Hello Vinod Bidwaik
As per Payment of Gratuity Act 1972 an Employee whom has more than 5years service he should be paid Gratuity if he is retired/removed from service or died. The above person case has 15 years of service, so he will get around 8 months salary.
Calculation of Gratuity
Gratuity = last drawn Monthly Salary/26 x 15 days x No. of yrs. of service.
*Penal Provisions
Nonpayment of gratuity payable under the Act is punishable with imprisonment up to 2 years (minimum 6 months) and/or fine up to RS 20,000/-. Other contravention/offenses attract imprisonment up to 1 year and/or fine up to RS 10,000.
From India, Mumbai
As per Payment of Gratuity Act 1972 an Employee whom has more than 5years service he should be paid Gratuity if he is retired/removed from service or died. The above person case has 15 years of service, so he will get around 8 months salary.
Calculation of Gratuity
Gratuity = last drawn Monthly Salary/26 x 15 days x No. of yrs. of service.
*Penal Provisions
Nonpayment of gratuity payable under the Act is punishable with imprisonment up to 2 years (minimum 6 months) and/or fine up to RS 20,000/-. Other contravention/offenses attract imprisonment up to 1 year and/or fine up to RS 10,000.
From India, Mumbai
On a simple note transfer him in sales or liasoning dept where he has to give immediate results..If he is competent he will give good results or will look out and in due course org can make neccessary ground work so that employyes do not get in discomfort.
If he is anti- est then there is no need to make him a hero by terminating or martyr, simply change his role & coldly put him in a situation where he himself loose his stature.
Org interest come first always & every time.
NS
From India, Delhi
If he is anti- est then there is no need to make him a hero by terminating or martyr, simply change his role & coldly put him in a situation where he himself loose his stature.
Org interest come first always & every time.
NS
From India, Delhi
Dear Mr.Malik,
Can you elaborate me on 'eight months salary as compensation'. My understanding is double months salary plus gratuity as compensation in case of retrenchment. Please throw some light on this in line with ID act
From India, Tiruppur
12Can you elaborate me on 'eight months salary as compensation'. My understanding is double months salary plus gratuity as compensation in case of retrenchment. Please throw some light on this in line with ID act
From India, Tiruppur
dear
as per industyrial dispute act you are required to pay compensation which is equal to 15 days salary for every one year of service.iof he has pu up 15 years service than 225 days salary to be paid as retrenchment compensation.still this termination will be illegal without conducting
proper enquiry.
regards
js malik
From India, Delhi
as per industyrial dispute act you are required to pay compensation which is equal to 15 days salary for every one year of service.iof he has pu up 15 years service than 225 days salary to be paid as retrenchment compensation.still this termination will be illegal without conducting
proper enquiry.
regards
js malik
From India, Delhi
Dear friend,
as per my opinion the primary mistake was you have not issued an appointment order to him. But now you dont require his services, you can terminate him but only thing is you need justification for your termination.
I think in this special case you need to sit with the management, because he served for the company past 15 years. So you cant ignore his services.
Or else you sit with this employee and guide him about his behaviour, if he can't change his behavior then the same may be informed to management and as per the management order you can terminate his services.
Step 2:-
formulate policy through management and set the following policy :-
1. Recruitment policy
2. Leave policy
3. Code of conduct
4. Performance appraisals
5. Salary and increments
6. Retirement policy etc.,
implement the above policy through management so that you get justification for your action. Kindly note that whatever you need to do please take prior permission from management. This is very important. You cant ignore managment, because as per your opinion this employee may not good but we dont know what management is thinking! According to their opinion he may good also.
So you can't take hasty decision on this. Please follows as per management decision.
Regards,
bharath dwajh .a.s.
From India, Bangalore
as per my opinion the primary mistake was you have not issued an appointment order to him. But now you dont require his services, you can terminate him but only thing is you need justification for your termination.
I think in this special case you need to sit with the management, because he served for the company past 15 years. So you cant ignore his services.
Or else you sit with this employee and guide him about his behaviour, if he can't change his behavior then the same may be informed to management and as per the management order you can terminate his services.
Step 2:-
formulate policy through management and set the following policy :-
1. Recruitment policy
2. Leave policy
3. Code of conduct
4. Performance appraisals
5. Salary and increments
6. Retirement policy etc.,
implement the above policy through management so that you get justification for your action. Kindly note that whatever you need to do please take prior permission from management. This is very important. You cant ignore managment, because as per your opinion this employee may not good but we dont know what management is thinking! According to their opinion he may good also.
So you can't take hasty decision on this. Please follows as per management decision.
Regards,
bharath dwajh .a.s.
From India, Bangalore
The best solution is to talk with him clearly and share your observations with him and also try to find out the areas where he is not doing his best and also try to find out the reasons behind this. If you find somethng which is can be managed then keep him continue with your ogr otherwise ask him to either resign or do best. if he agrees to do the work as suggested or expected from then then give him a trial period of 1 month, if he does well in that period then you will get the solution.
From India, Delhi
From India, Delhi
Dear all!!!! The response to Amita's query baffles me. I am pained to note that we are promoting some sort of skullduggery management!! Are we here to promote all sorts of unethical practices as HR professionals.
The query is for legal method of terminating an employee with 15 years service even though no appointment order has been issued. From the description it appears he is in the workmen category. The legal position is very clear that an employee who has served for more than 240 days in the previous 12 months cannot be just wished away execpt by means of termination of service as a result of disciplinary action, or retirement lest it be termed as illegal retrenchment. The effect of illegal retrenchment is that he comes back with a vengence and all back wages. There is an appointment order or not has no significance since the courts can direct you to produce the muster roll, pf contribution details of remittance etc which would amply prove the employer-employee relationship. Terminating an employee in the workmen category by payment of notice period salary is not viewed favourably by the courts. For irreverent behaviour, enquiry cannot be dispensed with. The legal position needs to be clearly underscored.
The query is for legal method of terminating an employee with 15 years service even though no appointment order has been issued. From the description it appears he is in the workmen category. The legal position is very clear that an employee who has served for more than 240 days in the previous 12 months cannot be just wished away execpt by means of termination of service as a result of disciplinary action, or retirement lest it be termed as illegal retrenchment. The effect of illegal retrenchment is that he comes back with a vengence and all back wages. There is an appointment order or not has no significance since the courts can direct you to produce the muster roll, pf contribution details of remittance etc which would amply prove the employer-employee relationship. Terminating an employee in the workmen category by payment of notice period salary is not viewed favourably by the courts. For irreverent behaviour, enquiry cannot be dispensed with. The legal position needs to be clearly underscored.
Dear Friends,
I have the following suggestions to offer:
1. Can the queries be made more specific and complete in one go. Instead of using long sentences and often incorrect expressions ( I am not trying to find faults pl.), can we make useof simple English and explain the matter in small sentences.
In the instant matter it is stated that the employee was not given Appointment letter at the time of his joining. Someone has correctly asked if it was given at a later stage..
2. It will be best if the queries are made point by point, like maybe using bullets.
3. Before sending the query read the matter that has ben typed and satisfy yourself that you have your query complete and proper in all respects.
3. This would help in preventing an EMI based answering process.
Well in this matter relating to an employee who has been in employment for 15 years, merely saying that the employer does not want him any longer because of his changed behaviour and therefore can he terminated.
Mr.Malik has rightly said that such summary termination will not stand the test of law, it would be illegal.
The correct process would be:
1. Start issuing advisory notes and warning letters whenever he is seen to be indulging in any for of disorderly conduct. Create record of bad behaviour against the employee. It should be properly documented.
2. After a few such letters, his written explanation can be called for, for his disorderly behaviour at work.
3. If his objectionable conduct relates to involvement of any other employee, get such employee/s to give written complaints against him.
4. Once you have a few of such instances properly documents/ recorded in his file, you could go ahead and serve him with a detailed and properly worded Charge Sheet and start proper disciplinary action against him.
5. If you feel that his presence in the premises is detrimental to the overall discipline in the establishment, you could even suspend him, pending further investigations into the matter.
6. Later you could intitute a Domestic Enquiry against him and eventually dismiss him from the services of the Co.
This would be the correct legal prodecure to dismiss him.
There are several other more subtle and practical ways of getting rid of troublesome employees, I wonder if we should pen down such solutions in this platform.
Best Wishes,
Vasant Nair
From India, Mumbai
I have the following suggestions to offer:
1. Can the queries be made more specific and complete in one go. Instead of using long sentences and often incorrect expressions ( I am not trying to find faults pl.), can we make useof simple English and explain the matter in small sentences.
In the instant matter it is stated that the employee was not given Appointment letter at the time of his joining. Someone has correctly asked if it was given at a later stage..
2. It will be best if the queries are made point by point, like maybe using bullets.
3. Before sending the query read the matter that has ben typed and satisfy yourself that you have your query complete and proper in all respects.
3. This would help in preventing an EMI based answering process.
Well in this matter relating to an employee who has been in employment for 15 years, merely saying that the employer does not want him any longer because of his changed behaviour and therefore can he terminated.
Mr.Malik has rightly said that such summary termination will not stand the test of law, it would be illegal.
The correct process would be:
1. Start issuing advisory notes and warning letters whenever he is seen to be indulging in any for of disorderly conduct. Create record of bad behaviour against the employee. It should be properly documented.
2. After a few such letters, his written explanation can be called for, for his disorderly behaviour at work.
3. If his objectionable conduct relates to involvement of any other employee, get such employee/s to give written complaints against him.
4. Once you have a few of such instances properly documents/ recorded in his file, you could go ahead and serve him with a detailed and properly worded Charge Sheet and start proper disciplinary action against him.
5. If you feel that his presence in the premises is detrimental to the overall discipline in the establishment, you could even suspend him, pending further investigations into the matter.
6. Later you could intitute a Domestic Enquiry against him and eventually dismiss him from the services of the Co.
This would be the correct legal prodecure to dismiss him.
There are several other more subtle and practical ways of getting rid of troublesome employees, I wonder if we should pen down such solutions in this platform.
Best Wishes,
Vasant Nair
From India, Mumbai
Dear Amita,
Instead of terminating him, better change his resposibility, try to give some lower/least staff level category promotion to motvate him and if he refusing to take new responsibility then u can give him two options like, take new assignment or to leave the company, by this way you can ease your legal way approach
Instead of terminating him, better change his resposibility, try to give some lower/least staff level category promotion to motvate him and if he refusing to take new responsibility then u can give him two options like, take new assignment or to leave the company, by this way you can ease your legal way approach
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