Facing Termination Without Performance Reviews: Can You Be Forced to Resign?

Termination of Services in the 8th Month (Post-Probation Period of 6 Months)

Can anyone be asked to resign on the grounds of performance? What if they refuse to resign, and can they be terminated instantly? Specifically, when there was no performance review evidence by HR, nor the Head of Department, and neither was there any meeting or discussion conducted with the employee. No documentation was provided after multiple attempts by the employee to justify the termination.

Legal Approach

Can this be approached legally?

Will appreciate the insights, everyone!

Dear Colleague,

In the instant case, the probationer (6 months' time) was asked to resign and then terminated at the 8th month abruptly. Even for a probationer to be terminated, there should be proper performance reviews conducted, gaps documented then and there, copies given to the talent for reference, and opportunities given to the probationer to improve their performance. Everything should be done in black and white, in written form. Unless the organization has otherwise specified in the service rules, the probationer remains a probationer unless given a written letter confirming their services (provided there is no such long time period of confirmation). In this case, there is a lapse of 2 months only, and it seems no order of extension of probation or confirmation was given. Hence, for the argument's purpose, we may treat that they are only a probationer.

The organization should have a system in place to compare the results for which the probationer was appointed vis-à-vis what is the given result by the talent in a measurable/quantifiable, very scientifically measured/documented manner. 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 to the probationer.

In the instant case, if these elements are absent and the talent was forced to resign or got terminated abruptly, then if they are within the purview of "Workman" under the Industrial Disputes Act 1947, they can seek legal remedy treating this as non-employment. Then the legal course will decide on merits. This is a case where even for a probationer, there should be a strong performance review system/documentation and communication in writing to the talents. This is very fundamental even for probationer-type engagements.

In case the organization has complied with the notice pay clause applicable for probationers and provided performance gaps in writing then and there, then the legal remedy is remote to the talent.

Thank you and God bless.
Dr. P. SIVAKUMAR
DrSIVAGLOBALHR
Tamil Nadu