Good Morning,
This post is regarding the termination of an employee. The employee has been on continuous sick leave for the last two months, submitting his medical certificate every 15 days. He has been with the organization for the past 5 years and is frustrated with his job for various reasons. As a senior manager in the organization, management is considering a decision. Can we terminate him in his current sick condition? If not, how long should we continue to accept his medical certificates?
Thank you.
From India, Delhi
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This post is regarding the termination of an employee. The employee has been on continuous sick leave for the last two months, submitting his medical certificate every 15 days. He has been with the organization for the past 5 years and is frustrated with his job for various reasons. As a senior manager in the organization, management is considering a decision. Can we terminate him in his current sick condition? If not, how long should we continue to accept his medical certificates?
Thank you.
From India, Delhi
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Senior manager category will not be covered under the ID Act. Therefore, you can take disciplinary action based on the proofs available with you, following the principles of natural justice. If you terminate him, he cannot seek relief under the ID Act. You can ask him to visit the government hospital doctors or company-authorized doctor to obtain a medical certificate and submit it to prove his illness.
From India, Chennai
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151From India, Chennai
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Dear Member,
The person who has been with your firm for the last 5 years, as confirmed by your post, has dedicated sufficient time to the company. As an HR professional, you must understand the reasons for their frustration and make efforts to support them in becoming a valuable asset to the company. This situation also provides you with an opportunity to showcase your own value within the organization as an HR representative.
If, despite your best efforts, the individual remains unmotivated, they may continue their employment with the organization based on the company's requirements and the candidate's physical fitness. Please review the employment conditions and take necessary actions, especially considering the extended absence.
Thank you.
From India
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The person who has been with your firm for the last 5 years, as confirmed by your post, has dedicated sufficient time to the company. As an HR professional, you must understand the reasons for their frustration and make efforts to support them in becoming a valuable asset to the company. This situation also provides you with an opportunity to showcase your own value within the organization as an HR representative.
If, despite your best efforts, the individual remains unmotivated, they may continue their employment with the organization based on the company's requirements and the candidate's physical fitness. Please review the employment conditions and take necessary actions, especially considering the extended absence.
Thank you.
From India
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Yes, I do agree with Mr. Raj Dubey ...... Company should first check where is fault either from employee side or company side....then they should be take decision accordingly....
From India, Surat
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From India, Surat
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Thanks Rajesh. He is frustrated because he has to report to the person who is new and younger than him, causing an ego clash. We tried to speak to him, but he has been like this for the last year and is now taking unpaid leave in the name of sickness. I just want to know, can we terminate him after giving notice? Can he file a case against us? Is there anything in labor law that applies to this situation?
From India, Delhi
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From India, Delhi
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Proceed with your HR policy because he is a Senior Manager in the supervisory category. If your policy is silent in the case of misconduct or long unapproved absence, then issue him a Charge Sheet, requesting a written explanation within a stipulated period. Before this, obtain a complaint receipt from the concerned department and revoke any further leave sanctioned.
Initiate a domestic inquiry and, after receiving a proper report and finding favorable grounds, issue a letter of termination as per the Standing Orders/HR Policy, whichever is applicable. In all cases, ensure that the individual is given an opportunity and that this is documented.
From India
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Initiate a domestic inquiry and, after receiving a proper report and finding favorable grounds, issue a letter of termination as per the Standing Orders/HR Policy, whichever is applicable. In all cases, ensure that the individual is given an opportunity and that this is documented.
From India
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Dear,
First of all, look into his actual work - whether he was performing managerial, administrative, or supervisory tasks, which can be supported with documents in court. If yes, you can directly terminate him as per the terms of his appointment. Otherwise, you will need to issue a charge sheet. If necessary, conduct an inquiry and then, based on the seriousness of the charges, consider the possibility of dismissal.
Lexlabour.com
From India, Delhi
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First of all, look into his actual work - whether he was performing managerial, administrative, or supervisory tasks, which can be supported with documents in court. If yes, you can directly terminate him as per the terms of his appointment. Otherwise, you will need to issue a charge sheet. If necessary, conduct an inquiry and then, based on the seriousness of the charges, consider the possibility of dismissal.
Lexlabour.com
From India, Delhi
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Mr.Stephen, how we can say manager category is not coming under ID act? Is there any definition in provision of law? Pl clear.
From India, Chennai
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From India, Chennai
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dear sir, if company want to terminate the employee then how it could be possible? without any reason can company terminate the employee?
From India, Miraj
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From India, Miraj
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Mr. Marul,
ID Act 1947 Section 2 has the definition as follows, which states that the managerial, supervisory, and administrative capacities will not come under the purview of a workman under the ID Act.
(s) 5 "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward, whether the terms of employment are express or implied. For the purposes of any proceeding under this Act in relation to an industrial dispute, it includes any such person who has been dismissed, discharged, or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge, or retrenchment has led to that dispute. However, it does not include any such person:
(i) who is subject to the Air Force Act, 1950, or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
From India, Chennai
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ID Act 1947 Section 2 has the definition as follows, which states that the managerial, supervisory, and administrative capacities will not come under the purview of a workman under the ID Act.
(s) 5 "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward, whether the terms of employment are express or implied. For the purposes of any proceeding under this Act in relation to an industrial dispute, it includes any such person who has been dismissed, discharged, or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge, or retrenchment has led to that dispute. However, it does not include any such person:
(i) who is subject to the Air Force Act, 1950, or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
From India, Chennai
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You could do the following:
Visit personally to find out the seriousness and genuineness of his illness.
Contact his doctor under whose supervision he is being treated and is submitting the medical certificates to understand the seriousness and genuineness of his illness with the intention that the organization wants to help him.
OR
Appoint a panel of doctors for his examination or ask him to go to a government hospital for a complete health check-up and find out the cause of his serious illness. (While doing so, I would advise you to ask him to do so at the organization's cost so that he cannot claim non-availability of funds to go ahead for such an examination).
Take reports of the examination of his illness (if he is actually ill) and the period required for rest. Also, check with the doctor when, according to them, he will be fit to resume his duty. Will his fitness affect his performance, and what would be the impact of his reduced performance if he resumes his duty?
If he is diagnosed genuinely, then your organization will have to take a stand on the future course of action. It will depend on lots of factors like his past performance, his value in the organization, his role, if his absence will affect performance and growth of the organization, do you have other competent employees to handle his role, etc. Also, factor in this situation that if he is fit to resume after rest, what is the role he will play when he rejoins. This is where HR and management roles will be critical.
If, as mentioned in your mail, he is frustrated, has the HR and senior management done anything to understand his reasons for frustration and given him advice if required in writing? Can he be transferred to another department without affecting his performance (if he is a valuable employee)?
If his reasons for frustration are as mentioned by you in the mail, has he been counseled and made to understand the process and company policy that an employee has to follow? As an employer, you have the right to recruit people whom you feel would be right for a certain position irrespective of his age. Knowledge is critical. This should be made clear to the employee in clear terms. Or was he promised this new role and then the promise not kept?
Whatever you do, it is very critical that you create the required documentation and follow a clear process of natural justice before taking any extreme decision. Follow the path of inclusiveness in such situations.
After taking all these steps, if still, only because of an ego issue, the employee wants to follow his judgment, then you would be right in taking the decision. While doing so, ensure that other staff are also subtly made aware of all your attempts to bring on board so that when you take this extreme decision, other employees will not have a negative attitude towards your organization.
With regards to legal remedies, the best is to consult your organization's lawyer as it will depend on your industry and which acts your business falls under.
Warm regards.
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Visit personally to find out the seriousness and genuineness of his illness.
Contact his doctor under whose supervision he is being treated and is submitting the medical certificates to understand the seriousness and genuineness of his illness with the intention that the organization wants to help him.
OR
Appoint a panel of doctors for his examination or ask him to go to a government hospital for a complete health check-up and find out the cause of his serious illness. (While doing so, I would advise you to ask him to do so at the organization's cost so that he cannot claim non-availability of funds to go ahead for such an examination).
Take reports of the examination of his illness (if he is actually ill) and the period required for rest. Also, check with the doctor when, according to them, he will be fit to resume his duty. Will his fitness affect his performance, and what would be the impact of his reduced performance if he resumes his duty?
If he is diagnosed genuinely, then your organization will have to take a stand on the future course of action. It will depend on lots of factors like his past performance, his value in the organization, his role, if his absence will affect performance and growth of the organization, do you have other competent employees to handle his role, etc. Also, factor in this situation that if he is fit to resume after rest, what is the role he will play when he rejoins. This is where HR and management roles will be critical.
If, as mentioned in your mail, he is frustrated, has the HR and senior management done anything to understand his reasons for frustration and given him advice if required in writing? Can he be transferred to another department without affecting his performance (if he is a valuable employee)?
If his reasons for frustration are as mentioned by you in the mail, has he been counseled and made to understand the process and company policy that an employee has to follow? As an employer, you have the right to recruit people whom you feel would be right for a certain position irrespective of his age. Knowledge is critical. This should be made clear to the employee in clear terms. Or was he promised this new role and then the promise not kept?
Whatever you do, it is very critical that you create the required documentation and follow a clear process of natural justice before taking any extreme decision. Follow the path of inclusiveness in such situations.
After taking all these steps, if still, only because of an ego issue, the employee wants to follow his judgment, then you would be right in taking the decision. While doing so, ensure that other staff are also subtly made aware of all your attempts to bring on board so that when you take this extreme decision, other employees will not have a negative attitude towards your organization.
With regards to legal remedies, the best is to consult your organization's lawyer as it will depend on your industry and which acts your business falls under.
Warm regards.
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Workman definition is given under section 2 s of the industrial disputes act
From India, Delhi
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From India, Delhi
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Labour law is applicable to the labor class. If proof is required, read the law. Else accept what is being said. But just for the sake of illustration, contribution to ESI and EPF is limited to a certain amount, determining levels. In this case, we are getting unnecessarily tangled in law.
At managerial levels, surely well-designed appointment letters are given to cover all aspects such as leave, discipline, integrity, and pay, etc. So, why not simply refer to those clauses and take action! Procrastination is only harming the company and setting a bad example!
From India, Delhi
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At managerial levels, surely well-designed appointment letters are given to cover all aspects such as leave, discipline, integrity, and pay, etc. So, why not simply refer to those clauses and take action! Procrastination is only harming the company and setting a bad example!
From India, Delhi
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Dear Sir,
Extract of ID Act is appended.Wage limit is now Rs 10,000/-
So the manager in question does not fall under ID Act and labour courts have no jurisdiction on him.He can approach Civil courts.
The Industrial Disputes Act under Section 2(s) defines a “Workman” as–
Any person (including an apprentice) employed in any industry to do any manual, unskilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand sic hundred rupees per mensem or exercises, either by nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
Regards,
Col.Suresh Rathi
From India, Delhi
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Extract of ID Act is appended.Wage limit is now Rs 10,000/-
So the manager in question does not fall under ID Act and labour courts have no jurisdiction on him.He can approach Civil courts.
The Industrial Disputes Act under Section 2(s) defines a “Workman” as–
Any person (including an apprentice) employed in any industry to do any manual, unskilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand sic hundred rupees per mensem or exercises, either by nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
Regards,
Col.Suresh Rathi
From India, Delhi
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