Dear Mr. Varghese,
I agree with you insofar as Section 12(1) is concerned. In this case, we are not sure whether the MBF Act of 1961 is applicable to the establishment. Additionally, we need to discuss the pros and cons of a discharge under the contract of employment. Therefore, my insistence is solely on Section 12(2)(a) for the sake of an amicable settlement.
As per Section 5(2) of the MB Act of 1961, the 80 days of service should be calculated backwards effective from the expected date of delivery only.
From India, Salem
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6185I agree with you insofar as Section 12(1) is concerned. In this case, we are not sure whether the MBF Act of 1961 is applicable to the establishment. Additionally, we need to discuss the pros and cons of a discharge under the contract of employment. Therefore, my insistence is solely on Section 12(2)(a) for the sake of an amicable settlement.
As per Section 5(2) of the MB Act of 1961, the 80 days of service should be calculated backwards effective from the expected date of delivery only.
From India, Salem
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As posted by Mr. Umakanthan, the applicability of the MB Act in this case is doubtful.
Now, for academic interest, Section 10 of the Act states that a woman suffering from illness arising out of six conditions is entitled to leave with wages at maternity benefit for a maximum period of one month. The word "or" is not used in between the conditions.
In my opinion, if a pregnant woman takes 30 days of leave for sickness related to pregnancy, she is not eligible for such leave again for sickness related to miscarriage, delivery, or MTP.
From India, Thiruvananthapuram
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Now, for academic interest, Section 10 of the Act states that a woman suffering from illness arising out of six conditions is entitled to leave with wages at maternity benefit for a maximum period of one month. The word "or" is not used in between the conditions.
In my opinion, if a pregnant woman takes 30 days of leave for sickness related to pregnancy, she is not eligible for such leave again for sickness related to miscarriage, delivery, or MTP.
From India, Thiruvananthapuram
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In all this melee, where has Mr./Ms. Anonymous vanished after posting the query on 28 Sept?
Everyone has been taking their time to give their suggestions/opinions, making different assumptions in the lack of complete details from the Anonymous. If his/her query has been answered, the basic courtesy of acknowledging it also seems to be missing.
I am not sure if it's worth spending more time on guiding someone who doesn't value others' time.
Regards,
TS
From India, Hyderabad
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Everyone has been taking their time to give their suggestions/opinions, making different assumptions in the lack of complete details from the Anonymous. If his/her query has been answered, the basic courtesy of acknowledging it also seems to be missing.
I am not sure if it's worth spending more time on guiding someone who doesn't value others' time.
Regards,
TS
From India, Hyderabad
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Hello Mr. Tajsateesh,
I am reading the comments and different acts and rules honorable members have suggested. The second comment on the post is mine elaborating the topic furthermore.
In case I confront the employee to submit resignation papers, since within the first week of joining they took three sick leaves followed by two more in the next week, none consecutively, it is clear that they were concealing or not disclosing the fact during the interview. They were looking for a work-from-home kind of job, which is why they did not disclose their unavailability to work or manage people.
I am only thinking that I do not have any proof that they disclosed it or if they came to know about their health in the past month itself. Hence, asking them to resign may turn things sour. If they don't resign, can I even terminate them after asking them to resign?
From Canada, Vancouver
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I am reading the comments and different acts and rules honorable members have suggested. The second comment on the post is mine elaborating the topic furthermore.
In case I confront the employee to submit resignation papers, since within the first week of joining they took three sick leaves followed by two more in the next week, none consecutively, it is clear that they were concealing or not disclosing the fact during the interview. They were looking for a work-from-home kind of job, which is why they did not disclose their unavailability to work or manage people.
I am only thinking that I do not have any proof that they disclosed it or if they came to know about their health in the past month itself. Hence, asking them to resign may turn things sour. If they don't resign, can I even terminate them after asking them to resign?
From Canada, Vancouver
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Dear Mr Umakanthan, Will the MB Act be applicable in this situation since its an IT firm with less than 10 employees?
From Canada, Vancouver
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From Canada, Vancouver
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Nice to see your response and glad to know everyone's time is not going waste, Anonymous.
Like some other members mentioned above, the performance-related aspects – which include taking frequent leaves that can affect work – may not be clubbed with the maternity issue. Since you don't have any proof for whatever has happened so far, to strengthen your position from a legal perspective, I suggest beginning to send emails of whatever you wish to convey to her from now onwards. This will force her to reply back through emails, thereby compiling evidence.
If she is the over-smart type who replies verbally to whatever is asked in writing to avoid building up evidence, I suggest taking those inputs and writing back to her summarizing whatever was discussed – what you said and what she said. That way, you can build up evidence for the whole situation, driving it in the direction you wish it to take.
Hope you get the point.
All the best.
Regards,
TS
From India, Hyderabad
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Like some other members mentioned above, the performance-related aspects – which include taking frequent leaves that can affect work – may not be clubbed with the maternity issue. Since you don't have any proof for whatever has happened so far, to strengthen your position from a legal perspective, I suggest beginning to send emails of whatever you wish to convey to her from now onwards. This will force her to reply back through emails, thereby compiling evidence.
If she is the over-smart type who replies verbally to whatever is asked in writing to avoid building up evidence, I suggest taking those inputs and writing back to her summarizing whatever was discussed – what you said and what she said. That way, you can build up evidence for the whole situation, driving it in the direction you wish it to take.
Hope you get the point.
All the best.
Regards,
TS
From India, Hyderabad
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Thank you for all the detailed suggestions, everyone.
I think I will keep track of employees' hours and their ability to coordinate and work at least a few hours with other employees. Only two of her sick leaves remain if she takes that and/or calls to say that she won't be able to work when the rest of the team members are working, I will get that in writing. This will show her inability to communicate/stay in touch with other employees. Once I get enough evidence, I will ask her to put down her papers after two or three such incidents and get them in writing.
In our case, primarily only the Shops and Establishment Act is applicable. I will have to find out if maternity benefits are applicable for establishments with less than 10 people. Also, I read posts and was under the impression that termination during probation does not require a lengthy process of documentation for poor performance and issuance of warnings and suspension. That process is only required once the probation is completed.
Can a clause like "Your services shall be liable to be terminated in case you are found physically or mentally unfit to execute the employment duties. The company reserves the right to require you to undergo a medical examination." be added for future avoidance of such issues? Also, is asking questions about personal health and family acceptable as per laws? Wouldn't it be a basis of discrimination if hiring decisions are made after asking such questions?
From Canada, Vancouver
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I think I will keep track of employees' hours and their ability to coordinate and work at least a few hours with other employees. Only two of her sick leaves remain if she takes that and/or calls to say that she won't be able to work when the rest of the team members are working, I will get that in writing. This will show her inability to communicate/stay in touch with other employees. Once I get enough evidence, I will ask her to put down her papers after two or three such incidents and get them in writing.
In our case, primarily only the Shops and Establishment Act is applicable. I will have to find out if maternity benefits are applicable for establishments with less than 10 people. Also, I read posts and was under the impression that termination during probation does not require a lengthy process of documentation for poor performance and issuance of warnings and suspension. That process is only required once the probation is completed.
Can a clause like "Your services shall be liable to be terminated in case you are found physically or mentally unfit to execute the employment duties. The company reserves the right to require you to undergo a medical examination." be added for future avoidance of such issues? Also, is asking questions about personal health and family acceptable as per laws? Wouldn't it be a basis of discrimination if hiring decisions are made after asking such questions?
From Canada, Vancouver
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The terms "physically and mentally unfit to execute the duties" should be avoided because it is a relative term and not quantifiable. You may have to prove that the employee is 'mentally' unfit to do the work, which is not always possible. A better alternative would be to use, "your services shall be terminated without notice and without assigning any reason thereof." In such cases, the termination order will not specify the reasons but will only state that you are terminated as per the contract of employment. The termination could be due to non-performance, failure of vendors to provide projects, or downsizing. The key point is that the letter terminating the employee should be clear and concise.
From India, Kannur
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From India, Kannur
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Dear questioner,
If your establishment has not employed 10 or more employees in total in the past or as of now, the Maternity Benefit Act of 1961 will not be applicable. Therefore, you do not have the legal obligation to extend maternity benefits. However, terminating her services as per the conditional clause in the orders of appointment on the alleged grounds without giving her a reasonable opportunity in accordance with the principles of natural justice is not advisable, as suggested by other members.
As a format, you can simply mention that if the performance of the employee is not satisfactory during the probation period, including any extended period, the employer has the right to terminate the services of the probationer with or without notice and without assigning any reasons. This is called discharge simpliciter or simple discharge.
However, such a decision can be questioned by the aggrieved employee in a Court of Law. Therefore, to substantiate such a decision, it is better to establish clear parameters for performance, behavior, etc., of the probationer and to document them well.
From India, Salem
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If your establishment has not employed 10 or more employees in total in the past or as of now, the Maternity Benefit Act of 1961 will not be applicable. Therefore, you do not have the legal obligation to extend maternity benefits. However, terminating her services as per the conditional clause in the orders of appointment on the alleged grounds without giving her a reasonable opportunity in accordance with the principles of natural justice is not advisable, as suggested by other members.
As a format, you can simply mention that if the performance of the employee is not satisfactory during the probation period, including any extended period, the employer has the right to terminate the services of the probationer with or without notice and without assigning any reasons. This is called discharge simpliciter or simple discharge.
However, such a decision can be questioned by the aggrieved employee in a Court of Law. Therefore, to substantiate such a decision, it is better to establish clear parameters for performance, behavior, etc., of the probationer and to document them well.
From India, Salem
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Can the employee's inability to perform daily tasks like communicating with other team members, attending meetings, and taking too many planned leaves during probation be a parameter of poor performance? Today again, the employee has emailed for two planned leaves for this month...
As per the Gujarat Shops and Establishment Act, employees are given 7 sick days, 7 casual days, and every employee who has worked for a period of two hundred and forty days or more in the year shall be allowed leave with wages for a number of days, calculated at the rate of one day for every twenty days of work performed by him during the previous calendar year.
From Canada, Vancouver
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As per the Gujarat Shops and Establishment Act, employees are given 7 sick days, 7 casual days, and every employee who has worked for a period of two hundred and forty days or more in the year shall be allowed leave with wages for a number of days, calculated at the rate of one day for every twenty days of work performed by him during the previous calendar year.
From Canada, Vancouver
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