Dear Dilip
The steps you have suggested in respect of the incident will be useful to search for long term solutions to prevent such unseemly behaiour among the employees such as conducting a training on behavioural management or anger management for both workmen and supervisors etc.. Whatever be the reasons behind the workman's present behaviour, it is highly subversive of discipline and do not justify his condcut of heaping insults on the manager and humiliating him by using foul language and in downright disreagrd for his self-respect, esteem and image and thus needs to be dealt with from disciplinary angle which the company has already taken. The only issue that remains to be seen is whether the dismissal will be disproportinate for this kind of misconduct.There are umpteen judgments that upheld dimissal for such indecent behaviour.However if there exist mitigating circumstances like that it is the first incident or it was the result of provokation from the manager but for which the workman wouldnot have misbehaved etc. can be considered in reducing the quantum of penalty but not dispensing with penalty so that it will act as deterrent for other workers in future.
B.Saikumar
HR & Labour Law advisor
Mumbai
From India, Mumbai
1899The steps you have suggested in respect of the incident will be useful to search for long term solutions to prevent such unseemly behaiour among the employees such as conducting a training on behavioural management or anger management for both workmen and supervisors etc.. Whatever be the reasons behind the workman's present behaviour, it is highly subversive of discipline and do not justify his condcut of heaping insults on the manager and humiliating him by using foul language and in downright disreagrd for his self-respect, esteem and image and thus needs to be dealt with from disciplinary angle which the company has already taken. The only issue that remains to be seen is whether the dismissal will be disproportinate for this kind of misconduct.There are umpteen judgments that upheld dimissal for such indecent behaviour.However if there exist mitigating circumstances like that it is the first incident or it was the result of provokation from the manager but for which the workman wouldnot have misbehaved etc. can be considered in reducing the quantum of penalty but not dispensing with penalty so that it will act as deterrent for other workers in future.
B.Saikumar
HR & Labour Law advisor
Mumbai
From India, Mumbai
Hi,
If this was the first time where his previous records are not such than a warning should be given and he should be given an observation for 1 or 2 months. If the same repeated again than probably termination is a ideal scenario.
Also it is necessary to know that against whom the foul language was used, what made him do that? Is it because the manager has been behaving badly with him which has led to such incident.
Many cases where employee leaves the job is because not of the company but due to the manager or his senior who don\t treat their sub-ordinates properly. Thus also you loose a useful resource for your company.
From India, Mumbai
If this was the first time where his previous records are not such than a warning should be given and he should be given an observation for 1 or 2 months. If the same repeated again than probably termination is a ideal scenario.
Also it is necessary to know that against whom the foul language was used, what made him do that? Is it because the manager has been behaving badly with him which has led to such incident.
Many cases where employee leaves the job is because not of the company but due to the manager or his senior who don\t treat their sub-ordinates properly. Thus also you loose a useful resource for your company.
From India, Mumbai
Hi
In addition to the valuable comments posted by our experts it would also be prudent to examine the Standing Orders of the
Company and the appropriate disciplinary actions mentioned thereunder for a similar offense. Our actions shall always be in congruence with
the same.
Dr. T. Thomas.
From India, Bangalore
In addition to the valuable comments posted by our experts it would also be prudent to examine the Standing Orders of the
Company and the appropriate disciplinary actions mentioned thereunder for a similar offense. Our actions shall always be in congruence with
the same.
Dr. T. Thomas.
From India, Bangalore
I do not agree that someone can use unacceptable language over his superior and ask for pardon later. Whatever may be reason for provocation, etc. using filthy lanaguage against an employee is not justified.
I have come across several court cases and judgments, that it is not disproportionate to impose punishment of dismissal. Whether the employee has clean track record earlier or otherwise, this does not mean that he will be able to be seen leniently this time.
I am for imposinng capital punishment.
V. Balaji
From India, Madras
I have come across several court cases and judgments, that it is not disproportionate to impose punishment of dismissal. Whether the employee has clean track record earlier or otherwise, this does not mean that he will be able to be seen leniently this time.
I am for imposinng capital punishment.
V. Balaji
From India, Madras
Dear Mr. Manohar,
I feel that you have to consider his background, his habits, his family and whether his dismissal is going to put his family on the street. If dismissed, it is likely that he will get another job elsewhere. I think, if he repents his misconduct, if he is willing to apologize, he may be demoted and kept on rolls of the company since it would prove as a deterrent to others from indulging in such misconducts.
If the employee is an experienced one, it woud help the company in avoiding getting a replacement for him.
N K Acharya
From India, Hosur
I feel that you have to consider his background, his habits, his family and whether his dismissal is going to put his family on the street. If dismissed, it is likely that he will get another job elsewhere. I think, if he repents his misconduct, if he is willing to apologize, he may be demoted and kept on rolls of the company since it would prove as a deterrent to others from indulging in such misconducts.
If the employee is an experienced one, it woud help the company in avoiding getting a replacement for him.
N K Acharya
From India, Hosur
Dear Manohar
There are always two aspects
1. What is legal
2. What does the management want and what is equitable
As you have mentioned, you have followed the legal steps required to reach the conclusion.
For the punishment, What is the view of the management ? Are they ready to fight the matter out to the highest possible level and stick to the decision ? This is important as any weekness of yielding to the union / workmen will create an everlasting impression and thereafter the situation may never come back to normal.
If you have a strong union, and management feels that they can get some leverage out of this situation and are flexible, it is best to use this situation to your advantage
Regards
Preetam Deshpande
From India, Mumbai
There are always two aspects
1. What is legal
2. What does the management want and what is equitable
As you have mentioned, you have followed the legal steps required to reach the conclusion.
For the punishment, What is the view of the management ? Are they ready to fight the matter out to the highest possible level and stick to the decision ? This is important as any weekness of yielding to the union / workmen will create an everlasting impression and thereafter the situation may never come back to normal.
If you have a strong union, and management feels that they can get some leverage out of this situation and are flexible, it is best to use this situation to your advantage
Regards
Preetam Deshpande
From India, Mumbai
Dear Mr. Manohar,
All my friends have expressed their views. It is in line with legality.
If you complied with all the formalities in the domestic enquiry, giving fair opportunity to charge sheeted employee to defend his case, providing all the documents the Management depend on it, allowing the employee to cross examine the Management witnesses, they you have ample opportunty to defend your action in the eyes of law.
Pl. also note that in his defence statement, what he is stated is very important. If he has accepted the guilt, and if he has not stated that he hurled such words only on the provocation of the Manager/Sr. Officer and if he had produced any witnesses in this regard and in case the Management has rebutted all his such statements, you have got good chance even if the Employee raises the dispute u/S. 10(A) of the ID ACT.
The drafting of charge sheet is very important. All those filthy languges (as it is 0 has to be reproduced in the charge sheet.
After the due enequiry, and receipt of the report from the enquiry officer, a copy of the report along with the Second Show Cause Notice is to be sent asking the employee to submit his explanation on the findings of the enquiry officer. The disciplinary authority should analyse all the events in an impeccable manner and after looking at the past records of the employee, has to take a final call in dismissing the employee.
Hope you have complied with all the above formalities. Now a days courts view such misconducts very seriously. Only thing is you have to apply your mind in complying with all these formalities.
G.K.Manjunath,
Sr. Manager - HR
From India, Bangalore
All my friends have expressed their views. It is in line with legality.
If you complied with all the formalities in the domestic enquiry, giving fair opportunity to charge sheeted employee to defend his case, providing all the documents the Management depend on it, allowing the employee to cross examine the Management witnesses, they you have ample opportunty to defend your action in the eyes of law.
Pl. also note that in his defence statement, what he is stated is very important. If he has accepted the guilt, and if he has not stated that he hurled such words only on the provocation of the Manager/Sr. Officer and if he had produced any witnesses in this regard and in case the Management has rebutted all his such statements, you have got good chance even if the Employee raises the dispute u/S. 10(A) of the ID ACT.
The drafting of charge sheet is very important. All those filthy languges (as it is 0 has to be reproduced in the charge sheet.
After the due enequiry, and receipt of the report from the enquiry officer, a copy of the report along with the Second Show Cause Notice is to be sent asking the employee to submit his explanation on the findings of the enquiry officer. The disciplinary authority should analyse all the events in an impeccable manner and after looking at the past records of the employee, has to take a final call in dismissing the employee.
Hope you have complied with all the above formalities. Now a days courts view such misconducts very seriously. Only thing is you have to apply your mind in complying with all these formalities.
G.K.Manjunath,
Sr. Manager - HR
From India, Bangalore
Legal position apart, interest of HR should be in reforming people rather than getting rid of them (which costs no effort). If the employee has no history of indiscipline, a written warning may be adequate, along with proper counseling by an expert. But along with that, it may be fair to place the defaulter under a different manager. That may enable the avoidance of a recurrence.
From India, Delhi
From India, Delhi
Dear T Sivasankaran,
I agree with your contention, however, I disagree with you that a workman can directly go to Labour Court and file the case. You would appreciate that with the latest amendment dated 15.09.2010 in I D Act, direct reference of disputes has become possible by the introduction of Sub Section (2) & (3) in the Act. Accordingly, in case of individual dispute of workman related to discharge, dismissal, retrenchment or termination by any means, now the workman has the right to approach labour court directly without waiting for conciliation proceedings and Govt. reference. But he has to wait for three months for this direct action from the date of filing his application before conciliation officer if the Govt. is not able to complete the reference process within three months. Earlier there was no such direct option available to workman to approach labour court.
Hence, a workman will have to wait for three months for this direct action at Labour Court from the date of filing her application before conciliation officer.
Further, I also feel that Manohar has followed well laid down procedures while initiating disciplinary action. I am attaching herewith a Supreme Court of India's decision holding termination as a right action for using abusive language against a superior. However, Mr B Sai Kumar's suggestions must also be considered before you inflict ultimate order of dismissal.
Rgds,
Rakesh Pd Srivastav
From India, Gurgaon
I agree with your contention, however, I disagree with you that a workman can directly go to Labour Court and file the case. You would appreciate that with the latest amendment dated 15.09.2010 in I D Act, direct reference of disputes has become possible by the introduction of Sub Section (2) & (3) in the Act. Accordingly, in case of individual dispute of workman related to discharge, dismissal, retrenchment or termination by any means, now the workman has the right to approach labour court directly without waiting for conciliation proceedings and Govt. reference. But he has to wait for three months for this direct action from the date of filing his application before conciliation officer if the Govt. is not able to complete the reference process within three months. Earlier there was no such direct option available to workman to approach labour court.
Hence, a workman will have to wait for three months for this direct action at Labour Court from the date of filing her application before conciliation officer.
Further, I also feel that Manohar has followed well laid down procedures while initiating disciplinary action. I am attaching herewith a Supreme Court of India's decision holding termination as a right action for using abusive language against a superior. However, Mr B Sai Kumar's suggestions must also be considered before you inflict ultimate order of dismissal.
Rgds,
Rakesh Pd Srivastav
From India, Gurgaon
Community Support and Knowledge-base on business, career and organisational prospects and issues - Register and Log In to CiteHR and post your query, download formats and be part of a fostered community of professionals.
1.12.09 dismissal 13.02.08 appeal.doc
Dismissal of overworked employees not justified - SC 13.12.2013.pdf