Dear Geetha,
Before taking any action, you must firstly decide whether he is a workman under ID Act, 1947. If he is a workman then even if you terminate him simpliciter, he will be protected by ID Act and he cannot be retrenched without following the procedure of last come first go. Then even layer before making any appointment on his post, you have to give him offer of appointment. Thus the only recourse will be to collate evidence against him and hold disciplinary proceedings and then terminate him. The charges should be very serious. Gone is the era of hire and fire. If he is not a workman then there is no problem. Go by the contract and terminate.
Thanks
From India, New Delhi
221Before taking any action, you must firstly decide whether he is a workman under ID Act, 1947. If he is a workman then even if you terminate him simpliciter, he will be protected by ID Act and he cannot be retrenched without following the procedure of last come first go. Then even layer before making any appointment on his post, you have to give him offer of appointment. Thus the only recourse will be to collate evidence against him and hold disciplinary proceedings and then terminate him. The charges should be very serious. Gone is the era of hire and fire. If he is not a workman then there is no problem. Go by the contract and terminate.
Thanks
From India, New Delhi
Dear Geeta,
Simply do one thing issue him a warning letter contain that,
Mr. XYZ
Dept.
Subject :- Warning letter
On above subject mr. XYZ
We have given verbal warning to you many times to improve your performance and behavior but the till date there is no any improvement and changes in your behavior and it is clearly indicates that your not serious about your seniors and the Job. why not company will take serious action against you. kindly reply in written within a 48 hrs after received this letter if you are not respond the said time we will consider that you are accepted the letter. it is your own responsibility to action against you.
Authorise Signatory
ZYX Company
if he is not responded call him on table ask for resignation he is not agreed let him issue termination letter and the settlement cheque as per commitment in appointment letter let him go.
From India, Mumbai
Simply do one thing issue him a warning letter contain that,
Mr. XYZ
Dept.
Subject :- Warning letter
On above subject mr. XYZ
We have given verbal warning to you many times to improve your performance and behavior but the till date there is no any improvement and changes in your behavior and it is clearly indicates that your not serious about your seniors and the Job. why not company will take serious action against you. kindly reply in written within a 48 hrs after received this letter if you are not respond the said time we will consider that you are accepted the letter. it is your own responsibility to action against you.
Authorise Signatory
ZYX Company
if he is not responded call him on table ask for resignation he is not agreed let him issue termination letter and the settlement cheque as per commitment in appointment letter let him go.
From India, Mumbai
Dear all, proceedings of more serious nature will be required to be initiated by giving show cause notices of precise nature, if the delinquent is a workman. Otherwise if he is governed simply by Contract Act, go by contractual terms simply to terminate his services and do not give the color of punishment.
From India, New Delhi
From India, New Delhi
Dear Geeta,
You must have understood by now. Mr. Rao have explained brilliantly. Further to clear the things. If employer (Reporting Boss / HOD / HR) discuss with the employee about his performance and ask him to resign stating that we will give you full support in your exit including your proper FnF, experience letter & Reference check if he gets another job.
Their can be only 3 scenarios
1. He understand the situation accepts to resign and serves notice period and look for new job alternatively. (If possible, record audio - visual of the talks)
2. He refuses to listen to the first situation. Then comes the warning letter kept aside (prepared well in advance) and shown to him stating that this is what you have to receive and dont ask for any support from our side.
Seeing the tough approach of organization, he might agree to situation 1.
3. He refuses situation 1 & 2 both. In this case, warning letter with his performance for last 2 years and the losses because of his non performance to the organization should be handed over along with warning letter ( similar to appl hr above) should be handed over and in another 48 hours if no response received organization should issue termination letter.
If challenged in court by employee in that case this video recording will surely help as organization has given fare chances to the employee but he is just not ready to accept the wrong doing.
Hope this help Ms. Geeta.
Note: Kindly share what you / your organization did and what was the response of employee.
Regards,
Abhishek Jain
From India, Delhi
You must have understood by now. Mr. Rao have explained brilliantly. Further to clear the things. If employer (Reporting Boss / HOD / HR) discuss with the employee about his performance and ask him to resign stating that we will give you full support in your exit including your proper FnF, experience letter & Reference check if he gets another job.
Their can be only 3 scenarios
1. He understand the situation accepts to resign and serves notice period and look for new job alternatively. (If possible, record audio - visual of the talks)
2. He refuses to listen to the first situation. Then comes the warning letter kept aside (prepared well in advance) and shown to him stating that this is what you have to receive and dont ask for any support from our side.
Seeing the tough approach of organization, he might agree to situation 1.
3. He refuses situation 1 & 2 both. In this case, warning letter with his performance for last 2 years and the losses because of his non performance to the organization should be handed over along with warning letter ( similar to appl hr above) should be handed over and in another 48 hours if no response received organization should issue termination letter.
If challenged in court by employee in that case this video recording will surely help as organization has given fare chances to the employee but he is just not ready to accept the wrong doing.
Hope this help Ms. Geeta.
Note: Kindly share what you / your organization did and what was the response of employee.
Regards,
Abhishek Jain
From India, Delhi
Dear Abhishek,
I feel he will consult his lawyer and deny your allegations in proposed show cause. Once warning letter is issued then mgt cannot take recourse to other punishment of termination because of constitutional protection. It is easy to give divorce than to get rid of an employee through disciplinary proceedings. Court sifts through evidence minutely.
Thanks
From India, New Delhi
I feel he will consult his lawyer and deny your allegations in proposed show cause. Once warning letter is issued then mgt cannot take recourse to other punishment of termination because of constitutional protection. It is easy to give divorce than to get rid of an employee through disciplinary proceedings. Court sifts through evidence minutely.
Thanks
From India, New Delhi
Dear Geetha Nirmalkar,
I was wondering whether I lack English or You people have a different English?
What Shri. Korgaonkar raised was very correct. I also did not understand certain terms " termination without legal issue", "relieving him without legal issue" etc. Does this mean, management just does not want to initiate any action against the employee or it wants any such action which will not bring any legal action against management? These words confuse me at least.
As an HR person, one must have a proper record of employee's performance. It looks many HR people think that record of performance only means positive achievements and to my surprise, negative or non-performance record is ignored. Performance means both ways positive and negative too.
You said the employee was working for last 4 years and his performance is poor. Then you must have adequate negative record of him and the time to time action by management on him. In such case, you should not have any difficulty in dealing with such an employee and come to desired result.
From India, Kolhapur
I was wondering whether I lack English or You people have a different English?
What Shri. Korgaonkar raised was very correct. I also did not understand certain terms " termination without legal issue", "relieving him without legal issue" etc. Does this mean, management just does not want to initiate any action against the employee or it wants any such action which will not bring any legal action against management? These words confuse me at least.
As an HR person, one must have a proper record of employee's performance. It looks many HR people think that record of performance only means positive achievements and to my surprise, negative or non-performance record is ignored. Performance means both ways positive and negative too.
You said the employee was working for last 4 years and his performance is poor. Then you must have adequate negative record of him and the time to time action by management on him. In such case, you should not have any difficulty in dealing with such an employee and come to desired result.
From India, Kolhapur
Dear kulkarni,
What follows after granting him increments every year and other benefits every year is obvious. So if the mgt is treading to adopt the path of disciplinary action, then fool proof method needs to be resorted to. The queries does not answer whether he is workman. If he is so then resorting to it is essential otherwise contractual terms govern the scene.
From India, New Delhi
What follows after granting him increments every year and other benefits every year is obvious. So if the mgt is treading to adopt the path of disciplinary action, then fool proof method needs to be resorted to. The queries does not answer whether he is workman. If he is so then resorting to it is essential otherwise contractual terms govern the scene.
From India, New Delhi
I wish things like employment contract can be enforced in India, benefitting the employee more than the employer. HR in India are always behind terminating employees as if they are disposable resources. I wish the HR terminate few people from their own community for unethical recruiting practices.
From India, Bangalore
From India, Bangalore
Dear Vijay,
It is not that employees do not get justice but there may be delay. Everyone wants speedy justice. But the basic premise is everyone should know where he stands legality vice and merit vice. Then only he should tread on the path of litigation.
From India, New Delhi
It is not that employees do not get justice but there may be delay. Everyone wants speedy justice. But the basic premise is everyone should know where he stands legality vice and merit vice. Then only he should tread on the path of litigation.
From India, New Delhi
What I wish to understand from the post of Geetha is that - they have to get rid of him, known to be an under performer who has put in 4 yrs. service without any hassles. Their fear is his wife happens to be a PP. A simple answer to this could be "negotiate with him" and pay for it. If not what are the possibilities ? - When it comes to resignation & relieving - there ends the matter. Whereas termination means it requires detailed documentation about his bad performance so far very meticulously recorded over the years by which only you can defend when the matter is taken to court. Otherwise there is every chance of losing the case, I presume, as stated by many friends he has been serving 4 yrs normally, granted increments from time to time like many of his counterparts. How come suddenly he has become bad this year only which question has to be substantiated and defended adequately.
From India, Bangalore
From India, Bangalore
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20200320_Adviso ry MinistryOfLabou r-Not To Terminate-Emplo yeesOrReduceWag es.pdf