Hello Chitralekha,
Many experts contributing their valuable suggestions about this, but to win the case proofs and documents are required.
Court give result on the basis of proof only and as said nothing is written.
as you mentioned above that you have given the verbal warning many times but nothing well response you got so long by this...
i have a question for you,
have issued the warning letter and termination letter.
the answer is no...
there is step for misconduct or indiscipline.
when an employee found in consecutive misconducting or even indiscipline who always stand apposite to the system, then first give him verbal clarification about their acts and deeds which has been unfavour for your company behalf of that errant employee.
and tell the errant employee if you do it again then indiscipline action may be taken against you and your service may be terminated.
if he show it again the misconducting then issue him the first warning letter, specify this guilty his course of action which is unacceptable by the company.
and also specify the outcome of that warning letter.
The management must have the receiving copy of that warning letter which you have issued to the errant employee.that warning latter must be duly signed by the employee.
if he again show indiscipline on work then issue him a final warning letter,
clear the reason for terminating him from the service....
take the receiving of warning letter.
and paste with his full and final settlement and no dues slip.
In that case , it is quite necessary to prepare the HR Policy..
as you mentioned in your appointment letter if the employee found in misconducting and indiscipline no notice pay will be given to employee... i think this is not solution, somehow it may little bit plus point for you.
but if you could take this action chronological in written form then it would have been better.
I am attaching the HR Policy which contains policy pertaining dismissal, indiscipline, misconduct, suspension etc....
Kindly go with that...
5. Disciplinary Policy
The Company Disciplinary Procedure will be used only when necessary and as a last resort. Where possible, informal and/or formal counselling or other good management practice will be used to resolve matters prior to any disciplinary action being taken. The procedure is intended to be positive rather than punitive but takes cognisance of the fact that sanctions may have to be applied in some circumstances.
An employee can discuss any part of this policy with their Line Manager. They can help clarify an employees rights as well as give guidance and support where it may be needed. Every individual has the right to representation at any point during the disciplinary process.
Suspension
Suspension is not disciplinary action. The purpose of suspension is manifold and can be used when it is necessary to remove a member from the workplace pending an investigation for example, to allow time for a 'cooling down period' for both parties, for their own or others protection, to prevent them influencing or being influenced by others or to prevent possible interference with evidence. Only the Manager in charge of that individual, at that time or their superior, have the authority to suspend an individual.
An employee suspended from duty will receive written confirmation within three days of:
• the reason for the suspension
• the date and time from which the suspension will operate.
the timescale of the ongoing investigation.
Warnings
Examples of Minor Misconduct
Below are listed examples of misconduct which may warrant either a Verbal Warning or a First Written Warning. It is stressed however that this list is not exhaustive and that on all occasions a full and proper investigation must take place prior to the issue of a warning.
• Persistent lateness and poor time-keeping.
• Absence from work, including going absent during work, without valid reason, notification or authorisation.
• Smoking within unauthorised areas.
• Failure to work in accordance with prescribed procedures.
• Incompetence.
• Unreasonable standards of dress or personal hygiene.
• Failure to observe Company regulations and procedures.
Verbal Warning
A Verbal Warning is appropriate when it is necessary for the manager in charge to take action against an employee for any minor failing or minor misconduct.
First Written Warning
A First Written Warning is appropriate when:
• a verbal warning has not been heeded and the misconduct is either repeated or performance has not improved as previously agreed.
• an offence is of a more serious nature for which a written warning is more appropriate.
• the recurrence or accumulation of an offence/offences, if left, will lead to more severe disciplinary action.
Examples of Gross – Misconduct
Listed below are examples of misconduct which may be considered to be Gross Misconduct and may warrant a Final Warning, Demotion or Dismissal. It is stressed however that this list is not exhaustive and that on all occasions a full and proper investigation must take place prior to the issuing of a Final Warning, Demotion or Dismissal.
• Theft, including unauthorised possession of Company property.
• Breaches of confidentiality, prejudicial to the interest of the Company,
• Being unfit for duty because of the misuse/consumption of drugs or alcohol.
• Refusal to carry out a management instruction which is within the individuals capabilities and which would be seen to be in the interests of the Company.
• Breach of confidentiality / security procedures.
• Physical assault, breach of the peace or verbal abuse.
• False declaration of qualifications or professional registration.
• Failure to observe Company rules, regulations or procedures.
• Wilful damage of property at work.
• Incompetence or failure to apply sound professional judgement.
Final Written Warning
A Final Written Warning is appropriate when:
• an employee's offence is of a serious nature falling just short of one justifying dismissal.
• an employee persists in the misconduct which previously warranted a lesser warning.
Dismissal
Dismissal is appropriate when
• an employee's behaviour is considered to be Gross Misconduct.
• an employees misconduct has persisted, exhausting all other lines of disciplinary procedure.
Letter of Warning
All Warnings must contain the following information
• The letter must be issued within 7 days of the date of the disciplinary hearing.
• The nature of the offence and where appropriate, that if further misconduct occurs, more severe disciplinary action will be taken.
• The period of time given to the employee for improvement.
• The employees right to appeal to the manager directly above that of the one issuing the warning.
• A copy of the warning and any supporting documentation must be attached to the individuals personnel file.
• The employee must also receive a copy of the warning which in the case of any written warning will be sent to their home address by recorded delivery if not handed to them in person.
• In the case of a final written warning, reference must be made to the fact that any further misconduct will lead to dismissal, and that the employee has the right of appeal, and to who they can make that appeal.
The letter confirming dismissal will contain the following information:
• The reason for dismissal and any administrative matter arising from the termination of their employment.
Thanks
Regards
Vikas Khatter
From India, Chandigarh
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144Many experts contributing their valuable suggestions about this, but to win the case proofs and documents are required.
Court give result on the basis of proof only and as said nothing is written.
as you mentioned above that you have given the verbal warning many times but nothing well response you got so long by this...
i have a question for you,
have issued the warning letter and termination letter.
the answer is no...
there is step for misconduct or indiscipline.
when an employee found in consecutive misconducting or even indiscipline who always stand apposite to the system, then first give him verbal clarification about their acts and deeds which has been unfavour for your company behalf of that errant employee.
and tell the errant employee if you do it again then indiscipline action may be taken against you and your service may be terminated.
if he show it again the misconducting then issue him the first warning letter, specify this guilty his course of action which is unacceptable by the company.
and also specify the outcome of that warning letter.
The management must have the receiving copy of that warning letter which you have issued to the errant employee.that warning latter must be duly signed by the employee.
if he again show indiscipline on work then issue him a final warning letter,
clear the reason for terminating him from the service....
take the receiving of warning letter.
and paste with his full and final settlement and no dues slip.
In that case , it is quite necessary to prepare the HR Policy..
as you mentioned in your appointment letter if the employee found in misconducting and indiscipline no notice pay will be given to employee... i think this is not solution, somehow it may little bit plus point for you.
but if you could take this action chronological in written form then it would have been better.
I am attaching the HR Policy which contains policy pertaining dismissal, indiscipline, misconduct, suspension etc....
Kindly go with that...
5. Disciplinary Policy
The Company Disciplinary Procedure will be used only when necessary and as a last resort. Where possible, informal and/or formal counselling or other good management practice will be used to resolve matters prior to any disciplinary action being taken. The procedure is intended to be positive rather than punitive but takes cognisance of the fact that sanctions may have to be applied in some circumstances.
An employee can discuss any part of this policy with their Line Manager. They can help clarify an employees rights as well as give guidance and support where it may be needed. Every individual has the right to representation at any point during the disciplinary process.
Suspension
Suspension is not disciplinary action. The purpose of suspension is manifold and can be used when it is necessary to remove a member from the workplace pending an investigation for example, to allow time for a 'cooling down period' for both parties, for their own or others protection, to prevent them influencing or being influenced by others or to prevent possible interference with evidence. Only the Manager in charge of that individual, at that time or their superior, have the authority to suspend an individual.
An employee suspended from duty will receive written confirmation within three days of:
• the reason for the suspension
• the date and time from which the suspension will operate.
the timescale of the ongoing investigation.
Warnings
Examples of Minor Misconduct
Below are listed examples of misconduct which may warrant either a Verbal Warning or a First Written Warning. It is stressed however that this list is not exhaustive and that on all occasions a full and proper investigation must take place prior to the issue of a warning.
• Persistent lateness and poor time-keeping.
• Absence from work, including going absent during work, without valid reason, notification or authorisation.
• Smoking within unauthorised areas.
• Failure to work in accordance with prescribed procedures.
• Incompetence.
• Unreasonable standards of dress or personal hygiene.
• Failure to observe Company regulations and procedures.
Verbal Warning
A Verbal Warning is appropriate when it is necessary for the manager in charge to take action against an employee for any minor failing or minor misconduct.
First Written Warning
A First Written Warning is appropriate when:
• a verbal warning has not been heeded and the misconduct is either repeated or performance has not improved as previously agreed.
• an offence is of a more serious nature for which a written warning is more appropriate.
• the recurrence or accumulation of an offence/offences, if left, will lead to more severe disciplinary action.
Examples of Gross – Misconduct
Listed below are examples of misconduct which may be considered to be Gross Misconduct and may warrant a Final Warning, Demotion or Dismissal. It is stressed however that this list is not exhaustive and that on all occasions a full and proper investigation must take place prior to the issuing of a Final Warning, Demotion or Dismissal.
• Theft, including unauthorised possession of Company property.
• Breaches of confidentiality, prejudicial to the interest of the Company,
• Being unfit for duty because of the misuse/consumption of drugs or alcohol.
• Refusal to carry out a management instruction which is within the individuals capabilities and which would be seen to be in the interests of the Company.
• Breach of confidentiality / security procedures.
• Physical assault, breach of the peace or verbal abuse.
• False declaration of qualifications or professional registration.
• Failure to observe Company rules, regulations or procedures.
• Wilful damage of property at work.
• Incompetence or failure to apply sound professional judgement.
Final Written Warning
A Final Written Warning is appropriate when:
• an employee's offence is of a serious nature falling just short of one justifying dismissal.
• an employee persists in the misconduct which previously warranted a lesser warning.
Dismissal
Dismissal is appropriate when
• an employee's behaviour is considered to be Gross Misconduct.
• an employees misconduct has persisted, exhausting all other lines of disciplinary procedure.
Letter of Warning
All Warnings must contain the following information
• The letter must be issued within 7 days of the date of the disciplinary hearing.
• The nature of the offence and where appropriate, that if further misconduct occurs, more severe disciplinary action will be taken.
• The period of time given to the employee for improvement.
• The employees right to appeal to the manager directly above that of the one issuing the warning.
• A copy of the warning and any supporting documentation must be attached to the individuals personnel file.
• The employee must also receive a copy of the warning which in the case of any written warning will be sent to their home address by recorded delivery if not handed to them in person.
• In the case of a final written warning, reference must be made to the fact that any further misconduct will lead to dismissal, and that the employee has the right of appeal, and to who they can make that appeal.
The letter confirming dismissal will contain the following information:
• The reason for dismissal and any administrative matter arising from the termination of their employment.
Thanks
Regards
Vikas Khatter
From India, Chandigarh
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Hi Chitrlekha,
I have gone through your mail and other members' comments. Considering the facts of the case, you should pay him three months' notice pay (if it is mentioned in the appointment letter (service conditions)). Since management took the decision not to disclose the reason, you also did not follow the required procedure to deal with misconduct. Hence, any claim that he was terminated on account of misconduct is not justified, and it will go against the company in the eyes of the law.
The wise decision is to pay him the required notice pay and have a procedure in place to deal with misconduct in the organization for future cases.
Regards,
Shailesh Parikh
Vadodara, Gujarat
99 98 97 10 65
From India, Mumbai
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I have gone through your mail and other members' comments. Considering the facts of the case, you should pay him three months' notice pay (if it is mentioned in the appointment letter (service conditions)). Since management took the decision not to disclose the reason, you also did not follow the required procedure to deal with misconduct. Hence, any claim that he was terminated on account of misconduct is not justified, and it will go against the company in the eyes of the law.
The wise decision is to pay him the required notice pay and have a procedure in place to deal with misconduct in the organization for future cases.
Regards,
Shailesh Parikh
Vadodara, Gujarat
99 98 97 10 65
From India, Mumbai
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Hi Chitralekha,
I strongly agree with Mr. Naveneet Sarin and other members who are saying to give him his dues and close the case here. For the future, be ready with all the policies and procedures.
Thanks,
Preeti
From India, Bangalore
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I strongly agree with Mr. Naveneet Sarin and other members who are saying to give him his dues and close the case here. For the future, be ready with all the policies and procedures.
Thanks,
Preeti
From India, Bangalore
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dear chtra, better you change the appointment letter.when you remove him on misconduct he should be heard. displanary procedure should have been followed in this case
From India, Hyderabad
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From India, Hyderabad
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Hi Chitralekha,
As you have mentioned that you had sent him a letter which he didn't accept and also your Pune COO has sent an email to management on the same day about not accepting the said letter, both of these are proofs from your side and prove that the concerned terminated employee was not following the processes.
Additionally, the team who was working under him can be presented in court as proof of misconduct and misbehavior. Since you mentioned that you wanted him terminated, I hope you might have prepared a termination letter with the actual case. If you have prepared that original letter, you can use that as proof as well.
Do your letters have a reference number, i.e., date and numbers for reference? If they do, then your problem is solved. If you want to teach such people a lesson, you can contact his current employer and inform them about the situation with relevant proof.
From India, Mumbai
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As you have mentioned that you had sent him a letter which he didn't accept and also your Pune COO has sent an email to management on the same day about not accepting the said letter, both of these are proofs from your side and prove that the concerned terminated employee was not following the processes.
Additionally, the team who was working under him can be presented in court as proof of misconduct and misbehavior. Since you mentioned that you wanted him terminated, I hope you might have prepared a termination letter with the actual case. If you have prepared that original letter, you can use that as proof as well.
Do your letters have a reference number, i.e., date and numbers for reference? If they do, then your problem is solved. If you want to teach such people a lesson, you can contact his current employer and inform them about the situation with relevant proof.
From India, Mumbai
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Dear Friend,
In my opinion, you are not legally strong enough to fight back as you have not followed the proper procedure required in the case of misconduct. It's blatant to mention the reason for someone's termination. The person is smart enough that he pleaded to not disclose the reason in his termination letter, and you did the same.
As Mr. Sajid said, you must have taken the apology in writing as proof, which was not done. So, as a matter of fact, you need to pay him three months of salary as stated in the appointment letter.
From India, Delhi
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In my opinion, you are not legally strong enough to fight back as you have not followed the proper procedure required in the case of misconduct. It's blatant to mention the reason for someone's termination. The person is smart enough that he pleaded to not disclose the reason in his termination letter, and you did the same.
As Mr. Sajid said, you must have taken the apology in writing as proof, which was not done. So, as a matter of fact, you need to pay him three months of salary as stated in the appointment letter.
From India, Delhi
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Hello Chtralekha,
As discussed above by Govind Singh Negi, not accepting the letter itself is an indisciplinary act. Even if he has not received the letter, HR could have sent the same to his correspondence address through AD registered post. Anyways, you can keep this in mind for the future.
I am not aware of the notice period mentioned in the appointment letter. If it is one month, then the employee has no right to ask for 3 months' notice pay. But, if the notice period mentioned in the appointment letter is 3 months and the company has paid him only one month's salary, then he can claim so.
It is the best suggestion in all posts. So, my dear, try to understand that it is true that he is not covered under the Compensation Act.
I can understand this is a serious misconduct and no notice pay is applicable, but you do not have any evidence against that employee. Secondly, if you issue a legal letter and other legal formalities, these can be denied by a civil court due to the absence of evidence. The employee can refuse all these. So, pay him three months' notice and avoid future problems. Because the current legal formalities may be considered as a manipulation of the company for the interest of saving money on notice.
Thanks
From India, New Delhi
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As discussed above by Govind Singh Negi, not accepting the letter itself is an indisciplinary act. Even if he has not received the letter, HR could have sent the same to his correspondence address through AD registered post. Anyways, you can keep this in mind for the future.
I am not aware of the notice period mentioned in the appointment letter. If it is one month, then the employee has no right to ask for 3 months' notice pay. But, if the notice period mentioned in the appointment letter is 3 months and the company has paid him only one month's salary, then he can claim so.
It is the best suggestion in all posts. So, my dear, try to understand that it is true that he is not covered under the Compensation Act.
I can understand this is a serious misconduct and no notice pay is applicable, but you do not have any evidence against that employee. Secondly, if you issue a legal letter and other legal formalities, these can be denied by a civil court due to the absence of evidence. The employee can refuse all these. So, pay him three months' notice and avoid future problems. Because the current legal formalities may be considered as a manipulation of the company for the interest of saving money on notice.
Thanks
From India, New Delhi
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Dear All,
In my view, he is a conniving individual who is constantly in conflict with the company. The following are actions that should not be taken against him:
1. You should not prepare any evidence against him.
2. You should not issue any memo for his misconduct and misbehavior.
3. You should not conduct any domestic inquiry against him.
4. You should not collect any evidence/written letter from his juniors.
If the management decides to go to court or conciliation, he may win with his persuasive speech. As a suggestion, the HR person should try to negotiate a settlement with him as this could be a better solution. If the HR person is not capable of maintaining strong employee relations, the management should consider seeking assistance from a legal consultant.
With regards,
Mohan J
From India, Chennai
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In my view, he is a conniving individual who is constantly in conflict with the company. The following are actions that should not be taken against him:
1. You should not prepare any evidence against him.
2. You should not issue any memo for his misconduct and misbehavior.
3. You should not conduct any domestic inquiry against him.
4. You should not collect any evidence/written letter from his juniors.
If the management decides to go to court or conciliation, he may win with his persuasive speech. As a suggestion, the HR person should try to negotiate a settlement with him as this could be a better solution. If the HR person is not capable of maintaining strong employee relations, the management should consider seeking assistance from a legal consultant.
With regards,
Mohan J
From India, Chennai
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Hi Chitralekha,
Reply to his notice giving step-by-step the instances that took place which resulted in his termination. Also, include that you have due witnesses and proofs to prove his misconduct and misbehavior. This will put an end to his pursuing the case further.
In the future, remember to follow the process and ensure that every verbal warning is followed by a written communication, a copy of which should go into the personal file of the employee.
All the Best,
Richa
From India, Pune
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Reply to his notice giving step-by-step the instances that took place which resulted in his termination. Also, include that you have due witnesses and proofs to prove his misconduct and misbehavior. This will put an end to his pursuing the case further.
In the future, remember to follow the process and ensure that every verbal warning is followed by a written communication, a copy of which should go into the personal file of the employee.
All the Best,
Richa
From India, Pune
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Dear Chitraleka,
I agree with your co-worker and other comments supporting the termination in the forum, but as someone in the Human Resource department, keeping humanity in mind, since he is begging on his knees not to mention the reason in the termination letter, you could have requested resignation and closed the matter. Now, you have invited the employee to go to court. Why can't you understand that you should have closed the profile then and there, instead of engaging in unproductive work for such issues? Moreover, the company will not gain anything from this. If the employee wins, you will have to pay him the notice period, or if you win, you are just wasting your time.
Keeping in mind to do some productive work, the management was right in this issue. Close the file and hire a new one... that's all.
Ravindra
HR - Bangalore
From India, Hyderabad
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I agree with your co-worker and other comments supporting the termination in the forum, but as someone in the Human Resource department, keeping humanity in mind, since he is begging on his knees not to mention the reason in the termination letter, you could have requested resignation and closed the matter. Now, you have invited the employee to go to court. Why can't you understand that you should have closed the profile then and there, instead of engaging in unproductive work for such issues? Moreover, the company will not gain anything from this. If the employee wins, you will have to pay him the notice period, or if you win, you are just wasting your time.
Keeping in mind to do some productive work, the management was right in this issue. Close the file and hire a new one... that's all.
Ravindra
HR - Bangalore
From India, Hyderabad
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Compensation payable under Employees Compensation Act even in case of negligence - SC 4.2.2016.pdf
Case studies on R & S.doc