Dear seniors,
We have an employee whose 6-month probation ended on May 13, and now he has completed 1 year without a confirmation/extension letter. Due to a lot of restructuring being done, his performance could not be assessed. We genuinely want to give him 3 months to improve performance. Can we issue an extension letter for 3 more months now after 1 year, or should we issue a new appointment letter?
From India, Mumbai
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49We have an employee whose 6-month probation ended on May 13, and now he has completed 1 year without a confirmation/extension letter. Due to a lot of restructuring being done, his performance could not be assessed. We genuinely want to give him 3 months to improve performance. Can we issue an extension letter for 3 more months now after 1 year, or should we issue a new appointment letter?
From India, Mumbai
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It is not proper to issue a 3-month extension letter after completion of a year. It is the responsibility of the employer to evaluate and communicate to the employee in regular intervals where the employee is in probation. To this extent, an evaluation sheet/feedback from the immediate superior/HOD is mandatory.
It is not simply to say that the probationer is not doing well but to identify and extend training to the employee to improve his skills. Strictly speaking, it is the superior who is responsible for the poor performance of his junior. In this type of case, the superior is unable to evaluate the potential of the candidate at the time of the interview and unable to train him to the requirements of the organization; it is almost more than one year.
Thanks - Kamesh
From India, Hyderabad
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It is not simply to say that the probationer is not doing well but to identify and extend training to the employee to improve his skills. Strictly speaking, it is the superior who is responsible for the poor performance of his junior. In this type of case, the superior is unable to evaluate the potential of the candidate at the time of the interview and unable to train him to the requirements of the organization; it is almost more than one year.
Thanks - Kamesh
From India, Hyderabad
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Issuing a 3-month extension letter after the completion of 1 year would not stand in case this becomes a dispute. To avoid such a situation in the future, you should amend your appointment letter terms of probation, specifying that unless confirmed in writing, you will be deemed to be on probation. However, that period should also not be abnormally long where an employee is in suspense about his employment status.
Regards,
Rajendra Zala
From India, Rajkot
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Regards,
Rajendra Zala
From India, Rajkot
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Dear Rajendra Zala and Kamesh333,
Thank you both for the response. You are right; it should not have been done that way, and we have already amended the appointment letter for the same. To comply with statutory regulations, what should we do now? Should we issue a new appointment letter? Also, can an employee be on probation for 1 year and 5 months? Does he automatically become permanent? While we are paying PF, ESIC, bonus, is there any difference between being on probation and permanent other than the one-month notice?
Thank you.
From India, Mumbai
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Thank you both for the response. You are right; it should not have been done that way, and we have already amended the appointment letter for the same. To comply with statutory regulations, what should we do now? Should we issue a new appointment letter? Also, can an employee be on probation for 1 year and 5 months? Does he automatically become permanent? While we are paying PF, ESIC, bonus, is there any difference between being on probation and permanent other than the one-month notice?
Thank you.
From India, Mumbai
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An employee is hired on probation, and if no communication is made to the employee regarding extension or other actions, then it is deemed that the employee gets the status of a permanent employee.
Now you can issue him/her a letter stating that his/her performance needs to be improved, mentioning specific instances. There is no point in issuing a new appointment letter; instead, issue him/her an additional letter if you want to make any changes to the appointment letter.
From India, Bhubaneswar
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Now you can issue him/her a letter stating that his/her performance needs to be improved, mentioning specific instances. There is no point in issuing a new appointment letter; instead, issue him/her an additional letter if you want to make any changes to the appointment letter.
From India, Bhubaneswar
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Thanks, Abedeen7. I appreciate the solution given by you. Could you or anyone here shed some light on the difference between a probationer and a permanent employee, particularly in terms of receiving benefits such as ESIC and PF?
From India, Mumbai
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From India, Mumbai
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Dear Gaurir,
The maximum probation time for an employee could be 1 year. If the employer does not regularize the services of any employee after completing 1 year of the probation period, then the services of such an employee are deemed permanent.
Thank you.
From India, Delhi
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The maximum probation time for an employee could be 1 year. If the employer does not regularize the services of any employee after completing 1 year of the probation period, then the services of such an employee are deemed permanent.
Thank you.
From India, Delhi
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I have a different opinion from what is stated by Abedeen. There is no automatic confirmation. An employee on probation is said to be on probation only so long as he has been communicated that he has been confirmed.
Please follow the verdicts in Dinesh Kumar Mishra Vs. Union of India and Ohd. Salman Vs Management Committee, and a lot of other verdicts including the one reported last month, viz, Amarnath Menokodath Remanan Vs The Chairman National Institute of Jewellery Design and others (2013 LLR 1125) in which the courts have clarified that a probationer cannot claim automatic confirmation even if he continues to perform his duties after the expiry of the probationary period in the absence of any specific clause in the appointment order that he will be confirmed automatically.
Therefore, if the performance of the said employee is not up to the expectation, you can either extend the probation now or even terminate him. But while terminating, please do not state the reason for termination, like "since your performance is not up to the expected level your service is hereby terminated," but just say that following clause... of the contract of employment/appointment order, you are hereby terminated from service. In the formal case, you will be inviting complications because if you have a reason behind termination, you should have informed the employee of that reason and should have sought clarifications from him. For example, if the performance is bad, you should have given him a warning and provided opportunities to improve his performance. Termination "on the ground" of poor performance, which was not communicated, will be illegal. I do not remember the case to this point, but there was a case in which a Reader or Professor of a University in Tamil Nadu, if I am right (I believe Madras University only), was terminated on the ground of plagiarism during his probation period where the charge or ground of termination was stated to be plagiarism for which no memo was given, and an inquiry was conducted. At the same time, the employer has every right to terminate a probationer without any reason. That means if there is any reason behind termination, the employee should be aware of it, and the reason should be established beyond doubt.
Regards,
Madhu.T.K
From India, Kannur
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Please follow the verdicts in Dinesh Kumar Mishra Vs. Union of India and Ohd. Salman Vs Management Committee, and a lot of other verdicts including the one reported last month, viz, Amarnath Menokodath Remanan Vs The Chairman National Institute of Jewellery Design and others (2013 LLR 1125) in which the courts have clarified that a probationer cannot claim automatic confirmation even if he continues to perform his duties after the expiry of the probationary period in the absence of any specific clause in the appointment order that he will be confirmed automatically.
Therefore, if the performance of the said employee is not up to the expectation, you can either extend the probation now or even terminate him. But while terminating, please do not state the reason for termination, like "since your performance is not up to the expected level your service is hereby terminated," but just say that following clause... of the contract of employment/appointment order, you are hereby terminated from service. In the formal case, you will be inviting complications because if you have a reason behind termination, you should have informed the employee of that reason and should have sought clarifications from him. For example, if the performance is bad, you should have given him a warning and provided opportunities to improve his performance. Termination "on the ground" of poor performance, which was not communicated, will be illegal. I do not remember the case to this point, but there was a case in which a Reader or Professor of a University in Tamil Nadu, if I am right (I believe Madras University only), was terminated on the ground of plagiarism during his probation period where the charge or ground of termination was stated to be plagiarism for which no memo was given, and an inquiry was conducted. At the same time, the employer has every right to terminate a probationer without any reason. That means if there is any reason behind termination, the employee should be aware of it, and the reason should be established beyond doubt.
Regards,
Madhu.T.K
From India, Kannur
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Dear Gaurir,
Each and every employee is issued with an appointment letter containing the terms of appointment, including the clause of the probation period. No one has the authority to change the terms of employment/appointment unless notice of change is given as per Sec. 9/9(A) of the ID Act. So, if the probation period has been mentioned as six months, it has to be closed after the expiry of six months provided the performance is satisfactory or extended for a period of 3 months at a time by giving the employee concerned a caution letter to improve his conduct.
In the instant case, the performance of the employee(s) concerned could not be evaluated in time due to the pre-occupation of the persons with whom the onus rested. It is not the fault of the employee, so why should he suffer for the fault on the part of management? You can rectify the delay caused by requesting the Controlling officer to assess and report their performance during the probation period and issue a probation closure order on the current date with retrospective effect. The probation period should not be extended as the employee was not cautioned to improve his conduct during the probation period. Giving such an extension letter now will be a foul play with the employee(s) concerned for a fault which they have not committed. A fair play will speak well of management and will build an atmosphere of good relations and trust amongst the employees and managements for a long time to come. This will also help to improve IR of the establishment as a whole.
Best wishes.
AK Jain
HR Personnel
NCL, CIL
From India, New+Delhi
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Each and every employee is issued with an appointment letter containing the terms of appointment, including the clause of the probation period. No one has the authority to change the terms of employment/appointment unless notice of change is given as per Sec. 9/9(A) of the ID Act. So, if the probation period has been mentioned as six months, it has to be closed after the expiry of six months provided the performance is satisfactory or extended for a period of 3 months at a time by giving the employee concerned a caution letter to improve his conduct.
In the instant case, the performance of the employee(s) concerned could not be evaluated in time due to the pre-occupation of the persons with whom the onus rested. It is not the fault of the employee, so why should he suffer for the fault on the part of management? You can rectify the delay caused by requesting the Controlling officer to assess and report their performance during the probation period and issue a probation closure order on the current date with retrospective effect. The probation period should not be extended as the employee was not cautioned to improve his conduct during the probation period. Giving such an extension letter now will be a foul play with the employee(s) concerned for a fault which they have not committed. A fair play will speak well of management and will build an atmosphere of good relations and trust amongst the employees and managements for a long time to come. This will also help to improve IR of the establishment as a whole.
Best wishes.
AK Jain
HR Personnel
NCL, CIL
From India, New+Delhi
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