Dear Members,
We are a manufacturing company less than 2 years old in Tamil Nadu, employing about 40 people (22 of whom are workmen). We would like to terminate a workman because he has been absent for 6 consecutive days without prior permission from the company or any intimation to his supervisor. This is considered gross misconduct, and we would like to know if I can proceed with the termination due to disciplinary reasons. Please advise.
Thanks.
From India, Madras
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2We are a manufacturing company less than 2 years old in Tamil Nadu, employing about 40 people (22 of whom are workmen). We would like to terminate a workman because he has been absent for 6 consecutive days without prior permission from the company or any intimation to his supervisor. This is considered gross misconduct, and we would like to know if I can proceed with the termination due to disciplinary reasons. Please advise.
Thanks.
From India, Madras
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Dear Friend,
As an HR professional, the first step is to understand the employee's problem. If the employee is facing a critical issue, termination may not be the appropriate solution for their absenteeism. However, if the employee has a habit of being absent from duty, then necessary actions should be considered.
From United States
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As an HR professional, the first step is to understand the employee's problem. If the employee is facing a critical issue, termination may not be the appropriate solution for their absenteeism. However, if the employee has a habit of being absent from duty, then necessary actions should be considered.
From United States
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Hi,
You will first need to call the employee and have a personal discussion with him to find out the reason for his absenteeism. You could ask him to "show cause" as to why he has been regularly failing to report to work. In the absence of a reasonable/valid response from him, the next ideal step would be to issue a warning letter asking him to be regular; failing which you will be forced to take necessary disciplinary action, including termination. If the absenteeism still continues, you may proceed with the termination.
Regards,
From India, Bangalore
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You will first need to call the employee and have a personal discussion with him to find out the reason for his absenteeism. You could ask him to "show cause" as to why he has been regularly failing to report to work. In the absence of a reasonable/valid response from him, the next ideal step would be to issue a warning letter asking him to be regular; failing which you will be forced to take necessary disciplinary action, including termination. If the absenteeism still continues, you may proceed with the termination.
Regards,
From India, Bangalore
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Many organizations face the problem of absentee employees. You can issue a show-cause notice clearly stating the dates of absence, the number of days of absence since his initial date of absence, and the occasions (as per model standing orders). Then charge him with clause 24(f) habitual absence... (full clause). Please ensure that this show-cause notice is issued to both his address on record and his permanent address to reach him. Thereafter, issue a charge sheet, conduct an inquiry, and provide him with an opportunity for defense. Please follow the proper disciplinary procedure.
From India, Pune
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From India, Pune
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Dear All,
Thank you all for your valuable replies. Please find my comments below.
Mr. Amit Thakkar
1. Employee joining Date - September '2010
2. We do not have a standing order yet. Is it necessary to have a standing order for a company that has fewer than 30 workmen?
3. This employee has already been terminated from another company.
Mr. Satish Parimal
I understand what you mean, and I too second your opinion that as HR personnel, we should also have a humanitarian view on certain issues.
But, the case here is, this particular workman did not inform the company or the supervisor about his leave and took six days' leave in a row. We have also identified that this person made his wife participate in the local body elections, which is the true reason for his absence. Unaware of the fact that the company knows the true reason, he wrote a letter stating that due to the ill health of his wife, he had to take leave. This isn't true.
Chonds
Please read my comments above and advise.
Thanks and looking forward to your valuable feedback.
From India, Madras
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Thank you all for your valuable replies. Please find my comments below.
Mr. Amit Thakkar
1. Employee joining Date - September '2010
2. We do not have a standing order yet. Is it necessary to have a standing order for a company that has fewer than 30 workmen?
3. This employee has already been terminated from another company.
Mr. Satish Parimal
I understand what you mean, and I too second your opinion that as HR personnel, we should also have a humanitarian view on certain issues.
But, the case here is, this particular workman did not inform the company or the supervisor about his leave and took six days' leave in a row. We have also identified that this person made his wife participate in the local body elections, which is the true reason for his absence. Unaware of the fact that the company knows the true reason, he wrote a letter stating that due to the ill health of his wife, he had to take leave. This isn't true.
Chonds
Please read my comments above and advise.
Thanks and looking forward to your valuable feedback.
From India, Madras
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As posted above that employee can be terminated by paying all dues do you mean any emplyee can be terminated by paying dues irrespective of his seniority .
From India, Nagpur
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From India, Nagpur
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When the employee remained absent from work?
Had you issued a Show Cause Notice to him?
Had you given a written explanation to the SCN or submitted a document of ill-health?
If not submitted, had you called for the documents?
If an enquiry had been conducted, what is its report? If not completed, what is the status of the enquiry?
Had the employee been allowed to work after his 6 days of continuous absence from work?
Please answer these questions to provide you with suggestions.
From India, Tiruchchirappalli
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Had you issued a Show Cause Notice to him?
Had you given a written explanation to the SCN or submitted a document of ill-health?
If not submitted, had you called for the documents?
If an enquiry had been conducted, what is its report? If not completed, what is the status of the enquiry?
Had the employee been allowed to work after his 6 days of continuous absence from work?
Please answer these questions to provide you with suggestions.
From India, Tiruchchirappalli
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Hi
Termination is not a solution for all the problems. As you Mentioned in this comment he is terminated from another company, I have a question if a Person is terminated from another company how you people recruit him without the knowing the real reason of his termination in the previous company due to his Misconduct???????? Or due to his Absenteeism???? Or Due to his health issues??? or due to his Personal problems???????? first know why he is terminated, If there is Proper reason like misconduct or anything you can terminate him or else see how critical the employee is for your concern try to give him warning like deduct his salary amount or Terminating him .Without knowing the reason behind you should not decease him out of the job. As you said there is no standing order in your company, First Company should frame the rules of Do's and Don’ts Then only employee will follow the rules. Without having proper implementation how can you terminate Employee????????????
As you asked, Is it necessary to have a standing order for a company that has less than 30 workmen,. According to [section 1(3)]. The Act is applicable to all industrial establishments‘ employing 100 or more workmen.
From India, Coimbatore
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Termination is not a solution for all the problems. As you Mentioned in this comment he is terminated from another company, I have a question if a Person is terminated from another company how you people recruit him without the knowing the real reason of his termination in the previous company due to his Misconduct???????? Or due to his Absenteeism???? Or Due to his health issues??? or due to his Personal problems???????? first know why he is terminated, If there is Proper reason like misconduct or anything you can terminate him or else see how critical the employee is for your concern try to give him warning like deduct his salary amount or Terminating him .Without knowing the reason behind you should not decease him out of the job. As you said there is no standing order in your company, First Company should frame the rules of Do's and Don’ts Then only employee will follow the rules. Without having proper implementation how can you terminate Employee????????????
As you asked, Is it necessary to have a standing order for a company that has less than 30 workmen,. According to [section 1(3)]. The Act is applicable to all industrial establishments‘ employing 100 or more workmen.
From India, Coimbatore
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First, we need to initiate a call for an explanation through a registered post. I want to know what clauses are included in the appointment order for absenteeism. Otherwise, please send a letter to his residential address as per the record through registered post asking him to join duty immediately. Following this procedure, start by sending three letters at intervals of 5 days each. After that, you can issue the termination order with all the necessary proofs.
From India, Madras
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From India, Madras
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I suggest that you visit the family of the employee and talk to the members. There are two benefits: (i) you will know whether there is any genuine problem; in this case, take a soft approach. (ii) if there is no issue at home front, explain the consequences of termination due to absenteeism to the family (loss of income). In this case, the family members will exert pressure/motivate the employee. If the absenteeism continues, take appropriate action.
The other employees will appreciate your gesture.
From India, Madras
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The other employees will appreciate your gesture.
From India, Madras
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Dear,
Kindly go through your company policy and Company Standing Order. If it's clearly mentioned in your policy/Standing Order for termination with such misconduct, then you can. Otherwise, you cannot. Secondly, if you have already issued him a show-cause notice for absence, then issue a strong show-cause notice again. Write in the notice that if you repeat such absences in the future, the management is bound to take strong action against you for which you are fully responsible.
From India, Rudarpur
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Kindly go through your company policy and Company Standing Order. If it's clearly mentioned in your policy/Standing Order for termination with such misconduct, then you can. Otherwise, you cannot. Secondly, if you have already issued him a show-cause notice for absence, then issue a strong show-cause notice again. Write in the notice that if you repeat such absences in the future, the management is bound to take strong action against you for which you are fully responsible.
From India, Rudarpur
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Dear,
I would like to mention the following important notes from my point of view:
When the mentioned employee joined the company, is there a clear policy on working hours and attendance? If not, you need to establish one as soon as possible and ensure all employees are aware of the disciplinary procedures. The same applies to the vacation policy; it should be clearly announced in a visible place for all employees to read.
Absenteeism rate is closely related to employee satisfaction. We need to determine if this issue has occurred with other employees in the past or if it is specific to the mentioned employee. If it is a recurring problem, solutions should be sought at the source rather than merely addressing the outcome.
Warning letters and apology letters are effective legal solutions. The reason for the warning letter must be clearly specified. The employee's acceptance of the warning letter should be documented before placing it in their personnel file. As HR, it is essential to assess the employee's performance to understand if it was poor or acceptable. This procedure is crucial for ensuring all employees in your firm respect the rules.
Currently, we are addressing two main issues:
1. Absence from work without a valid reason.
2. Providing false declarations regarding absence. It is crucial to verify such claims rather than solely relying on hearsay.
In conclusion, I recommend the following:
- Issuing a warning letter is necessary.
- The content of the warning letter should be based on the responses to the above points.
- Clearly state in the warning letter that repeated actions will result in appropriate disciplinary measures, potentially leading to termination.
I hope these points prove helpful to you.
Best regards
From Syrian Arab Republic, Aleppo
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I would like to mention the following important notes from my point of view:
When the mentioned employee joined the company, is there a clear policy on working hours and attendance? If not, you need to establish one as soon as possible and ensure all employees are aware of the disciplinary procedures. The same applies to the vacation policy; it should be clearly announced in a visible place for all employees to read.
Absenteeism rate is closely related to employee satisfaction. We need to determine if this issue has occurred with other employees in the past or if it is specific to the mentioned employee. If it is a recurring problem, solutions should be sought at the source rather than merely addressing the outcome.
Warning letters and apology letters are effective legal solutions. The reason for the warning letter must be clearly specified. The employee's acceptance of the warning letter should be documented before placing it in their personnel file. As HR, it is essential to assess the employee's performance to understand if it was poor or acceptable. This procedure is crucial for ensuring all employees in your firm respect the rules.
Currently, we are addressing two main issues:
1. Absence from work without a valid reason.
2. Providing false declarations regarding absence. It is crucial to verify such claims rather than solely relying on hearsay.
In conclusion, I recommend the following:
- Issuing a warning letter is necessary.
- The content of the warning letter should be based on the responses to the above points.
- Clearly state in the warning letter that repeated actions will result in appropriate disciplinary measures, potentially leading to termination.
I hope these points prove helpful to you.
Best regards
From Syrian Arab Republic, Aleppo
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You mentioned that the employee has been terminated by his previous employer. Does that not ring a bell? Something's fishy. He might have been held accountable for something and had to pay the price. You would not want to continue with such an employee anyway. To keep things simple, confront him and request him to put his papers down.
By doing this, your organization is not hampering his career. He can have the experience certificate from you and move on elsewhere.
From India, Mumbai
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By doing this, your organization is not hampering his career. He can have the experience certificate from you and move on elsewhere.
From India, Mumbai
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Dear all, Rather to terminate please go through the problems of concern employee and solve the same getting 40 employees termination may cause the huge loss to company also. sumit
From India, Ghaziabad
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From India, Ghaziabad
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Hi Amit,
Firstly, I had a difficult time understanding what you have written above.
Secondly, I believe we should address each other professionally as this is a professional online forum.
Lastly, let me tell you that requesting an employee to resign (and not forcing them to do so) does not create a problem for the organization.
From India, Mumbai
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Firstly, I had a difficult time understanding what you have written above.
Secondly, I believe we should address each other professionally as this is a professional online forum.
Lastly, let me tell you that requesting an employee to resign (and not forcing them to do so) does not create a problem for the organization.
From India, Mumbai
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Dear Lawrence,
Termination is not always the final solution. It is important to first identify the root cause of the issue and then take necessary actions accordingly. If the behavior is habitual, consider issuing a warning letter advising the individual to improve their attendance. If there is no improvement, then strict action regarding their misconduct may be necessary.
Regards,
Lawrence S.
From India, Madras
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Termination is not always the final solution. It is important to first identify the root cause of the issue and then take necessary actions accordingly. If the behavior is habitual, consider issuing a warning letter advising the individual to improve their attendance. If there is no improvement, then strict action regarding their misconduct may be necessary.
Regards,
Lawrence S.
From India, Madras
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Dear ra7881,
You cannot terminate him from the job. If he goes to the labor office, management will be bound to take him back. In this position, as an HR person, you will be in a humiliating position. You can issue a warning letter/show-cause notice but cannot terminate him. As you said earlier, your company does not have any certified standing order, so you can refer to the Model Standing Order for your reference.
Ratikanta Rath
From India, Durgapur
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You cannot terminate him from the job. If he goes to the labor office, management will be bound to take him back. In this position, as an HR person, you will be in a humiliating position. You can issue a warning letter/show-cause notice but cannot terminate him. As you said earlier, your company does not have any certified standing order, so you can refer to the Model Standing Order for your reference.
Ratikanta Rath
From India, Durgapur
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For six days of absenteeism, you need to first issue a call letter asking him to report for work. Thereafter, if he fails to do so, you can initiate disciplinary action.
rajanlawfirm
Please see https://www.citehr.com/285737-legal-...-industry.html
From India, Madras
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rajanlawfirm
Please see https://www.citehr.com/285737-legal-...-industry.html
From India, Madras
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I think the fact that he has lied about the reason for his leave is enough to initiate action on disciplinary grounds. You will need to issue a show cause notice, conduct an internal inquiry, and then you can terminate him following all the procedures.
However, you need to gather evidence that his wife was not sick but very much actively campaigning.
From India, Mumbai
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However, you need to gather evidence that his wife was not sick but very much actively campaigning.
From India, Mumbai
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Dear Friend,
Straight away, you cannot terminate any employee if they are in permanent roles. Even to issue a memo, you need to have a minimum of 7 days of absence without prior intimation. If your company doesn't have Standing Orders, then you can follow the Model Standing Orders, which you need to mention in the Warning letter/Memo/Show Cause Notice.
In any case, especially at the Workmen level, you need to build up the file. Hence, try to capitalize on such opportunities and start building the file by issuing Show Cause Notices/Charge Sheets. If the case is chronic, you can use all the documents as weapons.
Regards,
Murthy
GM - HR
From India, Hyderabad
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Straight away, you cannot terminate any employee if they are in permanent roles. Even to issue a memo, you need to have a minimum of 7 days of absence without prior intimation. If your company doesn't have Standing Orders, then you can follow the Model Standing Orders, which you need to mention in the Warning letter/Memo/Show Cause Notice.
In any case, especially at the Workmen level, you need to build up the file. Hence, try to capitalize on such opportunities and start building the file by issuing Show Cause Notices/Charge Sheets. If the case is chronic, you can use all the documents as weapons.
Regards,
Murthy
GM - HR
From India, Hyderabad
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Dear All,
Thank you for your valuable feedback. Please find my comments below.
Dear Mr. Mahesh,
By registered post, we have sent a letter asking for an explanation. We have also specified in the letter that termination without notice will be considered as disciplinary action and the employee will be terminated without notice.
Dear Chonds/Mr. Dheeraj,
I accept your suggestion, and as you said, we had a personal discussion with the concerned workman and found out that he is denying the true reason for his absence, unaware that we have the proof.
Dear ommygautam,
We do not have a standing order since we are less than 50 in strength.
Dear Mr. Tarte,
I agree with your point.
Dear Saswata Bannerjee,
We are sure that he has lied to us and continues to do so. We have evidence as well.
Thank you all for your valuable views. I appreciate your responses. It was of great help.
Thanks...
From India, Madras
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Thank you for your valuable feedback. Please find my comments below.
Dear Mr. Mahesh,
By registered post, we have sent a letter asking for an explanation. We have also specified in the letter that termination without notice will be considered as disciplinary action and the employee will be terminated without notice.
Dear Chonds/Mr. Dheeraj,
I accept your suggestion, and as you said, we had a personal discussion with the concerned workman and found out that he is denying the true reason for his absence, unaware that we have the proof.
Dear ommygautam,
We do not have a standing order since we are less than 50 in strength.
Dear Mr. Tarte,
I agree with your point.
Dear Saswata Bannerjee,
We are sure that he has lied to us and continues to do so. We have evidence as well.
Thank you all for your valuable views. I appreciate your responses. It was of great help.
Thanks...
From India, Madras
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Dear RA778
As being the HR of a company by my self, you must have a company policy in stand which should clear all these things, for e.g in my company's policy i have clearly defined
ABSENCE WITHOUT PRIOR APPROVAL
Absence without Prior Approval
In the event, any employee absents himself/herself from the service beyond 5 working days without any prior approval from the immediate Supervisor; it will be the responsibility of the immediate Supervisor to intimate the HR Department besides the concerned department Head in writing.
The HR Department will send a Letter (Registered AD) at employee’s residence asking him/her to state the reasons of absence and resume services with in a maximum of 5 working.
If the employee does not join with in 5 working days from the receipt of notice, the HR department will initiate the exit procedure by sending a Letter of Abandonment to the concerned employee (Regd. AD). The Separation Note and other steps follow thereafter.
From India, Delhi
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As being the HR of a company by my self, you must have a company policy in stand which should clear all these things, for e.g in my company's policy i have clearly defined
ABSENCE WITHOUT PRIOR APPROVAL
Absence without Prior Approval
In the event, any employee absents himself/herself from the service beyond 5 working days without any prior approval from the immediate Supervisor; it will be the responsibility of the immediate Supervisor to intimate the HR Department besides the concerned department Head in writing.
The HR Department will send a Letter (Registered AD) at employee’s residence asking him/her to state the reasons of absence and resume services with in a maximum of 5 working.
If the employee does not join with in 5 working days from the receipt of notice, the HR department will initiate the exit procedure by sending a Letter of Abandonment to the concerned employee (Regd. AD). The Separation Note and other steps follow thereafter.
From India, Delhi
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Hi,
I do agree with a few of my friends who have said that termination is not the solution. Being an HR person, first dig out the history of that employee to understand why they are behaving in a certain way and what is compelling them to do so, rather than directly referring to your standing orders. Terminating an employee without it being mentioned in your standing orders can lead to a major industrial relations issue. Therefore, you should start by giving warning letters to the employee, with government officials as CC, to make the termination process smoother.
I hope this helps you understand how sensitive the matter is when it comes to termination.
Regards,
Sandeep
From United States, Cambridge
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I do agree with a few of my friends who have said that termination is not the solution. Being an HR person, first dig out the history of that employee to understand why they are behaving in a certain way and what is compelling them to do so, rather than directly referring to your standing orders. Terminating an employee without it being mentioned in your standing orders can lead to a major industrial relations issue. Therefore, you should start by giving warning letters to the employee, with government officials as CC, to make the termination process smoother.
I hope this helps you understand how sensitive the matter is when it comes to termination.
Regards,
Sandeep
From United States, Cambridge
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Make attempts to get hold of him prior to hastily taking any decision to terminate his service. Send him a telegram which must read as follows:
According to our records, you have been absent from work without authorization as of _______ to date (Total number of days absent= ). Please note that you are in breach of your contract of employment and of your duty as an employee to provide your services. This situation is unacceptable.
You are requested to report to work immediately on receipt of this communication, failing which your continued absence will be regarded as desertion and will be dealt with in terms of XYZ Ltd Disciplinary Code. Please note that should you fail to report to work within 24 hours of receipt of this letter, you will be dismissed for desertion, and said dismissal will be confirmed in writing.
From Germany
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According to our records, you have been absent from work without authorization as of _______ to date (Total number of days absent= ). Please note that you are in breach of your contract of employment and of your duty as an employee to provide your services. This situation is unacceptable.
You are requested to report to work immediately on receipt of this communication, failing which your continued absence will be regarded as desertion and will be dealt with in terms of XYZ Ltd Disciplinary Code. Please note that should you fail to report to work within 24 hours of receipt of this letter, you will be dismissed for desertion, and said dismissal will be confirmed in writing.
From Germany
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Hi, I am abirami.MBA graduate . i have 7 yrs work experience in marketing & admin line. so, i want HR related work details.
From India, Bangalore
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From India, Bangalore
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Make your organization bigger and stronger by taking the following steps:
1. Issuing a show cause notice.
2. Sending a warning letter with the Legal Officer in CC.
3. Establishing a disciplinary committee.
I hope this information is helpful to you.
Regards,
Sandeep Thakur
From United States, Cambridge
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1. Issuing a show cause notice.
2. Sending a warning letter with the Legal Officer in CC.
3. Establishing a disciplinary committee.
I hope this information is helpful to you.
Regards,
Sandeep Thakur
From United States, Cambridge
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Replies in this thread seem to miss some vital points the original post makes.
1. It's not a question of habitual absence. It's a question of absence without approval and lying as to the reason for absence.
2. The company has less than 50 employees, and standing orders (model or certified) do not apply.
3. The person has already joined back. There is no question of sending a telegram asking him to join in 5 days, etc.
What is in question here now is whether his lying about his wife's illness is a valid ground for termination. I do not think it is a problem. But of course, I have limited experience in this matter.
From India, Mumbai
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1. It's not a question of habitual absence. It's a question of absence without approval and lying as to the reason for absence.
2. The company has less than 50 employees, and standing orders (model or certified) do not apply.
3. The person has already joined back. There is no question of sending a telegram asking him to join in 5 days, etc.
What is in question here now is whether his lying about his wife's illness is a valid ground for termination. I do not think it is a problem. But of course, I have limited experience in this matter.
From India, Mumbai
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Hi,
As mentioned by one of our friends, the company has less than 50 employees, and standing orders do not apply. Therefore, I would like to request my friend to shed more light on this as I am not sure about this matter.
Regards,
Sandeep Thakur
From United States, Cambridge
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As mentioned by one of our friends, the company has less than 50 employees, and standing orders do not apply. Therefore, I would like to request my friend to shed more light on this as I am not sure about this matter.
Regards,
Sandeep Thakur
From United States, Cambridge
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It appears the information pertaining to this matter is rearing its head in fragmentation. It is now alleged that he lied about his wife's illness, "What is the real problem, his absence or providing false information to the business?"
From Germany
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From Germany
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Hi, can you plz clarify me on the standing order clause of 50 employee , as mentioned above. Regards sandeep thakur
From United States, Cambridge
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From United States, Cambridge
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This is what the act says :
1. Short title, extent and application.- (1) This act may be called the Industrial Employment (Standing Orders) Act, 1946.
(2) It extends to1[the whole of India 2[* * *].]
3[(3) It applies to every industrial establishment wherein one hundred or more workmen are employed, or were employed on any day of the preceding twelve months:
Provided that the appropriate Government may, after giving not less than two months’ notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any industrial establishment employing such number of number of persons less than one hundred as may be specified in the notification :
So obviously for any factory in India where there are less than 100 employees, the standing orders do not apply by law. You are free to follow it voluntarily, but not one can go to court and force you to follow it. You are free to make your own rules and communicate it to the your employees.
From India, Mumbai
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1. Short title, extent and application.- (1) This act may be called the Industrial Employment (Standing Orders) Act, 1946.
(2) It extends to1[the whole of India 2[* * *].]
3[(3) It applies to every industrial establishment wherein one hundred or more workmen are employed, or were employed on any day of the preceding twelve months:
Provided that the appropriate Government may, after giving not less than two months’ notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any industrial establishment employing such number of number of persons less than one hundred as may be specified in the notification :
So obviously for any factory in India where there are less than 100 employees, the standing orders do not apply by law. You are free to follow it voluntarily, but not one can go to court and force you to follow it. You are free to make your own rules and communicate it to the your employees.
From India, Mumbai
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Though the standing orders apply when the company has 50 or more employees, in the case of punitive termination, the procedure normally followed is the same as that in the act. You have to comply with the rules of natural justice, review the past record, and then resort to punishment. Therefore, my earlier advice is correct. Even if he may have been terminated from another company, you have to take independent disciplinary action. So please follow the steps that I had previously stated.
From India, Pune
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From India, Pune
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Dear Mr. [Last Name],
I do not know whether you have actually terminated the worker as of today. However, I offer my views on the issue raised by you.
1. You mentioned that your company is employing thirty workmen, and therefore, the Industrial Employment (Standing Orders) Act will not apply. You have not indicated the State in which your establishment is situated. The I.E. Act grants power to the State Government to apply the provisions of the I.E.S.O. Act to industrial establishments employing fewer than 100 workmen. Please verify whether your State Government has issued any such notification and if it is applicable to your establishment.
2. Assuming that the I.E.S.O. is applicable and that you do not have certified standing orders, then the Model Standing Orders are applicable to you.
3. It is a well-established principle of industrial law that a workman can only be punished for misconduct after following the prescribed legal procedure. Therefore, if a workman is dismissed for conduct that is not misconduct, the dismissal is deemed illegal. In the scenario you described, assuming the I.E.S.O. Act is applicable to your establishment and there are no certified standing orders in place, the Model Standing Orders apply. It must be determined whether being absent for six consecutive days constitutes misconduct under the Model Standing Orders. If not, then the absence cannot be considered misconduct, and the worker should not be penalized. Please confirm whether absence for six days or providing false reasons for absence are considered misconducts under the Model Standing Orders. Otherwise, any dismissal would likely be overturned.
4. If the I.E.S.O. Act is not applicable, the situation would change. It remains a fundamental principle of industrial law that a worker cannot be penalized for an act that is not misconduct. In the absence of standing orders, you must first ascertain if the worker's appointment order or any applicable service regulations clearly state that being absent for six days or providing false reasons for absence are considered misconduct. If not specified, then absence for six days or providing false reasons cannot serve as valid grounds for initiating disciplinary action.
5. In the event that you have already dismissed the worker, if they approach the Labour Court, the dismissal is likely to be overturned on the basis that the punishment of dismissal is disproportionate to the charge of being absent for six days or providing false reasons for absence.
Best regards,
From India, Madras
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I do not know whether you have actually terminated the worker as of today. However, I offer my views on the issue raised by you.
1. You mentioned that your company is employing thirty workmen, and therefore, the Industrial Employment (Standing Orders) Act will not apply. You have not indicated the State in which your establishment is situated. The I.E. Act grants power to the State Government to apply the provisions of the I.E.S.O. Act to industrial establishments employing fewer than 100 workmen. Please verify whether your State Government has issued any such notification and if it is applicable to your establishment.
2. Assuming that the I.E.S.O. is applicable and that you do not have certified standing orders, then the Model Standing Orders are applicable to you.
3. It is a well-established principle of industrial law that a workman can only be punished for misconduct after following the prescribed legal procedure. Therefore, if a workman is dismissed for conduct that is not misconduct, the dismissal is deemed illegal. In the scenario you described, assuming the I.E.S.O. Act is applicable to your establishment and there are no certified standing orders in place, the Model Standing Orders apply. It must be determined whether being absent for six consecutive days constitutes misconduct under the Model Standing Orders. If not, then the absence cannot be considered misconduct, and the worker should not be penalized. Please confirm whether absence for six days or providing false reasons for absence are considered misconducts under the Model Standing Orders. Otherwise, any dismissal would likely be overturned.
4. If the I.E.S.O. Act is not applicable, the situation would change. It remains a fundamental principle of industrial law that a worker cannot be penalized for an act that is not misconduct. In the absence of standing orders, you must first ascertain if the worker's appointment order or any applicable service regulations clearly state that being absent for six days or providing false reasons for absence are considered misconduct. If not specified, then absence for six days or providing false reasons cannot serve as valid grounds for initiating disciplinary action.
5. In the event that you have already dismissed the worker, if they approach the Labour Court, the dismissal is likely to be overturned on the basis that the punishment of dismissal is disproportionate to the charge of being absent for six days or providing false reasons for absence.
Best regards,
From India, Madras
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Termination-emp loyment_563.pdf
Termination letter.doc