Does a probationer at the end of the expiry of the probationary period automatically acquire the status of a confirmed employee?
From India, New Delhi
421From India, New Delhi
Dear Mr.Kumar,
As you know pretty well, the phase of probation in an employee's career is strictly as per the terms of the contract of employment only on occasions like new hiring and promotion to a higher cadre within the organization. It is not a statutorily prescribed condition of employment but for the guidelines provided in the Model Standing Orders under the IE(SO)Act,1946 as of now.
Since probation is a phase of orientation of the new appointee to the organization and test of his suitability to the job position offered, it cannot be indefinitely long. Hence the provision for extension of probation period in case of shortfall in the employee's expected overall performance and a formal declaration by the employer in this regard.
Therefore, as declaration of satisfactory completion of probation followed by an order of confirmation is a matter depending on the subjective consideration of the employer, no probationer will acquire the status of confirmed employee automatically by the efflux of time. Of course it is possible, if there is provision in the contract of employment for deemed confirmation after the lapse of a stipulated period of time without a formal orders either way by the employer.
Well, when the employer simply keeps mum on the matter indefinitely, what would be the remedy available to such an unfortunate employee kept as a probationer for years?
The employee, if he is a workman, has to invoke the provision of sec.25-T of the IDA,1947 against the employer for committing the unfair labor practice enumerated at sl.no.10 of Part I of the fifth Schedule of the Act.
From India, Salem
As you know pretty well, the phase of probation in an employee's career is strictly as per the terms of the contract of employment only on occasions like new hiring and promotion to a higher cadre within the organization. It is not a statutorily prescribed condition of employment but for the guidelines provided in the Model Standing Orders under the IE(SO)Act,1946 as of now.
Since probation is a phase of orientation of the new appointee to the organization and test of his suitability to the job position offered, it cannot be indefinitely long. Hence the provision for extension of probation period in case of shortfall in the employee's expected overall performance and a formal declaration by the employer in this regard.
Therefore, as declaration of satisfactory completion of probation followed by an order of confirmation is a matter depending on the subjective consideration of the employer, no probationer will acquire the status of confirmed employee automatically by the efflux of time. Of course it is possible, if there is provision in the contract of employment for deemed confirmation after the lapse of a stipulated period of time without a formal orders either way by the employer.
Well, when the employer simply keeps mum on the matter indefinitely, what would be the remedy available to such an unfortunate employee kept as a probationer for years?
The employee, if he is a workman, has to invoke the provision of sec.25-T of the IDA,1947 against the employer for committing the unfair labor practice enumerated at sl.no.10 of Part I of the fifth Schedule of the Act.
From India, Salem
Dear Member,
Absence of a formal confirmation letter after completion of the probation period of six month, seem to be the extension of probation as mentioned in the earlier reply by learned member Mr. Umakanthan, without any specific condition in the appointment letter. Employer cannot keep it pending after 9 months of employment by a probationer. As per the standing orders, in absence of any formal confirmation, employee deemed to be a permanent employee, as he has already completed 240 working days in the payroll of the company.
Anil Kumar
From India, Pune
Absence of a formal confirmation letter after completion of the probation period of six month, seem to be the extension of probation as mentioned in the earlier reply by learned member Mr. Umakanthan, without any specific condition in the appointment letter. Employer cannot keep it pending after 9 months of employment by a probationer. As per the standing orders, in absence of any formal confirmation, employee deemed to be a permanent employee, as he has already completed 240 working days in the payroll of the company.
Anil Kumar
From India, Pune
This calls for clarification, as there is a popular misconception that on completion of 240 working days in the payroll of the company an employee becomes a permanent employee. All that the law mandates is that on completion of 240 days service an employee cannot be terminated except as a result of disciplinary action, superannuation, voluntary retirement, discharge based on medical ground or as per service condition, otherwise, it will be retrenchment for which the statutory conditions have to be met. The position of law is that the status of the employee (daily rated/temporary/casual/regular etc.,) continues to be the same after 240 days of service.
From India, Mumbai
From India, Mumbai
No. The manager of the employee shall share required inputs to the Management or HR, recommending the confirmation of the employee. Many organizations use performance review kind of a procedure - self, manager and HR review of the employee and take a call whether to confirm, extend the probation or settle the employee.
From India, Bangalore
From India, Bangalore
Dear Kumar,
It is not known whether probationer referred to in your query is a workman or non-workman.
But I am a bit surprised at the observation by Mr Umakanhan that probation is not statutorily prescribed conditions and the provision in the Model Standing Orders are mere guidelines. I beg to differ. If the IESOs Act applies the provision of 3 months probation under the MSO have statutory force for workman category.
For non-workman, the conditions concerning Period, extension and confirmation of the probation period as contained in the appointment letter will prevail.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
It is not known whether probationer referred to in your query is a workman or non-workman.
But I am a bit surprised at the observation by Mr Umakanhan that probation is not statutorily prescribed conditions and the provision in the Model Standing Orders are mere guidelines. I beg to differ. If the IESOs Act applies the provision of 3 months probation under the MSO have statutory force for workman category.
For non-workman, the conditions concerning Period, extension and confirmation of the probation period as contained in the appointment letter will prevail.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
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