Dear HR Fraternity,
We have a case at hand wherein a worker used extremely offensive language against a senior manager on the shop floor. The worker was immediately placed under suspension (pending inquiry). An investigation was conducted, and the worker was found guilty. Now, the question arises: can an employee be dismissed from service for this misconduct, and would it be considered harsh or disproportionate given the nature of the offense? Are there any case laws to support the management's decision?
S. MANOHAR
From India, Madras
7We have a case at hand wherein a worker used extremely offensive language against a senior manager on the shop floor. The worker was immediately placed under suspension (pending inquiry). An investigation was conducted, and the worker was found guilty. Now, the question arises: can an employee be dismissed from service for this misconduct, and would it be considered harsh or disproportionate given the nature of the offense? Are there any case laws to support the management's decision?
S. MANOHAR
From India, Madras
Dear Mr. Manohar,
It has been decided in various cases by the court that using abusive language against any superior is a serious misconduct that leads to the dismissal of an employee. The only precaution that has to be taken is that it should be through a proper domestic inquiry in accordance with the procedure of natural justice. Additionally, if your organization has certified standing orders, such misconduct must be mentioned there.
Regards,
Padamnave Parashar
Manager IR
From India, Bhopal
It has been decided in various cases by the court that using abusive language against any superior is a serious misconduct that leads to the dismissal of an employee. The only precaution that has to be taken is that it should be through a proper domestic inquiry in accordance with the procedure of natural justice. Additionally, if your organization has certified standing orders, such misconduct must be mentioned there.
Regards,
Padamnave Parashar
Manager IR
From India, Bhopal
Thank you, Parashar.
I have also seen certain Supreme Court rulings that an employee who has used foul and filthy language cannot be considered as a minor misconduct for lesser punishment. Now, the issue is the employee has realized his misconduct and is applying pressure through the Union for pardoning him and to give a chance, whereas Management is very firm that if this type of misconduct cannot be taken lightly, and it may give a wrong lead to other workers that they can behave in any manner and Management would not take it seriously. Therefore, the Management is absolutely right, and the decision will be enforced. The question is, he claims that only on instigation of the officer he used such language. Will the decision of the Management stand before conciliation in case he raises a dispute under sec 2a of the ID Act.
S. MANOHAR
From India, Madras
I have also seen certain Supreme Court rulings that an employee who has used foul and filthy language cannot be considered as a minor misconduct for lesser punishment. Now, the issue is the employee has realized his misconduct and is applying pressure through the Union for pardoning him and to give a chance, whereas Management is very firm that if this type of misconduct cannot be taken lightly, and it may give a wrong lead to other workers that they can behave in any manner and Management would not take it seriously. Therefore, the Management is absolutely right, and the decision will be enforced. The question is, he claims that only on instigation of the officer he used such language. Will the decision of the Management stand before conciliation in case he raises a dispute under sec 2a of the ID Act.
S. MANOHAR
From India, Madras
Dear Mr. Manohar,
As far as legality is concerned, the management is right and on merit. Shedding light on the circumstances, if management is willing to forgive the employee, it should be expressed to all employees as a caring step of the management, not a result of pressure tactics.
Regards,
Padamnave
From India, Bhopal
As far as legality is concerned, the management is right and on merit. Shedding light on the circumstances, if management is willing to forgive the employee, it should be expressed to all employees as a caring step of the management, not a result of pressure tactics.
Regards,
Padamnave
From India, Bhopal
It depends on his earlier conduct and criticality to your organization.
We had a similar case happening during a very sensitive period. After reading the inquiry report but before proceeding to the courts, the employee himself offered to resign and collect all dues. There was history with this worker, so we thought it was good riddance of bad rubbish.
From India, Pune
We had a similar case happening during a very sensitive period. After reading the inquiry report but before proceeding to the courts, the employee himself offered to resign and collect all dues. There was history with this worker, so we thought it was good riddance of bad rubbish.
From India, Pune
Dear Mr. Manohar,
I found a link on gross misconduct that contains FAQs on the same. Please go through this in case it helps you.
Gross misconduct: 16 FAQs | Law Donut <link updated to site home>
From India, Asansol
I found a link on gross misconduct that contains FAQs on the same. Please go through this in case it helps you.
Gross misconduct: 16 FAQs | Law Donut <link updated to site home>
From India, Asansol
There are court decisions upholding the punishment of dismissal for such disorderly and indecent behaviour. However, you need to ensure that such behaviour falls within the purview of the acts of misconduct specified under your disciplinary rules, and dismissal is also one of the penalties enumerated under the rules/standing orders of the company.
So far as commuting the penalty is concerned, it depends upon the following factors:
1) His past conduct is unblemished, and this is the first instance.
2) His behavior was not intentional but due to provocation from the manager.
3) He is a critical resource, etc.
4) He can be relocated.
5) Suspension itself serves as enough punishment to deter him from such behavior in future.
B. Saikumar
Mumbai.
From India, Mumbai
So far as commuting the penalty is concerned, it depends upon the following factors:
1) His past conduct is unblemished, and this is the first instance.
2) His behavior was not intentional but due to provocation from the manager.
3) He is a critical resource, etc.
4) He can be relocated.
5) Suspension itself serves as enough punishment to deter him from such behavior in future.
B. Saikumar
Mumbai.
From India, Mumbai
Dear Manohar et al,
The question of whether the management would be able to justify itself before the Conciliation Officer should not deter you from taking strong action in the matter. As you have seen, the earlier days of leniency are no longer prevailing in the courts, and there is a realization that if the activities are to continue, then discipline is a must. There cannot be much meaningful activity if everyone is allowed to utter obscenities and abuses against each other, leading to a situation of anarchy. Hence, you have a sufficient case to impose the penalty of dismissal from service.
Regards,
KK
From India, Bhopal
The question of whether the management would be able to justify itself before the Conciliation Officer should not deter you from taking strong action in the matter. As you have seen, the earlier days of leniency are no longer prevailing in the courts, and there is a realization that if the activities are to continue, then discipline is a must. There cannot be much meaningful activity if everyone is allowed to utter obscenities and abuses against each other, leading to a situation of anarchy. Hence, you have a sufficient case to impose the penalty of dismissal from service.
Regards,
KK
From India, Bhopal
Procedural Issues
1. Have you issued a second show-cause notice informing the proposed punishment? This is required more so in the case of dismissals. I suggest that even if your Standing Order is silent about the second show-cause notice, you should follow this procedure.
2. If the employee is dismissed, then he can directly approach the Labor Court and need not go through conciliation. If he goes for conciliation under 2A, the conciliation officer needs to refer the matter for adjudication and cannot reject the reference based on inquiry proceedings.
Practical Issues
1. Has he always been behaving like this? Any previous incidents?
2. What provoked him, and has he taken this plea before the inquiry officer?
3. Has it been proved that there was provocation? If there had been any iota of doubt about provocation in the mind of the inquiry officer, then dismissal will not stand before the Labor Court. Capital punishment is not awarded where there has been provocation.
T. Sivasankaran
From India, Chennai
1. Have you issued a second show-cause notice informing the proposed punishment? This is required more so in the case of dismissals. I suggest that even if your Standing Order is silent about the second show-cause notice, you should follow this procedure.
2. If the employee is dismissed, then he can directly approach the Labor Court and need not go through conciliation. If he goes for conciliation under 2A, the conciliation officer needs to refer the matter for adjudication and cannot reject the reference based on inquiry proceedings.
Practical Issues
1. Has he always been behaving like this? Any previous incidents?
2. What provoked him, and has he taken this plea before the inquiry officer?
3. Has it been proved that there was provocation? If there had been any iota of doubt about provocation in the mind of the inquiry officer, then dismissal will not stand before the Labor Court. Capital punishment is not awarded where there has been provocation.
T. Sivasankaran
From India, Chennai
Dear Manohar & Friends,
The issue at hand is not just disciplinary but also one of its effect on productivity & business through employee morale. Thus, the following guidelines could generally draw the course of action:
Factors To Assess The Crime & Establish Reasons For This Symptomatic Behavior Of An One-Off Incident Or A First Indication Of An Existing Larger Malaise:
(a) Has this been the first instance of the individual's behavior & what level was his earlier behavior.
(b) What were the circumstances and provocations that led to it,
(i) Immediate at the work site.
(ii) In time & space at work.
(iii) In his personal life.
(c) Interpersonal behavior of the employee with other employees and a union if any.
(d) Employee's indispensability to the process/enterprise.
(e) General prevailing emotional environment on the shop floor/office/workplace and among the employees.
(f) Direct/indirect factors that may have created the emotional environs mentioned above and the management's role in its creation.
Process Of Removal If Assessment IF The Individual Is Useless To The Mgt & Shop/Office/Process Floor & Removal Will Serve A Larger Purpose:
(a) Institute an impartial inquiry with members and witnesses from all levels of the concerned department to check all of the above factors & establish the origin of the misconduct by the employee as that of deliberate misconduct/generally uncontrolled emotional behavior/unrepentant first-time irrational behavior causing irrecoverable loss greater than the individual can pay back/bad influence on the progress of the company/etc. on these lines (Generally, these exist in the SOPs of every organization).
(b) Give the individual a show-cause notice within a stipulated period and place him under suspension if required and under company policy to which he should have signed abidance at the time of enrollment.
(c) On receipt of his reply, assess it in light of the assessing factors and decide if it is sufficient or not.
(d) Record/'Minute' the result of the assessment/decision.
(e) Recommend action/approve it from the hierarchy & legal dept if any and if required.
(f) Inform him of the inadequacy of his explanation.
(g) Hand him the termination orders based on all of the above.
Thus, you would have covered all procedural and legal aspects logically sans emotion.
Regards,
Dilip
From India, Pune
The issue at hand is not just disciplinary but also one of its effect on productivity & business through employee morale. Thus, the following guidelines could generally draw the course of action:
Factors To Assess The Crime & Establish Reasons For This Symptomatic Behavior Of An One-Off Incident Or A First Indication Of An Existing Larger Malaise:
(a) Has this been the first instance of the individual's behavior & what level was his earlier behavior.
(b) What were the circumstances and provocations that led to it,
(i) Immediate at the work site.
(ii) In time & space at work.
(iii) In his personal life.
(c) Interpersonal behavior of the employee with other employees and a union if any.
(d) Employee's indispensability to the process/enterprise.
(e) General prevailing emotional environment on the shop floor/office/workplace and among the employees.
(f) Direct/indirect factors that may have created the emotional environs mentioned above and the management's role in its creation.
Process Of Removal If Assessment IF The Individual Is Useless To The Mgt & Shop/Office/Process Floor & Removal Will Serve A Larger Purpose:
(a) Institute an impartial inquiry with members and witnesses from all levels of the concerned department to check all of the above factors & establish the origin of the misconduct by the employee as that of deliberate misconduct/generally uncontrolled emotional behavior/unrepentant first-time irrational behavior causing irrecoverable loss greater than the individual can pay back/bad influence on the progress of the company/etc. on these lines (Generally, these exist in the SOPs of every organization).
(b) Give the individual a show-cause notice within a stipulated period and place him under suspension if required and under company policy to which he should have signed abidance at the time of enrollment.
(c) On receipt of his reply, assess it in light of the assessing factors and decide if it is sufficient or not.
(d) Record/'Minute' the result of the assessment/decision.
(e) Recommend action/approve it from the hierarchy & legal dept if any and if required.
(f) Inform him of the inadequacy of his explanation.
(g) Hand him the termination orders based on all of the above.
Thus, you would have covered all procedural and legal aspects logically sans emotion.
Regards,
Dilip
From India, Pune
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