Nagaraja (Chief consultant) 11 March 2014

Can an employee be on probation without his agreement?

I was appointed in a private limited company as a director with a salary and shares. But, before the directorship was formalized, after 3 months and 10 days of joining, I had to breakaway and was asked to leave on a single day notice.

Now, I am asking for compensation for the notice period and the company is arguing that I was on probation and no notice period is applicable during probation. Following are the details of my appointment:

1. The appointment letter does not state that I am on probation. It simply states that I have been offered employment and does not mention probation, probation period and confirmation.

2. However, in the termination section it simply states that notice period applicable for employees on probation is 7 days and for those on confirmation the notice period is 1 month.

Given these details, my questions are:

1. Is probation implied automatically in an employment even when it is not mentioned in the appointment letter and the employee's consent has not been taken in writing? (I have heard informally that unless a probation is mentioned along with probationary period, it does not come into effect).

2. Till what level of employment is probation applicable? Is probation applicable to directors also?

3. What are the company act references regarding the same?

Regards,

Nagaraja

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2 Replies

Kumar Doab (FIN) 11 March 2014

Service conditions are stated in standing orders (certified/model) applicable to the establishment and extended to the designation of employee, appointment letter, service rules and regulations mention of which is made in appointment letter.

Standing orders (certified/model) being instrument of law/statue shall prevail upon any private agreement that employer might have signed with employee e.g; appointment letter, contract of employment…………………………etc

Being Director Model Standing orders should not apply to you. Company might have not framed its standing orders and might not have included your designation in it.

Probation/Training period if any, T&C of appointment has to be stated in appointment letter in an explicit manner.

If probation period is not stated in appointment letter then it should not apply and employer is bound by the appointment letter. Thus you should succeed to call the bluff of employer.

If you were asked to leave in writing/on record then employer should tender notice pay for the shortfall in notice period.

If you separated by way of resignation then employer can demand notice pay from you.

It is felt that all transactions with the company are verbal.

Your stakes seems to be high.

Before you act further It shall be appropriate to show the job advt, job application, interview call letter, offer letter, selection letter, appointment letter, CTC sheet, Salary Structure, Salary slips, STANDING ORDERS APPLICABLE TO THE ESTABLISHMENT (CERTIFIED/MODEL) AND EXTENDED TO YOUR DESIGNATION, HR policy, Service rules and regulations, Conduct and discipline rules, resignation letter/termination notice, etc …………. Communications exchanged with company to a competent and experienced Labor consultant/service lawyer at your location, give inputs in person and proceed under the expert advice of your lawyer.