Hi, Can anyone please tell me if we can terminate any employee for non performance without paying the salary? In termination of non performance, what is the right thing to do?
From India, Bengaluru
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From India, Bengaluru
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Dear Punnya Sumith,
In the case of underperformance or non-performance of an employee, the employer needs to conduct a domestic inquiry. You need to establish clearly the causes of underperformance or non-performance. After the inquiry, you may award suitable punishment to an employee, which could even include termination of his/her services.
If you terminate the services of an employee, it would be the highest form of punishment. Therefore, you cannot forfeit the wages of an employee, nor can you impose double punishment for a single misconduct. Doing so would go against the principles of natural justice.
Thanks,
Dinesh Divekar
+91-9900155394
From India, Bangalore
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8032In the case of underperformance or non-performance of an employee, the employer needs to conduct a domestic inquiry. You need to establish clearly the causes of underperformance or non-performance. After the inquiry, you may award suitable punishment to an employee, which could even include termination of his/her services.
If you terminate the services of an employee, it would be the highest form of punishment. Therefore, you cannot forfeit the wages of an employee, nor can you impose double punishment for a single misconduct. Doing so would go against the principles of natural justice.
Thanks,
Dinesh Divekar
+91-9900155394
From India, Bangalore
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Sumith,
Your HR manual should define non-performance under the termination section, clearly prescribing what would constitute non-performance. It is quite vital to prescribe the process the company would follow to deal with non-performance, say:
- verbal warnings
- written notice clearly defining the performance improvement plan
- temporary suspension in consonance with prima facie evidence to prove lack of improvement
- termination notice
You cannot simply terminate anyone without having an audit trail. When I say 'audit trail', I mean substantial evidence to prove that the termination was lawful and in compliance with the company policies. If the employee has actually worked for a certain period, you cannot withhold his salary.
Best wishes!
From India, New Delhi
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Your HR manual should define non-performance under the termination section, clearly prescribing what would constitute non-performance. It is quite vital to prescribe the process the company would follow to deal with non-performance, say:
- verbal warnings
- written notice clearly defining the performance improvement plan
- temporary suspension in consonance with prima facie evidence to prove lack of improvement
- termination notice
You cannot simply terminate anyone without having an audit trail. When I say 'audit trail', I mean substantial evidence to prove that the termination was lawful and in compliance with the company policies. If the employee has actually worked for a certain period, you cannot withhold his salary.
Best wishes!
From India, New Delhi
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Dear Punnya,
You can terminate the employee on the grounds of non/poor performance by complying with the Principle of Natural Justice. The concerned employee must be given the opportunity to improve performance and defend themselves. Illegal termination is subject to dispute under section 2A of the ID Act 1947 if challenged by the concerned employee.
However, you cannot withhold the salary of a terminated employee if the employee is covered under the Payment of Wages Act 1936, as per section 5(2) of the said act. Salary should be paid within 2 days of the termination of the employee's service. According to section 5(4), the salary is to be paid only on working days to a terminated employee.
Non-compliance with the Principle of Natural Justice and withholding the salary of a terminated employee are considered unfair labor practices. Section 25T of the ID Act 1947 prohibits unfair labor practices. Engaging in unfair labor practices can lead to penalties under section 25U of the ID Act 1947.
Thanks & Regards,
V. SHAKYA
HR & Labor, Corporate Laws Advisor
From India, Agra
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You can terminate the employee on the grounds of non/poor performance by complying with the Principle of Natural Justice. The concerned employee must be given the opportunity to improve performance and defend themselves. Illegal termination is subject to dispute under section 2A of the ID Act 1947 if challenged by the concerned employee.
However, you cannot withhold the salary of a terminated employee if the employee is covered under the Payment of Wages Act 1936, as per section 5(2) of the said act. Salary should be paid within 2 days of the termination of the employee's service. According to section 5(4), the salary is to be paid only on working days to a terminated employee.
Non-compliance with the Principle of Natural Justice and withholding the salary of a terminated employee are considered unfair labor practices. Section 25T of the ID Act 1947 prohibits unfair labor practices. Engaging in unfair labor practices can lead to penalties under section 25U of the ID Act 1947.
Thanks & Regards,
V. SHAKYA
HR & Labor, Corporate Laws Advisor
From India, Agra
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