, visualize that everything will be okay.

Settlement Without Personal Appearance

Now, addressing your query, do not ask him to come for the settlement in person. His presence is not necessary. Send the details via mail. There is no strict or harsh rule that requires the appearance of a former employee for settlement discussions. Please proceed accordingly.