Hi Everyone,
I am working in a software company as an HR Executive. Recently, we have encountered an issue with an employee who is not performing well, and his attitude is poor. Despite several warnings from management, he has shown no improvement. He has been with us for the last 4 years, and his wife is a public prosecutor. The management has ultimately decided to terminate his employment without facing any legal issues.
Can anyone suggest whether termination is the best option, or would relieving him be more appropriate? Kindly provide your input on this matter.
Regards,
Geetha Nirmalkar
From India, Visakhapatnam
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1I am working in a software company as an HR Executive. Recently, we have encountered an issue with an employee who is not performing well, and his attitude is poor. Despite several warnings from management, he has shown no improvement. He has been with us for the last 4 years, and his wife is a public prosecutor. The management has ultimately decided to terminate his employment without facing any legal issues.
Can anyone suggest whether termination is the best option, or would relieving him be more appropriate? Kindly provide your input on this matter.
Regards,
Geetha Nirmalkar
From India, Visakhapatnam
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Dear Geetha,
A letter of appointment is a contract between the employer and the employee. If either party wishes to terminate the contract, it cannot be continued by the other party. However, the terms and conditions of the contract for separation must be adhered to.
What is the notice period for the employee in question? Please issue a letter discontinuing his services. When you do this, either pay him as per the notice period or let him continue until he completes the notice period.
Separation due to poor performance is quite common. When you issued your earlier notices, you could have included a clause on discontinuation of services at that time.
By the way, why are you getting bogged down because of the profession of the employee's spouse? The spouse's profession and the employee's performance are two unrelated matters.
Thanks,
Dinesh Divekar
Bangalore - 560092
From India, Bangalore
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A letter of appointment is a contract between the employer and the employee. If either party wishes to terminate the contract, it cannot be continued by the other party. However, the terms and conditions of the contract for separation must be adhered to.
What is the notice period for the employee in question? Please issue a letter discontinuing his services. When you do this, either pay him as per the notice period or let him continue until he completes the notice period.
Separation due to poor performance is quite common. When you issued your earlier notices, you could have included a clause on discontinuation of services at that time.
By the way, why are you getting bogged down because of the profession of the employee's spouse? The spouse's profession and the employee's performance are two unrelated matters.
Thanks,
Dinesh Divekar
Bangalore - 560092
From India, Bangalore
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Dear Friend,
It appears from your statement that he is a regular employee. If his services are confirmed and governed by service rules, standing orders of the company, or appointment order, first, you are supposed to issue him a charge sheet, narrating his poor performance or bad attitude, which constitutes misconduct under service rules/standing orders of the company. After receiving his reply to the charge sheet, if the management is not satisfied with his response, then you need to conduct an inquiry by appointing an inquiry officer from outside to avoid legal complications. If the charges are proven in an inquiry report, then you need to send him a show-cause notice for proposed dismissal or discharge along with the inquiry report. Only after receiving his remarks can you terminate his services for the proven act of misconduct.
On the other hand, if you simply terminate the service of any confirmed employee by invoking the relevant clause in the appointment order, giving one month's notice, or making payment in lieu of notice, sometimes it does not prove trustworthy, as you are leveling severe allegations against this employee, i.e., poor performance/bad attitude, which is supposed to be proven in an inquiry as per the principles of natural justice.
Regards.
From India, Hyderabad
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It appears from your statement that he is a regular employee. If his services are confirmed and governed by service rules, standing orders of the company, or appointment order, first, you are supposed to issue him a charge sheet, narrating his poor performance or bad attitude, which constitutes misconduct under service rules/standing orders of the company. After receiving his reply to the charge sheet, if the management is not satisfied with his response, then you need to conduct an inquiry by appointing an inquiry officer from outside to avoid legal complications. If the charges are proven in an inquiry report, then you need to send him a show-cause notice for proposed dismissal or discharge along with the inquiry report. Only after receiving his remarks can you terminate his services for the proven act of misconduct.
On the other hand, if you simply terminate the service of any confirmed employee by invoking the relevant clause in the appointment order, giving one month's notice, or making payment in lieu of notice, sometimes it does not prove trustworthy, as you are leveling severe allegations against this employee, i.e., poor performance/bad attitude, which is supposed to be proven in an inquiry as per the principles of natural justice.
Regards.
From India, Hyderabad
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Dear Ms. Geetha,
I would suggest keeping it simple.
1. Issue a show cause notice from the company without the help of a lawyer. Choose the correct words; it should not resemble a legal notice. Ask for clarification of his behavior in this communication.
2. In response, he will clarify the points in writing.
3. Keep a record of this correspondence.
4. As you mentioned, it is his habit, and he is likely to repeat it. In that case, issue two warning letters with a gap of 15 days to 1 month.
5. Following these steps, you can terminate him, either with the condition to pay or to serve the notice period.
Remember, we are HR professionals, not lawyers, so handle the situation with a balanced approach.
Thanks & Regards
From India, Delhi
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I would suggest keeping it simple.
1. Issue a show cause notice from the company without the help of a lawyer. Choose the correct words; it should not resemble a legal notice. Ask for clarification of his behavior in this communication.
2. In response, he will clarify the points in writing.
3. Keep a record of this correspondence.
4. As you mentioned, it is his habit, and he is likely to repeat it. In that case, issue two warning letters with a gap of 15 days to 1 month.
5. Following these steps, you can terminate him, either with the condition to pay or to serve the notice period.
Remember, we are HR professionals, not lawyers, so handle the situation with a balanced approach.
Thanks & Regards
From India, Delhi
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Hi Geetha,
All these processes are hectic and lengthy. Please go through his appointment order to determine the notice period. Based on that, be prepared with a cheque payment (one or two months). Ask his HODs to organize a confidential meeting with him, where they can discuss his inabilities and poor performance record. Ask him to submit his resignation without allowing him to enquire about his contacts, and obtain a supporting letter from his immediate superiors/HODs to support this decision. This will ensure the management's safety and prevent any involvement from the prosecution or labor department in the future. If possible, transfer him to another branch of the company so that he may resign voluntarily.
If the employee does not accept this, you will need to issue a show-cause notice, and the process will be the same as suggested by the members of this forum.
Regards
From India, Hyderabad
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All these processes are hectic and lengthy. Please go through his appointment order to determine the notice period. Based on that, be prepared with a cheque payment (one or two months). Ask his HODs to organize a confidential meeting with him, where they can discuss his inabilities and poor performance record. Ask him to submit his resignation without allowing him to enquire about his contacts, and obtain a supporting letter from his immediate superiors/HODs to support this decision. This will ensure the management's safety and prevent any involvement from the prosecution or labor department in the future. If possible, transfer him to another branch of the company so that he may resign voluntarily.
If the employee does not accept this, you will need to issue a show-cause notice, and the process will be the same as suggested by the members of this forum.
Regards
From India, Hyderabad
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Dear Ms. Geetha,
I agree with Sh. N. V. Rao and Ms. Shweta Verma that one's services can only be terminated in accordance with the terms & conditions of the appointment or as per the conditions envisaged in the contract entered into with the employer. Primarily, one should always keep in mind that no termination is considered legal & valid unless the "Principles of natural justice" are followed. It hardly matters the number of years he is serving with you or whether his wife is a public prosecutor. If he is not a productive worker and not listening to the management, he needs to be terminated, but proper procedure has to be gone through. I do not consider it proper when you say that "management decided to relieve him without any legal issues". You are not the authority to decide which is the legal issue or not. Now you need to watch his reaction to your decision.
I agree with another suggestion given by Sh. N. V. Subba Rao, which is "persuasion" to submit his resignation even if you have to pay him some extra amount, which would have saved the situation. If he was not agreeable to your proposal, then of course you need to take the long course of charging him.
BS Kalsi
N. V. SUBBA RAO
From India, Mumbai
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I agree with Sh. N. V. Rao and Ms. Shweta Verma that one's services can only be terminated in accordance with the terms & conditions of the appointment or as per the conditions envisaged in the contract entered into with the employer. Primarily, one should always keep in mind that no termination is considered legal & valid unless the "Principles of natural justice" are followed. It hardly matters the number of years he is serving with you or whether his wife is a public prosecutor. If he is not a productive worker and not listening to the management, he needs to be terminated, but proper procedure has to be gone through. I do not consider it proper when you say that "management decided to relieve him without any legal issues". You are not the authority to decide which is the legal issue or not. Now you need to watch his reaction to your decision.
I agree with another suggestion given by Sh. N. V. Subba Rao, which is "persuasion" to submit his resignation even if you have to pay him some extra amount, which would have saved the situation. If he was not agreeable to your proposal, then of course you need to take the long course of charging him.
BS Kalsi
N. V. SUBBA RAO
From India, Mumbai
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Dear Madam,
What Mr. Rao suggests is always correct. Without giving any notice, charge sheet, or holding an enquiry, you cannot terminate an employee who is confirmed. It comes under victimization and goes against the principles of natural justice.
Thanks & Regards,
V R Rao Pulipaka
From India, Chennai
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What Mr. Rao suggests is always correct. Without giving any notice, charge sheet, or holding an enquiry, you cannot terminate an employee who is confirmed. It comes under victimization and goes against the principles of natural justice.
Thanks & Regards,
V R Rao Pulipaka
From India, Chennai
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If you are proposing a legal action by fully complying with laws and regulations, it will be a lengthy process. In such a situation, you may act as per the suggestion given by Mr. Rao. Effect a "forced resignation" instead of termination.
Thanks,
R. K. Nair
From India, Aizawl
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Thanks,
R. K. Nair
From India, Aizawl
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Dear Geetha ji, I have not understood your below given quote. Can you please explain the term termination and the term reliving?
From India, Mumbai
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From India, Mumbai
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Dear Friends,
This is a fitting case on how to terminate an employee with notice or by persuasion without causing harm to the organization. This is one of the best scenarios to address in terms of performance or attitude, yet relieving the services is crucial for the organization. As Shri Rao pointed out, in both cases, the organization has to make a decision, particularly by the appropriate authorities.
Upon hearing the issue, the employer certainly noticed a bad attitude that is crucial to eliminate from the organization. This bad attitude leads to poor performance, which might have been observed through monitoring work efficiency, thereby prompting the authorities to identify the bad attitude. It is likely that a harsh reality existed, as his performance deteriorated due to his bad attitude.
Labeling the employee prima facie, it becomes evident that the individual's bad attitude is the main reason and threat to his continuation in the organization. Informing him about his recently developed bad attitude, the appropriate authorities should issue a caution notice clearly stating that the reason for continuing employment/service will become a cause, and the organization will not suffer or be harmed due to his attitude, which would impact all other staff/employees. Since no organization can bear the suffering of a single person, this case clearly justifies removing a bad employee; poor performance will subsequently lead to his termination from service. An employee's conduct forms the primary basis of employment, with the rest following suit. The organization must provide a service certificate reflecting good conduct as being seen as unemployable for future employment, as highlighted by Shri Dinesh Divekar; spousal employment and the employee's conduct are two distinct categories that should not be merged.
Best of luck...
From India, Arcot
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This is a fitting case on how to terminate an employee with notice or by persuasion without causing harm to the organization. This is one of the best scenarios to address in terms of performance or attitude, yet relieving the services is crucial for the organization. As Shri Rao pointed out, in both cases, the organization has to make a decision, particularly by the appropriate authorities.
Upon hearing the issue, the employer certainly noticed a bad attitude that is crucial to eliminate from the organization. This bad attitude leads to poor performance, which might have been observed through monitoring work efficiency, thereby prompting the authorities to identify the bad attitude. It is likely that a harsh reality existed, as his performance deteriorated due to his bad attitude.
Labeling the employee prima facie, it becomes evident that the individual's bad attitude is the main reason and threat to his continuation in the organization. Informing him about his recently developed bad attitude, the appropriate authorities should issue a caution notice clearly stating that the reason for continuing employment/service will become a cause, and the organization will not suffer or be harmed due to his attitude, which would impact all other staff/employees. Since no organization can bear the suffering of a single person, this case clearly justifies removing a bad employee; poor performance will subsequently lead to his termination from service. An employee's conduct forms the primary basis of employment, with the rest following suit. The organization must provide a service certificate reflecting good conduct as being seen as unemployable for future employment, as highlighted by Shri Dinesh Divekar; spousal employment and the employee's conduct are two distinct categories that should not be merged.
Best of luck...
From India, Arcot
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Dear Geetha,
Before taking any action, you must firstly decide whether he is a workman under the ID Act of 1947. If he is a workman, even if you terminate him simpliciter, he will be protected by the ID Act, and he cannot be retrenched without following the last come first go procedure. Then even before making any appointment to his post, you have to offer him an appointment. Thus, the only recourse will be to collate evidence against him, hold disciplinary proceedings, and then terminate him. The charges should be very serious. The era of hire and fire is gone. If he is not a workman, then there is no problem. Go by the contract and terminate.
Thanks
From India, New Delhi
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Before taking any action, you must firstly decide whether he is a workman under the ID Act of 1947. If he is a workman, even if you terminate him simpliciter, he will be protected by the ID Act, and he cannot be retrenched without following the last come first go procedure. Then even before making any appointment to his post, you have to offer him an appointment. Thus, the only recourse will be to collate evidence against him, hold disciplinary proceedings, and then terminate him. The charges should be very serious. The era of hire and fire is gone. If he is not a workman, then there is no problem. Go by the contract and terminate.
Thanks
From India, New Delhi
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Dear Geeta,
Simply do one thing - issue him a warning letter containing the following:
Mr. XYZ Dept. Subject: Warning Letter
Regarding the above subject, Mr. XYZ,
We have given you verbal warnings many times to improve your performance and behavior, but to date, there has been no improvement or change in your behavior. This clearly indicates that you are not taking your seniors or the job seriously. Why should the company not take serious action against you?
Kindly reply in writing within 48 hours of receiving this letter. If you do not respond within the specified time, we will consider that you have accepted the contents of this letter. It is your own responsibility to take action.
Authorized Signatory ZYX Company
If he does not respond, call him to a meeting and ask for his resignation. If he does not agree, issue a termination letter and provide the settlement check as committed in the appointment letter. Let him go.
Thank you.
From India, Mumbai
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Simply do one thing - issue him a warning letter containing the following:
Mr. XYZ Dept. Subject: Warning Letter
Regarding the above subject, Mr. XYZ,
We have given you verbal warnings many times to improve your performance and behavior, but to date, there has been no improvement or change in your behavior. This clearly indicates that you are not taking your seniors or the job seriously. Why should the company not take serious action against you?
Kindly reply in writing within 48 hours of receiving this letter. If you do not respond within the specified time, we will consider that you have accepted the contents of this letter. It is your own responsibility to take action.
Authorized Signatory ZYX Company
If he does not respond, call him to a meeting and ask for his resignation. If he does not agree, issue a termination letter and provide the settlement check as committed in the appointment letter. Let him go.
Thank you.
From India, Mumbai
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Dear all,
Proceedings of a more serious nature will be required to be initiated by giving show cause notices of a precise nature, if the delinquent is a workman. Otherwise, if he is governed simply by the Contract Act, go by contractual terms simply to terminate his services and do not give the color of punishment.
From India, New Delhi
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Proceedings of a more serious nature will be required to be initiated by giving show cause notices of a precise nature, if the delinquent is a workman. Otherwise, if he is governed simply by the Contract Act, go by contractual terms simply to terminate his services and do not give the color of punishment.
From India, New Delhi
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Dear Geeta,
You must have understood by now. Mr. Rao has explained brilliantly. Further to clear things, if the employer (Reporting Boss / HOD / HR) discusses with the employee about his performance and asks him to resign, stating that "we will give you full support in your exit, including your proper FnF, experience letter & Reference check if he gets another job."
There can be only 3 scenarios:
1. He understands the situation, accepts to resign, serves the notice period, and looks for a new job alternatively. (If possible, record audio-visual of the talks).
2. He refuses to listen to the first situation. Then comes the warning letter kept aside (prepared well in advance) and shown to him stating that this is what you have to receive, and don't ask for any support from our side. Seeing the tough approach of the organization, he might agree to situation 1.
3. He refuses situations 1 & 2 both. In this case, a warning letter with his performance for the last 2 years and the losses because of his non-performance to the organization should be handed over along with a warning letter (similar to appl hr above) should be handed over, and in another 48 hours if no response is received, the organization should issue a termination letter.
If challenged in court by the employee, in that case, this video recording will surely help as the organization has given fair chances to the employee, but he is just not ready to accept the wrongdoing.
Hope this helps, Ms. Geeta.
Note: Kindly share what you/your organization did and what was the response of the employee.
Regards,
Abhishek Jain
From India, Delhi
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You must have understood by now. Mr. Rao has explained brilliantly. Further to clear things, if the employer (Reporting Boss / HOD / HR) discusses with the employee about his performance and asks him to resign, stating that "we will give you full support in your exit, including your proper FnF, experience letter & Reference check if he gets another job."
There can be only 3 scenarios:
1. He understands the situation, accepts to resign, serves the notice period, and looks for a new job alternatively. (If possible, record audio-visual of the talks).
2. He refuses to listen to the first situation. Then comes the warning letter kept aside (prepared well in advance) and shown to him stating that this is what you have to receive, and don't ask for any support from our side. Seeing the tough approach of the organization, he might agree to situation 1.
3. He refuses situations 1 & 2 both. In this case, a warning letter with his performance for the last 2 years and the losses because of his non-performance to the organization should be handed over along with a warning letter (similar to appl hr above) should be handed over, and in another 48 hours if no response is received, the organization should issue a termination letter.
If challenged in court by the employee, in that case, this video recording will surely help as the organization has given fair chances to the employee, but he is just not ready to accept the wrongdoing.
Hope this helps, Ms. Geeta.
Note: Kindly share what you/your organization did and what was the response of the employee.
Regards,
Abhishek Jain
From India, Delhi
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Dear Abhishek,
I feel he will consult his lawyer and deny your allegations in the proposed show cause. Once a warning letter is issued, then management cannot take recourse to other punishments such as termination due to constitutional protection. It is easier to get a divorce than to dismiss an employee through disciplinary proceedings. The court sifts through evidence minutely.
Thanks
From India, New Delhi
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I feel he will consult his lawyer and deny your allegations in the proposed show cause. Once a warning letter is issued, then management cannot take recourse to other punishments such as termination due to constitutional protection. It is easier to get a divorce than to dismiss an employee through disciplinary proceedings. The court sifts through evidence minutely.
Thanks
From India, New Delhi
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Dear Geetha Nirmalkar,
I was wondering whether I lack English or you people have a different English?
What Shri. Korgaonkar raised was very correct. I also did not understand certain terms "termination without legal issue", "relieving him without legal issue" etc. Does this mean management just does not want to initiate any action against the employee or it wants any such action which will not bring any legal action against management? These words confuse me at least.
As an HR person, one must have a proper record of the employee's performance. It looks like many HR people think that the record of performance only means positive achievements, and to my surprise, negative or non-performance records are ignored. Performance means both ways, positive and negative too.
You said the employee was working for the last 4 years and his performance is poor. Then you must have adequate negative records of him and the timely actions by management on him. In such a case, you should not have any difficulty in dealing with such an employee and come to the desired result.
From India, Kolhapur
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I was wondering whether I lack English or you people have a different English?
What Shri. Korgaonkar raised was very correct. I also did not understand certain terms "termination without legal issue", "relieving him without legal issue" etc. Does this mean management just does not want to initiate any action against the employee or it wants any such action which will not bring any legal action against management? These words confuse me at least.
As an HR person, one must have a proper record of the employee's performance. It looks like many HR people think that the record of performance only means positive achievements, and to my surprise, negative or non-performance records are ignored. Performance means both ways, positive and negative too.
You said the employee was working for the last 4 years and his performance is poor. Then you must have adequate negative records of him and the timely actions by management on him. In such a case, you should not have any difficulty in dealing with such an employee and come to the desired result.
From India, Kolhapur
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Dear Kulkarni,
What follows after granting him increments every year and other benefits every year is obvious. So if the management is considering adopting the path of disciplinary action, then a foolproof method needs to be resorted to. The query does not answer whether he is a workman. If he is, then resorting to it is essential; otherwise, contractual terms govern the situation.
From India, New Delhi
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What follows after granting him increments every year and other benefits every year is obvious. So if the management is considering adopting the path of disciplinary action, then a foolproof method needs to be resorted to. The query does not answer whether he is a workman. If he is, then resorting to it is essential; otherwise, contractual terms govern the situation.
From India, New Delhi
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I wish things like employment contracts could be enforced in India, benefiting the employee more than the employer. HR in India is always behind in terminating employees as if they are disposable resources. I wish HR would terminate a few people from their own community for unethical recruiting practices.
From India, Bangalore
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From India, Bangalore
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Dear Vijay,
It is not that employees do not get justice, but there may be a delay. Everyone wants speedy justice. The basic premise is that everyone should know where they stand legality-wise and merit-wise. Only then should they tread on the path of litigation.
From India, New Delhi
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It is not that employees do not get justice, but there may be a delay. Everyone wants speedy justice. The basic premise is that everyone should know where they stand legality-wise and merit-wise. Only then should they tread on the path of litigation.
From India, New Delhi
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What I wish to understand from the post of Geetha is that they have to get rid of him, known to be an underperformer who has put in 4 years of service without any hassles. Their fear is his wife happens to be a PP. A simple answer to this could be "negotiate with him" and pay for it. If not, what are the possibilities? When it comes to resignation and relieving, there ends the matter. Whereas termination means it requires detailed documentation about his bad performance so far, very meticulously recorded over the years, by which only you can defend when the matter is taken to court. Otherwise, there is every chance of losing the case, I presume, as stated by many friends he has been serving 4 years normally, granted increments from time to time like many of his counterparts. How come suddenly he has become bad this year only, which question has to be substantiated and defended adequately.
From India, Bangalore
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From India, Bangalore
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Hi,
I would suggest that you keep copies of the emails sent as warnings to this employee for your reference. These should be maintained as records in his service file as well. Additionally, please refer to the terms of employment outlined in the Appointment Letter issued to him. You may be required to provide him with notice pay (as per the terms of employment) and settle his dues.
Furthermore, please ensure that you obtain his signature on the No-Dues Clearance form to prevent any potential legal complications.
Regards,
Harpreet
From India, New Delhi
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I would suggest that you keep copies of the emails sent as warnings to this employee for your reference. These should be maintained as records in his service file as well. Additionally, please refer to the terms of employment outlined in the Appointment Letter issued to him. You may be required to provide him with notice pay (as per the terms of employment) and settle his dues.
Furthermore, please ensure that you obtain his signature on the No-Dues Clearance form to prevent any potential legal complications.
Regards,
Harpreet
From India, New Delhi
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The lexicographical meaning of "relieve" is to release a person from duty or a task by taking his place or providing a substitute. It is not much different from termination of services. However, if by "relieve," you mean persuading him to resign, then of course, you can try the same. The apt quote in such a situation is, "when u part, part as friends." Now, if he does not want to resign, then find out if he falls under the ID Act. Then follow Sec. 25 F of the Act. If not, follow the terms and conditions of appointment. Always ensure natural justice. Who said that HR practitioners are different from lawyers? They must work in a legalistic and judicious manner. By the way, if you do your homework properly before such termination of employment, you need not be bogged down by the fact that the spouse is a lawyer by profession or a very influential person, for that matter. Regards.
From India, Patna
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From India, Patna
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