Facing Unfair Treatment During Probation? Share Your Experiences and Seek Advice Here

Relief for Forced Resignation During Probation

1) Many freshers claim that a 6-month to 1-year probation period was concluded with an exam that must be cleared with a score of 60 out of 100. If the exams are not cleared due to tough questions, a termination letter is issued. What relief and act are applicable for a case of less than 240 days?

2) During the probation period, if an experienced employee struggles with a demanding work culture, working 12-14 hours and on Saturdays due to an unforecasted workload, what relief and act are applicable? (Principles of natural justice)

3) Companies, after the probation period, claim they don't have enough cash to pay all employees and terminate those who are not willing to take a pay cut.

4) During the probation period, if the offer letter clearly mentions that the work type is remote, but the manager later asks the employee to come to the office, will the employee be fired if they request online-based training for the remaining probation period?

5) An employee didn't pass probation mainly because they were not provided with the necessary training for the work to be measured.

Employee Termination and Probation Periods

Basically, there is no provision under any labor law that can protect an employee from termination. The apprehensions outlined are facts about any medium-sized organization, not only restricted to IT and ITES. The manner in which exams are conducted cannot be questioned because the employer has to make the decision on whether to confirm or not confirm an employee serving a probation period. Certainly, when employers have their associations, the employees do not have any association until they join an establishment. Of course, once they join an organization, they can form a union and use collective bargaining tools to bring attention to the employer regarding their grievances. However, how many will follow one trade union leadership? A very small number of people follow a leader. Why? Because we, the white-collar gentlemen, do not believe in trade unions until we face an incident where the employer is unfair. This is known to the employers, and that is why they are troubling the employees by asking them to work for 10 to 14 hours from Monday to Saturday.

Campus Recruitment Practices

It is a fact that most employers who come to campus to hire students do not keep their word. They consider "campus recruitment" as a tool for advertisement rather than sourcing. As you mentioned, they may extend the probation or even terminate the employee. There are companies that take students and then keep their joining pending for many months. Knowing this from the alumni, why do institutions invite these companies repeatedly? One reason. The institutions are concerned not with the placement and career of their students but only with the number of students placed. I don't think any company would treat graduates from IIMs or IITs in such a manner, and I doubt that any IIM or IIT would invite such companies that hire and fire their students.

Court Verdicts on Probation

Now, regarding your query, I would say that there are plenty of court verdicts stating that a probationer can be discharged without reason and without notice. The concept of 240 days will not apply in such cases. It is true that an employee who has worked for 240 days during 12 months would require a notice, such as one month's notice or three months' notice, and a compensation of 15 days' salary. If the employer provides that notice, their actions will be protected by law. However, with a termination letter, what does the employee gain? Can they build a career with it? No. The alternative is resignation, not a forced resignation on paper but a voluntary separation.

Mutual Separation Agreements

I know of an establishment in the IT sector that collects an agreement on non-judicial stamp paper in the form of a "Mutual Separation Agreement." If there was no appointment or joining an establishment based on a mutual agreement on a stamp paper, how can that company request a separation agreement on a stamp paper? The employee, in turn, may sign it out of fear of negative remarks during background verification. Who will challenge such actions? Can the union address this issue? I doubt they can bring about industrial peace in the IT sector. Why? Due to the presence of employers' associations and background verification. It is highly regrettable that agencies hired for background checks act like detectives.

Working Hours and Labor Laws

Requiring an employee to work 14 hours every day from Monday to Saturday is legally unfair. The same considerations apply to them as well. Who will contact the Labor Officer? In many states, the appropriate authority to report such incidents is often the lowest-ranked officer in the Labor department. However, how many incidents are actually reported?

Pay Reduction and Labor Market

Pay reduction is another step often taken by companies. But will it be done with respect to an employable employee? Again, what is the remedy? Remedies are available under labor laws, but will anyone utilize them? In an inelastic labor market, no pay cuts will be made. However, in an elastic market, pay cuts may be enforced without consulting the employee.

Employee Transfers

An employer has the right to transfer an employee to any location due to business exigencies. Typically, this is mentioned in the offer letter itself. If the offer is to work from home, it does not mean the employee will continue to work from home until retirement. Just as an employee in Bangalore can be transferred from Bangalore to Chennai or Hyderabad, an employee can be required to work from the office. The transfer is from their "house" to the office. Therefore, this demand is not sustainable, and refusal to work from the office can be considered misconduct, leading to potential disciplinary action by the employer. Naturally, the employee should be given the opportunity to be heard. If, for example, the employee is on probation, termination can occur even without providing an opportunity, as long as the termination does not stigmatize the employee.

Unfair Work Hours and Reporting

Asking an employee to work for 14 hours every day from Monday to Saturday is legally unfair. The above-mentioned conditions will also apply to them. Who will contact the Labour Officer? In many states, it is the lowest-ranking person in the Labour department who is the appropriate authority to whom such incidents can be reported. However, the question arises, how many incidents actually get reported? Many deaths have been reported due to an unfair work culture.

Work Pressure and Its Consequences

Did work pressure drive a techie to take his own life? On January 9, 2023, at 11:34 AM IST, a 48-year-old techie jumped to his death from the seventh floor of his office building on the Thoraipakkam-Pallavaram radial road on Saturday night, unable to cope with work pressure, as stated by the police. The man, Shyam Sundar of Porur, had been employed as a manager at the software firm for the past year. The police mentioned that on Saturday night, he suddenly left the office, climbed up to the seventh floor, and jumped.

Termination and Labor Laws in India

Basically, there is no provision under any labor law that can protect an employee from termination. The first note itself is a null and void statement.

Which Laws in India Regulate the Termination of Employment?

The Industrial Disputes Act, 1947 (ID Act) and the corresponding state-specific rules provide for employment termination (retrenchment).

A "probationer" is one who is provisionally employed to fill a vacancy in a permanent post and has not completed three months of service in that post unless the probationary period is extended. If a permanent workman is employed as a probationer in a new post, he may, at any time during the probationary period not exceeding three months, be reverted to his old permanent post unless the probationary period is extended. - INDUSTRIAL EMPLOYMENT (STANDING ORDERS) CENTRAL RULES, 1946 Notification No. L.R. 11 (37), dated the 18th of December, 1946. Probation beyond 9 months is subject to retrenchment guidelines.

GIG Workers and Economic Challenges

GIG workers are purely created in the Indian workers' population, like Bakras maintained for the big feast. Here, it is going to be the recession and economic slowdown event to sacrifice GIG worker's contracts.

We cannot imagine that our son/daughter in future generations is going to be exploited as GIG workers from the Permanent worker tag, especially in India. There are no surveys conducted among employees like employers in surveys for GIG worker's rise and their future life at stake. Recent Moonlighting-related terminations are also diminished to favor the rise of GIG workers in the name of ease of doing business.

Future of the Gig Workforce

The gig workforce is expected to expand to 2.35 crore by 2029-30, according to a NITI Aayog report.

The End of the Permanent Job Era

At the end of this permanent job era, employees are left with the fate of facing layoffs with existing two choices: 1) Resign as per corporate strategy and face the pain of being thrown to the streets until a new job is obtained, or 2) Resist layoff and face it as per the laws of the land to get your job back through the judicial process with the help of the union. #REJECTLABOURCODE2020 and NEEM schemes forced on the Indian employees community.

By "Basically, there is no provision under any labor law which can protect an employee from termination," what I meant was that the ID Act also provides many loopholes to terminate an employee, even though retrenchment is taken out of its purview. Termination simpliciter by paying notice pay, etc., is one of them. If the termination is based on performance evaluation, nobody can challenge it. It is possible to frame any charges against an employee and then force them to sign a mutual separation agreement.

I recently had a discussion about such an initiative by the management of an IT company where an employee, who had been working there for more than four years, almost five years, was asked to leave after signing a mutual separation agreement on a non-judicial stamp paper. I advised against signing it because there was no such agreement when they were hired. However, with the employers' association being very strong and trade unions being very weak, the employee would be forced to do whatever the management says.

Regarding the probation period

It is true that the standing orders/appointment orders will govern it, but if the probation is extended, how can you question it? When confirmation is purely a managerial prerogative, the complaint would not be maintainable. Per se, termination is easy; even the ID Act cannot protect anybody.

The role of trade unions

Proper interference by the Trade Union in such matters could improve the industrial relations scenario. But with a section of techies who consider unions as something meant for low-paid labor, will you be able to win it?

By "Basically, there is no provision under any labor law which can protect an employee from termination," what I meant was that the ID Act also gives a lot of loopholes to terminate an employee, though retrenchment is taken out of its purview. Termination simpliciter by paying notice pay, etc., is one of them. True. But once the employee approaches the labor department and court, the onus of proving beyond reasonable doubt for performance issues or attitude issues goes to the employer. Termination simpliciter can be applied, but once contested, it will go for a toss.

Due to the lack of judicial reforms, a civil case will take 5-10 years, which is the real issue. Employee livelihood for 5-10 years to support family makes the employee accept all employer's threats to accept forced resignation.

Irrespective of this situation, IT people in double digits are getting judgments for reinstatement with back wages one by one.

There are 5 IT trade unions in Chennai and getting stronger due to forced resignation. 1 out of 10,000 are fighting their cases. 10 out of 100,000 are fighting their cases. Soon, the numbers will increase.

Few cases in the last 5 years might give some insights:

1) Why Veteran Raj Mehta resigned after this NDLF case, and why many big shots are careful over words in media since 2018 can be understood? Why is the NDLF IT wing taking strong exception to the statement by Cognizant president Mr. Raj Mehta regarding employees, layoffs, terminations, and job losses?

2) NITES files a complaint against Infosys over employment clause for staffers.

3) Who is Elavarasan Raja? Why has Cognizant firing him become a huge issue?

4) Why is the media silent? It is surprising that all the reporters chose not to cover this news. What kind of pressure and bribes did the company and government use to silence the media?

The central and state governments are watching even as five suicides have happened among IT employees in the last 60 days. There is an IT minister in the central government and in the state governments. What do they do? Do they get reports about such tragic incidents happening in the sectors they are monitoring and regulating? If not, why? If yes, what action have they taken?

IT employees have the right to know!