Hi all,
Can anyone let me know how to terminate / dismiss / suspend a permanent worker who is a member of labour union? He was working in the factory for past 15 years. Management have observed his very low performance / attitude. It is not improving after giving warnings also. Is there any law which is protecting them? or how much we should bear extra as settlement..!
From India, Chennai
148Can anyone let me know how to terminate / dismiss / suspend a permanent worker who is a member of labour union? He was working in the factory for past 15 years. Management have observed his very low performance / attitude. It is not improving after giving warnings also. Is there any law which is protecting them? or how much we should bear extra as settlement..!
From India, Chennai
There is no law which protects a non performing or troublesome trade union leader. The 33(3) of Industrial Disputes Act which deals with protected employee (of a trade union) only says that at the time when a dispute is in pending conciliation before Labour Officer or Courts, disciplinary action can not be taken against a protected labour without permission from the said conciliation officer/ labour court, as the case may be. But in that also, if the disciplinary action is initiated for a misconduct not related to the dispute which is pending before conciliation/ court, action can be taken even if the person is a protected workman.
Therefore, in theory (I would use the word in theory) there is nothing illegal in taking action against a trade union member. But in practice it is very difficult to frame charges against the worker especially when it is related to 'attitude' which is just a non measurable or unquantifiable human behavior. If the charges is like theft, insubordination or smoking inside the factory premises or sleeping while on duty, we have a proof and is quantifiable also, whereas if you say that the attitude of a worker is bad, for some other it may not be that much bad as you think. There may be a number of followers or witnesses in favour of that worker who will say that the attitude is not bad or rather is good. In the eyes of employer/ Manager a worker questioning the service conditions or physical conditions of the factory where the workers are doing their work, will be marked as one having bad attitude but for others it may not be like that.
If you can frame charges on the basis of productivity of the employee, you can do that. You will have to take average out put per worker and should have a comparative study of it with other workers and then come to a conclusion that the union leader has not been giving the required result and on the basis of that you can issue a charge sheet and start disciplinary action. The analysis should be made on the basis of qualification, experience, training given and the grade of the employees. Otherwise the enquiry will become weak and will be treated as an attempt to victimise the union leader who has been part of the company for the last 10 -15 years.
When you initiate disciplinary action against a union leader, you can expect a kind of non cooperation from the workers following him and that may result in further loss of production. These are the practical side of it. I would suggest that you should be more practical and should conduct a lot of home work before dealing with such kind of employees.
Regards,
Madhu.T.K
From India, Kannur
Therefore, in theory (I would use the word in theory) there is nothing illegal in taking action against a trade union member. But in practice it is very difficult to frame charges against the worker especially when it is related to 'attitude' which is just a non measurable or unquantifiable human behavior. If the charges is like theft, insubordination or smoking inside the factory premises or sleeping while on duty, we have a proof and is quantifiable also, whereas if you say that the attitude of a worker is bad, for some other it may not be that much bad as you think. There may be a number of followers or witnesses in favour of that worker who will say that the attitude is not bad or rather is good. In the eyes of employer/ Manager a worker questioning the service conditions or physical conditions of the factory where the workers are doing their work, will be marked as one having bad attitude but for others it may not be like that.
If you can frame charges on the basis of productivity of the employee, you can do that. You will have to take average out put per worker and should have a comparative study of it with other workers and then come to a conclusion that the union leader has not been giving the required result and on the basis of that you can issue a charge sheet and start disciplinary action. The analysis should be made on the basis of qualification, experience, training given and the grade of the employees. Otherwise the enquiry will become weak and will be treated as an attempt to victimise the union leader who has been part of the company for the last 10 -15 years.
When you initiate disciplinary action against a union leader, you can expect a kind of non cooperation from the workers following him and that may result in further loss of production. These are the practical side of it. I would suggest that you should be more practical and should conduct a lot of home work before dealing with such kind of employees.
Regards,
Madhu.T.K
From India, Kannur
Any worker (including trade union member) can be issued with charge sheet for the misconduct and an enquiry can be constituted to probe into the framed charges. However only in the event of punishment of dismissal is awarded & when their is conciliation, dispute is pending, an approval/permission is required as the case may be.
Dismissal of an employee for non-performance does not fall into the category of MISCONDUCT. Hence after proper enquiry and substantial evidence, the non-performer (whoever may be) can be thrown out of employment.
From India, Tiruchchirappalli
Dismissal of an employee for non-performance does not fall into the category of MISCONDUCT. Hence after proper enquiry and substantial evidence, the non-performer (whoever may be) can be thrown out of employment.
From India, Tiruchchirappalli
We have checked with Conciliation about this issue. Commissioner said, i can take action on them as per their standing instructions. He dont have any issue.
But We have not given any standing instructions 15 years back with his appointment order. as on those days company have given appointment order in a single paper with pen writing.
can we follow their 3 years workmen agreement as standing instructions? We wanted to take action legally.
Thanks
From India, Chennai
But We have not given any standing instructions 15 years back with his appointment order. as on those days company have given appointment order in a single paper with pen writing.
can we follow their 3 years workmen agreement as standing instructions? We wanted to take action legally.
Thanks
From India, Chennai
The termination of employment of permanant workman must be followed by certain cautious steps
1. The charge sheet & Enquiry must be conducted
2. The Enquiry shall be faie one, which gives ample opportunities to the charge sheeted workman in the enquiry.
3. Principles of Natural Justice must be followed in enquiry
4. The enquiry report ( Dully proved ) shall be given to workman for explanation
5. The punishment must be based on In proportion to the Gravity of Misconduct principle
6.In case of serious misconducts such as Theft,Dis honesty, Violence behavour, willful insubordination causing damage to employers business, Instigation for go slow etc. the extreme punishment of termination of employment is advisable
Any termination of workmans service without the Proper & Legal Enquiry will be illegal the employer has to face further consenquences like re-instatement with full back wages etc depending on each case.
Here in present case low performance which i assume as low productivity as compared to past record of workman. This is go slow. Conduct enquiry, prove it, assess the damage & take a proper decision based on the above points
From India, Kolhapur
1. The charge sheet & Enquiry must be conducted
2. The Enquiry shall be faie one, which gives ample opportunities to the charge sheeted workman in the enquiry.
3. Principles of Natural Justice must be followed in enquiry
4. The enquiry report ( Dully proved ) shall be given to workman for explanation
5. The punishment must be based on In proportion to the Gravity of Misconduct principle
6.In case of serious misconducts such as Theft,Dis honesty, Violence behavour, willful insubordination causing damage to employers business, Instigation for go slow etc. the extreme punishment of termination of employment is advisable
Any termination of workmans service without the Proper & Legal Enquiry will be illegal the employer has to face further consenquences like re-instatement with full back wages etc depending on each case.
Here in present case low performance which i assume as low productivity as compared to past record of workman. This is go slow. Conduct enquiry, prove it, assess the damage & take a proper decision based on the above points
From India, Kolhapur
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Termination-emp loyment_563.pdf
Termination letter.doc