Does a probationer at the end of expiry of the probationary period automatically acquire the status of a confirmed employee?

Does a probationer at the end of the expiry of the probationary period automatically acquire the status of a confirmed employee?

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Hello,

At the end of the probationary period, does a probationer automatically become a confirmed employee?

Dear Mr. Kumar,

As you know very well, the probation phase in an employee's career is strictly as per the terms of the contract of employment only on occasions like new hiring and promotion to a higher cadre within the organization. It is not a statutorily prescribed condition of employment but for the guidelines provided in the Model Standing Orders under the IE(SO) Act, 1946 as of now.

Since probation is a phase of orientation for the new appointee to the organization and a test of his suitability for the job position offered, it cannot be indefinitely long. Hence, the provision for extension of the probation period in case of a shortfall in the employee's expected overall performance and a formal declaration by the employer in this regard.

Therefore, the declaration of satisfactory completion of probation followed by an order of confirmation is a matter depending on the subjective consideration of the employer. No probationer will acquire the status of a confirmed employee automatically by the efflux of time. Of course, it is possible if there is a provision in the contract of employment for deemed confirmation after the lapse of a stipulated period of time without formal orders either way by the employer.

When the employer simply keeps silent on the matter indefinitely, what would be the remedy available to such an unfortunate employee kept as a probationer for years? The employee, if he is a workman, has to invoke the provision of sec.25-T of the IDA, 1947 against the employer for committing the unfair labor practice enumerated at sl. no. 10 of Part I of the fifth Schedule of the Act.

Dear Sir,

Thank you for your timely and erudite reply.

Dear Member,

The absence of a formal confirmation letter after the completion of the six-month probation period seems to imply an extension of probation, as mentioned in the earlier response by esteemed member Mr. Umakanthan, without any specific conditions in the appointment letter. An employer cannot keep this pending after nine months of employment for a probationer. According to the standing orders, in the absence of any formal confirmation, the employee is deemed to be a permanent employee, as they have already completed 240 working days on the company's payroll.

Anil Kumar

This calls for clarification, as there is a popular misconception that on completion of 240 working days in the payroll of the company, an employee becomes a permanent employee. All that the law mandates is that on completion of 240 days of service, an employee cannot be terminated except as a result of disciplinary action, superannuation, voluntary retirement, discharge based on medical grounds, or as per service conditions; otherwise, it will be retrenchment for which the statutory conditions have to be met. The position of the law is that the status of the employee (daily rated/temporary/casual/regular, etc.) continues to be the same after 240 days of service.

No, the manager of the employee shall share the required inputs with the management or HR, recommending the confirmation of the employee. Many organizations use a performance review procedure - including self, manager, and HR reviews of the employee - to decide whether to confirm, extend the probation, or part ways with the employee.

Dear Kumar,

It is not known whether the probationer referred to in your query is a workman or a non-workman.

I am a bit surprised by Mr. Umakanhan's observation that probation is not statutorily prescribed conditions and the provision in the Model Standing Orders are mere guidelines. I beg to differ. If the IESOs Act applies, the provision of a 3-month probation under the MSO has statutory force for the workman category.

For non-workmen, the conditions concerning the period, extension, and confirmation of the probation period as contained in the appointment letter will prevail.

Regards,

Vinayak Nagarkar
HR and Employee Relations Consultant

Dear Elite Citehr leaders,

Greetings.

Thank you for your wonderful reply. Your feedback is great and cherishing the knowledge in this elite forum.