Navigating Employee Termination: Can We Let Go of a New Hire for Poor Performance and Suspected Drug Use?

Hello All,

I am working as an HR Manager in a newly startup B.P.O. There is an employee who has joined us recently. This employee is not performing or learning. It seems that he is using drugs as well (doubtful). There is no scope of improvement as we already had a discussion with him.

Can you please suggest if we can terminate the same employee immediately or not? If yes, then what legal actions can he take?

Record the counseling on a properly authenticated document with his signature. The precise nature of issues with him needs to be documented. Is he on probation? What are the terms of exit given in the offer letter? If there is no scope for improvement, give him notice as per the offer letter.

Hi
If he is on probation you can terminate his service subject to the terms and conditions of the offer letter issued to him
Regards
P.S.Lakshmanan
S. G. Management Services
(PAN INDIA Consultant – Labour Law Compliance,
PF, ESI, P Tax, Benefit Management &
POSH COMPLIANCE) - KOLKATA

Termination of an Employee on Probation

1. The employee is supposedly on probation; still, if you are terminating the services of the employee, it has to be justified and legal. You will have to create grounds for that.

2. Twenty days are not enough.

3. If you are suspecting substance abuse, then get him medically examined. If the medical reports are positive for substance abuse, give him a letter of termination on the grounds of substance abuse.

4. Regarding performance, he should be counseled at least twice in the presence of witnesses at reasonable intervals, and the matter should be recorded in writing with his signature on a proper format.

5. If he does not improve, give him marching orders in writing on the grounds of performance.

Warm Regards,

Bharat Gera
HR Consultant
[Phone Number Removed For Privacy-Reasons]

The termination on grounds of performance is not sound within a short period of working. You can terminate with notice or pay the notice amount to release the employee immediately if you are serious about removing them. It would be advisable to counsel the employee to resign so that they can benefit from resigning instead of facing termination.

If the employee is consuming drugs, you can initiate action after completing the medical examination. If it is performance-based, I believe that 20 days is too early. The employee, whoever he or she may be, should understand, adopt the culture, adjust, and deliver. It's not a machine that works by switching on. You should also understand that the employee might have left his earlier job to join you, and if you suddenly terminate him, it will be difficult for him to survive, especially if he is married and has kids. Please understand the situation.

Before finding fault with the employee, I hold the interview panel responsible because they failed to evaluate the competencies of the candidate. I believe that this should be strengthened. However, I suggest giving him some time to breathe or time to look for alternatives.

Thanks and regards,
kamesh333

You can terminate a probationer if there is a clause to that effect in the contract of appointment, i.e., discharge simpliciter.

Do you have a record of his performance falling below expectations? What is his designation and salary?

Termination based on designation

If his designation is within the Manager cadre, you can terminate his employment immediately based on discussions of non-performance. What is the termination clause as per our appointment letter?

Termination due to drug use

If he is using drugs while on duty, you can proceed with termination immediately; if not, you cannot take action against him for this reason.

Counseling and performance review

You need to conduct counseling sessions with the Head of Department to identify the expected level of performance and the existing gap. Once he realizes this, he may voluntarily resign.

I have noticed that, due to being a startup company, you do not have an HR manual or a proper termination clause in the manual and appointment letter.

Evaluating an employee's performance in 20 days cannot give a correct picture of his/her abilities. If it is reported that he/she is a substance abuser, the same should be proven, or he/she should be caught red-handed.

Usually, a person on probation can be terminated without notice on grounds of moral turpitude, i.e., theft, substance abuse, etc. However, it would be better to speak to him/her and get him/her to submit his/her resignation with immediate effect to safeguard the company's interests.