Can We Terminate a Senior Employee for Poor Performance and Unproven Misconduct?

Dear All, I need judgment-based information on the termination of senior personnel on the grounds of not producing the expected results for which he/she was recruited.

Concerns about Unlawful Activities

There is no concrete evidence that the senior person is indulging in unlawful activities after office hours, even though he is the custodian of keys. There is no proof; only an oral complaint was received from security. Is this enough to terminate that staff?

I need your inputs, please.

Dear Vengat,

You have received a complaint from the security personnel regarding the alleged involvement of a senior manager in unlawful activities. However, this could also be a figment of imagination. Unless you have concrete evidence, you cannot proceed in this matter.

Why has suspicion been raised against the senior manager?

Does he contact third parties once everyone leaves the office? If yes, then find out who these people are and why they come. If possible, gather more information about these individuals.

Addressing the issue

To address the issue, contact the senior manager through the security agency and explore the possibility of placing him under surveillance. Perhaps he might offer better insights. However, given the sensitive nature of this matter, surveillance activities must be carried out discreetly.

Underperformance as a separate issue

If the senior manager is underperforming, that is a separate issue. As this involves a senior manager, discussions about underperformance should involve the top leadership of your company. However, you must have evidence of the underperformance.

Please note that you cannot use underperformance as an excuse, especially when investigating his prolonged stays in the office after hours. These are distinct issues and should not be unnecessarily linked.

Thanks,

Dinesh Divekar

Legal Implications of Employee Termination

The termination of senior or junior personnel on the grounds of not producing the expected results for which they were recruited is vague and illegal. I do not think the employee, recruited by the employer, has the job quantification. There is hardly any case citation that favored such illegal termination.

Any termination of an employee without instituting a domestic inquiry is considered bad and illegal in the eyes of the law. Termination without concrete evidence against misconduct is considered 'malignity' and vindictive action.

In my view, the person should take legal recourse for their illegal termination by the employer.

Dear Colleague, Well said by our colleagues in the above questions raised and thoughts given very clearly:

First Part:

Q: Judgment-based information on the termination of senior personnel on the grounds of not producing the expected results for which he/she was recruited.

A: Unless the organization has a concrete system to compare the results for which the talent was appointed vis-à-vis what is the given result by the talent in a measurable/quantifiable manner, scientifically measured/documented, the action is not possible. Such data has to be documented periodically, explaining what was expected and what was delivered, and written letters are to be given then and there. In this case, the talent has to be given the opportunity to provide an explanation then and there, and a closing order has to be passed. Over a period, once you have built in concrete evident proof and documented by giving the opportunity to the talent, then move on for a domestic enquiry. In the enquiry, give all opportunities as per the principle of natural justice to the talent to defend his or her side. Then, based on the final findings of the enquiry officer, further course of action is to be decided on merits (there should be no other ulterior motive).

Second Part:

Q: There is no concrete evidence that the senior person is indulging in unlawful activities after office hours as he is the custodian of keys. For which there is no proof, only an oral complaint was received from the security. Is this enough to terminate that staff?

A: In the absence of strong/concrete/authentic evidence like CCTV footage proving unlawful activities after office hours, strong action is not advisable. Here, the oral evidence of security may or may not be true, and there are chances of 50:50 here. However, we cannot rule out the complaint of the security, which should not be neglected just like that, but further probing is needed into the subject by collecting all related evidence in support of the complaint, such as mobile phone recordings, CCTV recordings, etc. Then, if we move for disciplinary action—show cause notice, domestic enquiry, findings, punishment—then it will be strong, and the action will be genuinely speaking. Otherwise, we cannot find the tip of the long rope in a confused bundle and proceed with the action needed.

Another dimension from a security angle is reported also, and in the absence of such strong or concrete evidence, until it is proved otherwise, the key custodian has to be changed to any other talent or person immediately without giving room for further misuse. This is from a practical perspective.

From the legal perspective, in both circumstances, there should be strong evidence and proofs and a proper disciplinary process to be followed before taking any action on the talent.

Thank you and God bless you,

Dr. P. SIVAKUMAR
DrSIVAGLOBALHR
Tamil Nadu