Dear Sir,
If employees are on an illegal strike for more than 90 days, can we terminate them on the basis of absenteeism without prior intimation? If yes, then please share some procedure and format.
Regards,
Vrushy
From India, Nasik
Acknowledge(0)
Amend(0)
11If employees are on an illegal strike for more than 90 days, can we terminate them on the basis of absenteeism without prior intimation? If yes, then please share some procedure and format.
Regards,
Vrushy
From India, Nasik
Acknowledge(0)Amend(0)
As Mrugen has rightly said, before coming to any conclusion, call all the employees or their representatives, ask for their demands and the reasons for the illegal strike, and resolve the issue amicably across the table. Please ensure that a management representative/decision-maker accompanies you. Also, check whether they have formed any union.
From India, Ahmadabad
Acknowledge(0)Amend(0)
From India, Ahmadabad
Acknowledge(0)Amend(0)
Dear Vrushy ji,
In the ID Act, there is a provision for penalties under Chapter VI. Section 26 deals with penalties for illegal strikes/lockouts. The ID Act does not specify anything regarding punishment by way of dismissal. However, there are some case laws on this subject.
In the case of Bata Vs. DM Ganguly 1961 I LLJ 303, it was highlighted that participation in an illegal strike may not necessarily, in every case, be punished with dismissal. If an inquiry has been conducted properly and the employer has imposed the punishment of dismissal, interference should not occur unless unfair labor practices or victimization against the employee are found.
Experts are requested to provide comments.
From India, Mumbai
Acknowledge(0)Amend(0)
In the ID Act, there is a provision for penalties under Chapter VI. Section 26 deals with penalties for illegal strikes/lockouts. The ID Act does not specify anything regarding punishment by way of dismissal. However, there are some case laws on this subject.
In the case of Bata Vs. DM Ganguly 1961 I LLJ 303, it was highlighted that participation in an illegal strike may not necessarily, in every case, be punished with dismissal. If an inquiry has been conducted properly and the employer has imposed the punishment of dismissal, interference should not occur unless unfair labor practices or victimization against the employee are found.
Experts are requested to provide comments.
From India, Mumbai
Acknowledge(0)Amend(0)
Dear Vrushy,
Yes, you can terminate the employee, but you have to follow the principles of natural justice by conducting a domestic inquiry. Please check whether the employee is a protected workman or not.
From India, Velluru
Acknowledge(0)Amend(0)
Yes, you can terminate the employee, but you have to follow the principles of natural justice by conducting a domestic inquiry. Please check whether the employee is a protected workman or not.
From India, Velluru
Acknowledge(0)Amend(0)
Dear Vrushy,
From your question, one thing is not clear, i.e., how can a single person be called to be on an illegal strike continuously for 90 days without giving any notice or application stating his grievances which he demands to be redressed.
What I understand is that the employee is an individual, not a group. The employee is a permanent employee. If so, he may be said to be on unauthorized absence. In such a case, you have to give him at least 2 chances to explain the reasons for his such prolonged absence. Both letters are to be sent under Regd. or Speed Post, giving a reasonable gap between the two, to his Home Address available with the Company. If no reply is received within the given period limit (say 15 days of receipt of the letter), an Inquiry Committee may be constituted by the Disciplinary Authority, and a Final Notice to the erring employee to report for duty within 15 days may be sent, clearly stating that failing to do so will result in the inquiry proceedings being decided Ex-parte, without any further reference.
After observing these formalities of "Natural Justice," the Disciplinary Authority may ask the I.O. to conclude the inquiry proceedings Ex-Parte, giving his findings/conclusion. Then the D.A. may order for termination, and the Order may be issued under his signature accordingly.
Best wishes.
AK Jain
HR Personnel, NCL, CIL
From India, New+Delhi
Acknowledge(0)Amend(0)
From your question, one thing is not clear, i.e., how can a single person be called to be on an illegal strike continuously for 90 days without giving any notice or application stating his grievances which he demands to be redressed.
What I understand is that the employee is an individual, not a group. The employee is a permanent employee. If so, he may be said to be on unauthorized absence. In such a case, you have to give him at least 2 chances to explain the reasons for his such prolonged absence. Both letters are to be sent under Regd. or Speed Post, giving a reasonable gap between the two, to his Home Address available with the Company. If no reply is received within the given period limit (say 15 days of receipt of the letter), an Inquiry Committee may be constituted by the Disciplinary Authority, and a Final Notice to the erring employee to report for duty within 15 days may be sent, clearly stating that failing to do so will result in the inquiry proceedings being decided Ex-parte, without any further reference.
After observing these formalities of "Natural Justice," the Disciplinary Authority may ask the I.O. to conclude the inquiry proceedings Ex-Parte, giving his findings/conclusion. Then the D.A. may order for termination, and the Order may be issued under his signature accordingly.
Best wishes.
AK Jain
HR Personnel, NCL, CIL
From India, New+Delhi
Acknowledge(0)Amend(0)
Dear Vrushy,
If only one employee is not coming to work i.e. absence without prior approval, please check the terms and conditions of the appointment letter. I am sure it would have been mentioned in the letter. If not, please follow the process mentioned by Mr. AK Jain, sending communication to the individual through registered post. Send two communications giving sufficient time to respond, i.e., one week on receipt of the letter, and please do mention in the second communication clearly that if he is not responding, his employment with the organization will stand cancelled/terminated. Then send a third communication with a termination letter.
As you have not clearly mentioned about your organization, the above you may implement in case your organization is registered under S&E Act. If you are working for an Industry, the process mentioned by Mr. AK Jain would be applicable as per the Industrial Disputes Act.
Thanks,
Srinu Kumar
From India, Hyderabad
Acknowledge(0)Amend(0)
If only one employee is not coming to work i.e. absence without prior approval, please check the terms and conditions of the appointment letter. I am sure it would have been mentioned in the letter. If not, please follow the process mentioned by Mr. AK Jain, sending communication to the individual through registered post. Send two communications giving sufficient time to respond, i.e., one week on receipt of the letter, and please do mention in the second communication clearly that if he is not responding, his employment with the organization will stand cancelled/terminated. Then send a third communication with a termination letter.
As you have not clearly mentioned about your organization, the above you may implement in case your organization is registered under S&E Act. If you are working for an Industry, the process mentioned by Mr. AK Jain would be applicable as per the Industrial Disputes Act.
Thanks,
Srinu Kumar
From India, Hyderabad
Acknowledge(0)Amend(0)
Dear Vrushi,
Please let us know whether you received the order from the Industrial Court declaring the strike as illegal. If yes, then was the strike withdrawn immediately within 24 hours? If so, then it will not be considered an illegal strike.
Participating in an illegal strike will not amount to dismissal, which would be a harsh punishment. All the charges such as indiscipline, disobeying legal orders of superiors, threatening co-employees, destroying/sabotaging the company's property, etc., need to be consolidated.
You should issue the chargesheet, conduct a domestic inquiry, and observe the principles of natural justice. Provide the concerned employees a chance to defend themselves, issue the inquiry report to them, and then a second show cause notice.
Following the direction of the management, you can then issue a dismissal order for the concerned employees.
Regards,
Avinash K.
From India, Mumbai
Acknowledge(0)Amend(0)
Please let us know whether you received the order from the Industrial Court declaring the strike as illegal. If yes, then was the strike withdrawn immediately within 24 hours? If so, then it will not be considered an illegal strike.
Participating in an illegal strike will not amount to dismissal, which would be a harsh punishment. All the charges such as indiscipline, disobeying legal orders of superiors, threatening co-employees, destroying/sabotaging the company's property, etc., need to be consolidated.
You should issue the chargesheet, conduct a domestic inquiry, and observe the principles of natural justice. Provide the concerned employees a chance to defend themselves, issue the inquiry report to them, and then a second show cause notice.
Following the direction of the management, you can then issue a dismissal order for the concerned employees.
Regards,
Avinash K.
From India, Mumbai
Acknowledge(0)Amend(0)
A case for action against striking employees will survive only when the strike is illegal. You cannot take action for participating in a legal strike. Who declared the strike illegal? If the strike is declared illegal, even then you cannot directly terminate the services of workmen. You need to serve charge sheets on the employees concerned and conduct a departmental inquiry, as some learned members above suggested, to prove their guilt. Even then, the penalty of dismissal for mere participation in a strike may not be considered proportionate unless it is coupled with some violence or gross violation of discipline, as Avinash said. Further, you must have some evidence that the employees are continuing the strike despite your request to resume duties.
A strike is a slippery path, and one should walk carefully on it. When employees in concert go on strike, it is an industrial relations problem. You need to assess the feasibility of conducting domestic inquiries en masse and the consequences of initiating disciplinary action against so many employees at a time on production, probable security issues, and future litigation, etc. Please do your groundwork well since any extreme action in such cases may lead to litigation.
B. Saikumar
Navi Mumbai
From India, Mumbai
Acknowledge(0)Amend(0)
A strike is a slippery path, and one should walk carefully on it. When employees in concert go on strike, it is an industrial relations problem. You need to assess the feasibility of conducting domestic inquiries en masse and the consequences of initiating disciplinary action against so many employees at a time on production, probable security issues, and future litigation, etc. Please do your groundwork well since any extreme action in such cases may lead to litigation.
B. Saikumar
Navi Mumbai
From India, Mumbai
Acknowledge(0)Amend(0)
Dear,
For a legal strike, you have to wait until a court decision is reached. Management cannot take any action while the matter is in court. Regarding an illegal strike, management can take action on the grounds of absenteeism.
As experts state, following the principles of natural justice is true and mandatory because ample opportunity must be given to the employee. In terms of termination, a domestic inquiry is a must. Based on the findings provided by the inquiry officer, management can decide on dismissal.
Thank you.
Deepak M.
From India, Thana
Acknowledge(0)Amend(0)
For a legal strike, you have to wait until a court decision is reached. Management cannot take any action while the matter is in court. Regarding an illegal strike, management can take action on the grounds of absenteeism.
As experts state, following the principles of natural justice is true and mandatory because ample opportunity must be given to the employee. In terms of termination, a domestic inquiry is a must. Based on the findings provided by the inquiry officer, management can decide on dismissal.
Thank you.
Deepak M.
From India, Thana
Acknowledge(0)Amend(0)Engage with peers to discuss and resolve work and business challenges collaboratively - share and document your knowledge. Our AI-powered platform, features real-time fact-checking, peer reviews, and an extensive historical knowledge base. - Join & Be Part Of Our Community.
Employee Termination during covid 19.pdf
Employee Appraisal Form new.doc