• Termination during probation period

Employer terminated 3 year experienced professional with in a months time after joining. Reason provided was not meeting the expected performance and same clause was also mentioned in offer letter.
Consider following points
1. Employee didn't get a chance (tasks were not assigned) to perform any of the activities
2. Employee was still with in the dead line of all activities
3. There was no prior written communication about bad performance
4. Employer is not given any justification on what grounds he assessed the performance and reach the conclusion like bad performance
5. The bad remarks in termination letter may affect the future opportunity of the employee

Any options to fight against the employer to remove the bad performance remark in termination letter or get a justification for the same ?
Asked 1 year ago in Labour from Bangalore, Karnataka
1) what ate the terms of appointment letter ?

2) employer is entitled to terminate employee during probation period if work of employee is not to the satisfaction of the employer 

3) in your email to the company you can make. Representation that no work was assigned to you and no communication was addressed to you regarding non satisfactory performance 

4) request employer to remove bad performance remark on termination letter as it would adversely affect your future career prospects 
Ajay Sethi
Advocate, Mumbai
23284 Answers
1219 Consultations
5.0 on 5.0
Hi, you have to file a complaint before the Labour commissioner for conciliation for wrong full dismissal.

2. If the Conciliation before the labour commissioner is failed then you have to file petition before the labour court for wrongfull termination.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Since there was no task assigned to you to perform, the employer cannot terminate you unilaterally.
2. The employer should have served you with Show Cause Notice for non-performance and an opportunity should have been given to you to explain your stand in reply to the Show Cause Notice.
3. Contact the Labour Commissioner of the concerned jurisdiction and bring the matter to his notice and request for his intervention in removing either bad remarks in the termination letter or get a written justification for the act by the employer.
Shashidhar S. Sastry
Advocate, Bangalore
1242 Answers
59 Consultations
5.0 on 5.0
After having been issued with the termination order, if the rasons stated in it are not satisfactory then you may issue a legal notice stating that 
You were not given with any assingment to prove your performance;
That you have gven your best services despite not instructed with any particular task;
That there was not a single icidence in the past to prove the said adverse performance
No justified reason for having assessed the way it has been told now;
To expunge the adverse remarks mentioned in th termination leter which may affect future employment;

You will get a reply and if the reply is not satisfactory you may plan to initiate legal process against the employer. 
T Kalaiselvan
Advocate, Vellore
14056 Answers
127 Consultations
5.0 on 5.0
Can the employer terminate you on or before the end of the probationary period?
Read the appointment letter carefully and check the 
Provisions stated in the letter of termination in the probation period. “During the probationary period, either party may at any time terminate the contract of service without notice” many employers simply make use of the clause to terminate the service of a probationer whom they find to be not to their liking.

In probation period company can terminate without assigning any reason, but for that appointment letter must indicating that clause clearly.

The purpose of placing a person on probation is to try him during the period of probation to assess his suitability for the job concerned. It is well settled that an order of discharge or termination simpliciter is not an order of punishment and therefore, there is no question of giving hearing before termination of his service. However, if a employee who is on probation or holding an appointment on temporary basis is removed form services with stigma because of some specific charge, then the plea that his service was temporary or his appointment was on probation is not sustainable. In such a case, it is necessary for the employer to hold an enquiry affording him an opportunity to show that the charge levelled against him in either not proved or is without any basis. The employer's right to terminate the service of a probationer, during and at the end of the probationary period, without anything more was recognised. It will be totally meaningless to refer to a person's employment on probation if the management has no right to terminate the service during probation and to insist that services of such probationer could be terminated only on the ground of proved misconduct.

if a person is an employee on probation, it is inherent power of the employer to terminate during or at the end of probationary period. Of course, such termination or discharge should be termination or discharge simpliciter and it should not carry any stigma or disability for the concerned workman or employee to secure employment elsewhere. 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1) the decision of company had been upheld on appeal 

2) company can terminate yourvemployment during probation period if your work was found to be unsatisfactory 

3) you can go to court as no reasoning was given by the company for your termination from employment but it may take time for your case to be disposed of 

4) results of litigation cannot be predicted 
Ajay Sethi
Advocate, Mumbai
23284 Answers
1219 Consultations
5.0 on 5.0
Q1=> On what ground company assessed the performance not written any where and no justification provided. Without any justification how an organization can comment about an experienced professionals capability ?
You can issue a legal notice asking them to furnish the correct reason or the details of your bad performance or non-performance during the period of probation/consideration.



Q2=> How we can approach the labor commissioner and what will be the probable outcome & risk?
First get the reply to your notice or wait for the stipulated time for reply notice and then file an application before labor commissioner seeking his intervention for the relief sought.


Q3=> If we go in a legal way what will be the procedure and outcome & risk ?
The outcome may be anything either in your favor or otherwise, but you should not give up for this.
T Kalaiselvan
Advocate, Vellore
14056 Answers
127 Consultations
5.0 on 5.0
Please do understand that employer has inherent power  to terminate during or at the end of probationary period.They have their om assessment method, 

Outcome 
If you filed a complaint before labour commisioner, If he is convinced in your arguments  then the bad remarks in termination letter may be eliminated 
Risk,
Lost the time and money.Lot of other companies are in India choose another one









Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
 'Failure to meet expectations' is an elastic expression which confers limitless discretion on the employer/assessing authority, but this discretion is to be exercised in a judicious and not capricious manner. To put it plainly, the standards of assessment have to be laid down in the report prepared by the assessing authority. An assessment report which does not specify the standards of assessment followed by the assessing authority can be the foundation of a declaratory challenge in the court, apart from a claim for damages.

Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
Before going to court issue a lawyer's notice to your ex-employer.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
Hi, you have to file a complaint before the labour commissioner for the conciliation and if the conciliation is failed then go for labour court.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0

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