Hi - I wanted to know how one can terminate services of contract worker in case of absentism/invocating other workers not to work. is there any notice to be given to worker or he can be verbally told not to come and full and final is given.
From India, Chandigarh
From India, Chandigarh
If he /she is through contractor ask the contractor to stop the services of the above said " He/She "
From India, Pune
46From India, Pune
Hi,
The issue needs to be handled methodically.
The terminated person may raise legal proceedings against both the principal employer and the contractor.
Please follow the steps mentioned hereunder.
In case of absenteism: a) Sufficient records need to be built up by the contractor showing the earlier instances of abesenteism, the memos' warning issued, show cause notices issued if any. And of course the records of the domestic enquiry.
b) In case of provoking others not work: As this amounts to gross misconduct a sytematic enquiry need be followed with all pre and post requsites and then the termination can follow.
Kind regards
Dayanand L Guddin
From Singapore, Singapore
The issue needs to be handled methodically.
The terminated person may raise legal proceedings against both the principal employer and the contractor.
Please follow the steps mentioned hereunder.
In case of absenteism: a) Sufficient records need to be built up by the contractor showing the earlier instances of abesenteism, the memos' warning issued, show cause notices issued if any. And of course the records of the domestic enquiry.
b) In case of provoking others not work: As this amounts to gross misconduct a sytematic enquiry need be followed with all pre and post requsites and then the termination can follow.
Kind regards
Dayanand L Guddin
From Singapore, Singapore
Dear Navin,
If there is a Tripartite Agreement (Prinicipal Employer, Contractor and Union of Contract Workers), Service Agreement, Work Order or Certified Standing Orders in place and there are clauses dealing with Termination of Contract Workers, then the same is to be followed.
In absence of the above the following is suggested:
1. The Contract Worker is not your employee so the right of termination lies with the Contractor and not the Principal Employer.
2. The Principal Employer has the right to debar a Contract Worker from entering the premises of the Company and/or ask the Labour Contractor for replacement.
3. It is upto the Contractor(Immediate Employer) to decide whether he is going to terminate the services of the worker or employ him in other Organisation/work.
Regards,
SC
From India, Thane
If there is a Tripartite Agreement (Prinicipal Employer, Contractor and Union of Contract Workers), Service Agreement, Work Order or Certified Standing Orders in place and there are clauses dealing with Termination of Contract Workers, then the same is to be followed.
In absence of the above the following is suggested:
1. The Contract Worker is not your employee so the right of termination lies with the Contractor and not the Principal Employer.
2. The Principal Employer has the right to debar a Contract Worker from entering the premises of the Company and/or ask the Labour Contractor for replacement.
3. It is upto the Contractor(Immediate Employer) to decide whether he is going to terminate the services of the worker or employ him in other Organisation/work.
Regards,
SC
From India, Thane
As stated by swastic, since there exists no legal relationship between the principal employer and the worker engaged through a contractor, you can not take any disciplinary proceeding against him. You can direct the contractor that that worker should not be sent to your work place.
At the same time, if you issue memos or charge sheet and initiate disciplinary action against an employee engaged through contractor, the same will put you, ie, the principal employer, in trouble because the act of issuing charge sheet and initiating disciplinary action against an outsourced employee is an evidence of existence of 'direct control' by the principal employer over the contract worker and if the workers engaged through a contractor are able to prove that they have been directly supervised by the principal employer then the contract will be deemed to be a sham contract. The consequence of a sham contract is that the employees of contractor would become eligible for permanency or regularisation of service with principal employer.
Therefore, inform the contractor of his bad performance or habitual absenteeism and ask the contractor to take him out of your plant.
Now, one more advice in a different perspective. By contract employee if you mean an employee appointed for a fixed term, then he is a direct employee of yours and the situation in that case will be different. In such cases, if the fixed term for which he is appointed is say one year, you have to issue memo before discharging him for misconduct. Certainly, you can terminate his services without any show cause notice or disciplinary action on the expiry of the term for which he is appointed.
Regards,
Madhu.T.K
From India, Kannur
At the same time, if you issue memos or charge sheet and initiate disciplinary action against an employee engaged through contractor, the same will put you, ie, the principal employer, in trouble because the act of issuing charge sheet and initiating disciplinary action against an outsourced employee is an evidence of existence of 'direct control' by the principal employer over the contract worker and if the workers engaged through a contractor are able to prove that they have been directly supervised by the principal employer then the contract will be deemed to be a sham contract. The consequence of a sham contract is that the employees of contractor would become eligible for permanency or regularisation of service with principal employer.
Therefore, inform the contractor of his bad performance or habitual absenteeism and ask the contractor to take him out of your plant.
Now, one more advice in a different perspective. By contract employee if you mean an employee appointed for a fixed term, then he is a direct employee of yours and the situation in that case will be different. In such cases, if the fixed term for which he is appointed is say one year, you have to issue memo before discharging him for misconduct. Certainly, you can terminate his services without any show cause notice or disciplinary action on the expiry of the term for which he is appointed.
Regards,
Madhu.T.K
From India, Kannur
Madhu Sir, in the last para you said about the fixed term; even during this period, if any contract emplyee creates similar issues, should principal employer wait until his / her term completes or can principal employer directly involve (being direct employee as you said) or get the contractor involve directly for replacement or termination. seek your input.
Suresh
From India, Pune
Suresh
From India, Pune
Naveen ,
I am too agree with Mr. Madhu, Unless you have Employee employer relation ship U cant take any action against him / her .
on the contrary if U do so you are accepting he is your Regular employee , in that case Contractor will be free from his responcibility.
D V Gosavi
From India, Pune
I am too agree with Mr. Madhu, Unless you have Employee employer relation ship U cant take any action against him / her .
on the contrary if U do so you are accepting he is your Regular employee , in that case Contractor will be free from his responcibility.
D V Gosavi
From India, Pune
Dear Madhu,
Very useful and appropriate comments on the subject. Please let me know "SHAM" contract....
Can anyone is having an idea.. in my plant dueto union problem we hv stopped operating the plant for some time... for this do we need to pur a written notice at the Gate.... If we put then what will be the legal matters involved in this... which all govt. authorities I hv to send a copy of the notice...
Regards,
Supriya
From India, Calcutta
Very useful and appropriate comments on the subject. Please let me know "SHAM" contract....
Can anyone is having an idea.. in my plant dueto union problem we hv stopped operating the plant for some time... for this do we need to pur a written notice at the Gate.... If we put then what will be the legal matters involved in this... which all govt. authorities I hv to send a copy of the notice...
Regards,
Supriya
From India, Calcutta
Dear Group, What if we add this clause in the appointment letter of contract employer. Can we terminate him/her with immediate effect.
From India, Hyderabad
From India, Hyderabad
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