I agree. What are your findings in the enquiry on provocation and extent and recurrence of bad behaviour?
Has a step of suspension (though personally I think suspension only holds a person guilty till proved innocent and against natural justice) been considered. Has any other punitive action under your company's Conduct Discipline Rules been considered?
Do you have defence before the Labour Commissioner/ Conciliation?
If it is a first off offence, reinstatement by legal authorities might show up Management as unfair.
However, if it is enforcement , have you also examined whether he was under the influence of alcohol or any other substance that could have caused aberrant behaviour and if so, what is the punitive action under your comaony's rulkes for such substance abuse. (first time, repetitive)
Suspension during the courser of final enquiry might help throw some light on the incident and a dispassionate finding might strengthen your legal position and back up your action.
Rukmani
From India, Chennai
4Has a step of suspension (though personally I think suspension only holds a person guilty till proved innocent and against natural justice) been considered. Has any other punitive action under your company's Conduct Discipline Rules been considered?
Do you have defence before the Labour Commissioner/ Conciliation?
If it is a first off offence, reinstatement by legal authorities might show up Management as unfair.
However, if it is enforcement , have you also examined whether he was under the influence of alcohol or any other substance that could have caused aberrant behaviour and if so, what is the punitive action under your comaony's rulkes for such substance abuse. (first time, repetitive)
Suspension during the courser of final enquiry might help throw some light on the incident and a dispassionate finding might strengthen your legal position and back up your action.
Rukmani
From India, Chennai
Dear Siva Sankaran and all dear friends in the Cite.
The valuable opinions and suggestions on this issue was simply tremendous and encouraging. In nut shell, what can be adduced and questionable in the profession of HR,is that the HR man in whose hands these type of disciplinary cases fall, it is observed very carefully by all, what action is likely to be taken on an employee for the misconduct or whether the HR man is down playing or scaling down the seriousness, so on... However, in a shop floor, each one of them work in tight schedule and under high pressure, at times, there is always chance for a sour relationship between a Shop Floor Engineer and equally compressed worker to react before a senior officer. What I would call for the line people should have a good inter personal relationship while executing the work from a worker. This is his skill he should develop over the years. In this case, where an employee has used a filthy and foul language, only shows it was clear case of worker usurping the authority of a senior manager and it cannot be taken lightly.
I happen to stumble upon a SC ruling in Mahindra & Mahindra case a brief extract is given below:
[B][I]New Delhi: The Supreme Court has ruled that a workman could be dismissed from service for using filthy language against a superior without any provocation.
Allowing an appeal filed by Mahindra and Mahindra Ltd, a Bench comprising Justice N Santosh Hegde, Justice Tarun Chatterjee and Justice P K Balasubramanyan upheld the order of the Management dismissing N B Narwade.
With this order, the Supreme Court set aside three concurrent findings of three lower courts that punishment of dismissal would be disproportionate to the misconduct.
The Labour Court, Single Judge of the Bombay High Court and its Division Bench had all dismissed the appeal filed by Mahindra and Mahindra and directed reinstatement of Narwade who was found guilty of abusing his superior in a filthy language without any provocation on November 22, 1991.
The apex Court Bench said: "In this case, all the forums below have held that the language used by the workman was filthy. We, too, are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilized society."
"Use of such abusive language against a superior officer, that too not once but twice, in the presence of subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor," Justice Hegde, writing for the Bench, said.
Thursday, 24 February , 2005, Source: PTI
Thanks every one
S.MANOHAR
GR HR HEAD/NSPL CHENNAI
09444207703
From India, Madras
The valuable opinions and suggestions on this issue was simply tremendous and encouraging. In nut shell, what can be adduced and questionable in the profession of HR,is that the HR man in whose hands these type of disciplinary cases fall, it is observed very carefully by all, what action is likely to be taken on an employee for the misconduct or whether the HR man is down playing or scaling down the seriousness, so on... However, in a shop floor, each one of them work in tight schedule and under high pressure, at times, there is always chance for a sour relationship between a Shop Floor Engineer and equally compressed worker to react before a senior officer. What I would call for the line people should have a good inter personal relationship while executing the work from a worker. This is his skill he should develop over the years. In this case, where an employee has used a filthy and foul language, only shows it was clear case of worker usurping the authority of a senior manager and it cannot be taken lightly.
I happen to stumble upon a SC ruling in Mahindra & Mahindra case a brief extract is given below:
[B][I]New Delhi: The Supreme Court has ruled that a workman could be dismissed from service for using filthy language against a superior without any provocation.
Allowing an appeal filed by Mahindra and Mahindra Ltd, a Bench comprising Justice N Santosh Hegde, Justice Tarun Chatterjee and Justice P K Balasubramanyan upheld the order of the Management dismissing N B Narwade.
With this order, the Supreme Court set aside three concurrent findings of three lower courts that punishment of dismissal would be disproportionate to the misconduct.
The Labour Court, Single Judge of the Bombay High Court and its Division Bench had all dismissed the appeal filed by Mahindra and Mahindra and directed reinstatement of Narwade who was found guilty of abusing his superior in a filthy language without any provocation on November 22, 1991.
The apex Court Bench said: "In this case, all the forums below have held that the language used by the workman was filthy. We, too, are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilized society."
"Use of such abusive language against a superior officer, that too not once but twice, in the presence of subordinates cannot be termed to be an indiscipline calling for lesser punishment in the absence of any extenuating factor," Justice Hegde, writing for the Bench, said.
Thursday, 24 February , 2005, Source: PTI
Thanks every one
S.MANOHAR
GR HR HEAD/NSPL CHENNAI
09444207703
From India, Madras
Mr. Bhatia,
I totally agree with you. Your suggestion of posting the employee under a different manager is also worthwhile since the employee may have a grudge against the particular manager only. Looking at compassionate angle is worthwhile.
N K Acharya
From India, Hosur
I totally agree with you. Your suggestion of posting the employee under a different manager is also worthwhile since the employee may have a grudge against the particular manager only. Looking at compassionate angle is worthwhile.
N K Acharya
From India, Hosur
Using abusive language by an employee as such against a superior authority per-se, should not by it self lead to his dismissal. It will be just and equitable that an over all view should be taken to impose a proportionate punishment, if only we want to render natural justice to the employee. The quality and content of the employee's track record, along with the scope of self-reformation of the employee, apart from all other confirmed evidences both for and against, should correctly guide the ' Disciplinary Authority '. The Disciplinary Authority should discern independently, if mouthing an abusive language should warrant such a severe and harsh / capital punishment as ' Dismissal '. At it's best, worst or most, the punishment can be, imposing a reasonable sufferance under major penalty proceedings.
Do not we have any other upright and righteous means of ' disciplining an employee for his worst behavior '?, other than exercising the one and only soft option i.e a ruthless disciplinary action. What has happened to certain universally accepted / acceptable ' Human Resources Dimensions ' as ' Employee Counseling ' , ' Speaking To Employees' union, ' Delivering Training Efficacy In Employee's Personal Effectiveness, Inter personal Relationships & Group Dynamics. These things too constitute, what we so liberally term as ' Out Of The Box Thinking ', but only just very exceptionally act on these HR virtues.
It's little / wonder, that most of the posts received suggest a very rigorous punishment as out-right dismissal of an employee, who is not otherwise gravely charged with violence at the work-place, perpetration of a fraud, and or blatantly working against the interests / concerns of the organization. Since the employee used foul and filthy language, he should be educated to suitably tender immediately an open / written unconditional apology to the concerned officer and to the company, failing which he may be threatened with 'administrative suspension with it's consequences. Quite perhaps, this will then afford a cooling period for the employee to introspect, regret and remorse for his gross misconduct, apart from the deterrent of loss of his self-esteem, honor, damnation and condemnation. ' The Fear Of Future ', in all wisdom, can still discipline the employee, other than company's want of timely prudence, as can be so comfortably be learn t from the ' Maruti company's past sordid state.'
From India, Mumbai
Do not we have any other upright and righteous means of ' disciplining an employee for his worst behavior '?, other than exercising the one and only soft option i.e a ruthless disciplinary action. What has happened to certain universally accepted / acceptable ' Human Resources Dimensions ' as ' Employee Counseling ' , ' Speaking To Employees' union, ' Delivering Training Efficacy In Employee's Personal Effectiveness, Inter personal Relationships & Group Dynamics. These things too constitute, what we so liberally term as ' Out Of The Box Thinking ', but only just very exceptionally act on these HR virtues.
It's little / wonder, that most of the posts received suggest a very rigorous punishment as out-right dismissal of an employee, who is not otherwise gravely charged with violence at the work-place, perpetration of a fraud, and or blatantly working against the interests / concerns of the organization. Since the employee used foul and filthy language, he should be educated to suitably tender immediately an open / written unconditional apology to the concerned officer and to the company, failing which he may be threatened with 'administrative suspension with it's consequences. Quite perhaps, this will then afford a cooling period for the employee to introspect, regret and remorse for his gross misconduct, apart from the deterrent of loss of his self-esteem, honor, damnation and condemnation. ' The Fear Of Future ', in all wisdom, can still discipline the employee, other than company's want of timely prudence, as can be so comfortably be learn t from the ' Maruti company's past sordid state.'
From India, Mumbai
Dear Prasad
Your analysis is excellent and you have opened the mind with human touch. One thing is sure, if an employee has a fear of future he is sure to be disciplined inside and outside the factory. whereas, now the milieu has changed. People can fetch an alternative jobs and damn care of their employment. Now, how can we expect discipline from such workers who want to dominate and show their local power in the shop floor. I have the strong opinion, in recent past, coercing, cajoling, counseling has become a disappearing fad. At the end of the day, Productivity should be met. Each one's role has become so tight and tough. In private sector performance matters.The Shop Floor now a days is full of frictions and one has to get the work from a worker.
Your point is extreamly valid that Employee relations needs to be built and nurtured. In a good progressive company these are ironed out and there is good binding relationship between Supervisors and worker. Therefore, your approach entirely revolves around culture building and bringing in better understanding. The need for rigorous punishment to the extent of dismissal is needed when you dont have real time to do these correctional exercises. Your suggestions are thougt provoking and to be emulated at once.
S.MANOHAR
GR HR HEAD/NSPL CHENNAI
09444207703.
From India, Madras
Your analysis is excellent and you have opened the mind with human touch. One thing is sure, if an employee has a fear of future he is sure to be disciplined inside and outside the factory. whereas, now the milieu has changed. People can fetch an alternative jobs and damn care of their employment. Now, how can we expect discipline from such workers who want to dominate and show their local power in the shop floor. I have the strong opinion, in recent past, coercing, cajoling, counseling has become a disappearing fad. At the end of the day, Productivity should be met. Each one's role has become so tight and tough. In private sector performance matters.The Shop Floor now a days is full of frictions and one has to get the work from a worker.
Your point is extreamly valid that Employee relations needs to be built and nurtured. In a good progressive company these are ironed out and there is good binding relationship between Supervisors and worker. Therefore, your approach entirely revolves around culture building and bringing in better understanding. The need for rigorous punishment to the extent of dismissal is needed when you dont have real time to do these correctional exercises. Your suggestions are thougt provoking and to be emulated at once.
S.MANOHAR
GR HR HEAD/NSPL CHENNAI
09444207703.
From India, Madras
Mr.Ram Prasad
Your suggestion to deal with an act of indicscipline from a reformative point of view and from the angle of behavioural therapy, is no doubt worth
considering as making it as part of HR process of educating and enlighteningboth the workmen as wellas supervisors through trainings and coachings on controlling behaviour and anger management.Such efforts may mitigate the occurrence of such incidents, if not totally eliminate them.Theefore an act of discipline is required to be seen from a different perspective.
Every one expects a HR professional to be a corporate monk, only to condone an act of abuse, only to forgive an act of assault, and only to excuse an act of insubordination. This is too utopian to be practiced in evry case.Given the school environment and social and family environment in India, have we not been taught to refrain from using foul langauge in our childhood and adolescence?Have we not been admonished to be calm, when we were found in an agressive mood or action? have we not recieved sermons in childhood and adolescence about virtues of being polite to others?Have we not been counselled when we were caught indulging in some mischief?Inspite of all these teachings, preachings, sermons, lectures and lessons on good conduct from childhood, people, when they grow up still indluge in breaching it at work places.
There is a subtle line of difference between a behavioural aberration and an act of indiscipline amounting to a miscondcut, calling for two different treatments. the former needs a reformative approach and teh latter calls for deterrent approach- an aproach that should deter not only the delinquent emlployee but also others from committing such acts of misconduct in future.The HR shall be aware as to how to draw thsi line of demarkation to adpt right approach in each case. In the modern globalised environment and competetive markets,survival of business depends up on a disciplined work force and peace and harmony in indutrial relations..Therefore, while imposing the penalty, the HR needs to balnce the interests of the individual workman and the interests of business and take a call on the quantum of penalty.
B.Saikumar
HR & labour Law advisor
Mumbai
From India, Mumbai
Your suggestion to deal with an act of indicscipline from a reformative point of view and from the angle of behavioural therapy, is no doubt worth
considering as making it as part of HR process of educating and enlighteningboth the workmen as wellas supervisors through trainings and coachings on controlling behaviour and anger management.Such efforts may mitigate the occurrence of such incidents, if not totally eliminate them.Theefore an act of discipline is required to be seen from a different perspective.
Every one expects a HR professional to be a corporate monk, only to condone an act of abuse, only to forgive an act of assault, and only to excuse an act of insubordination. This is too utopian to be practiced in evry case.Given the school environment and social and family environment in India, have we not been taught to refrain from using foul langauge in our childhood and adolescence?Have we not been admonished to be calm, when we were found in an agressive mood or action? have we not recieved sermons in childhood and adolescence about virtues of being polite to others?Have we not been counselled when we were caught indulging in some mischief?Inspite of all these teachings, preachings, sermons, lectures and lessons on good conduct from childhood, people, when they grow up still indluge in breaching it at work places.
There is a subtle line of difference between a behavioural aberration and an act of indiscipline amounting to a miscondcut, calling for two different treatments. the former needs a reformative approach and teh latter calls for deterrent approach- an aproach that should deter not only the delinquent emlployee but also others from committing such acts of misconduct in future.The HR shall be aware as to how to draw thsi line of demarkation to adpt right approach in each case. In the modern globalised environment and competetive markets,survival of business depends up on a disciplined work force and peace and harmony in indutrial relations..Therefore, while imposing the penalty, the HR needs to balnce the interests of the individual workman and the interests of business and take a call on the quantum of penalty.
B.Saikumar
HR & labour Law advisor
Mumbai
From India, Mumbai
Dear Sai Kumar,
Abs true. Nothing at all can justify abusive behavior. My response was also aimed at providing our younger friends with a process of arriving at a decision and taking action that can stand the test of logic as well legality, in case some one tries to contest it in the Management, Union, Court or just simple office politics,
Dilip.
From India, Pune
Abs true. Nothing at all can justify abusive behavior. My response was also aimed at providing our younger friends with a process of arriving at a decision and taking action that can stand the test of logic as well legality, in case some one tries to contest it in the Management, Union, Court or just simple office politics,
Dilip.
From India, Pune
Dear Saikumar,
Fully agree with your views. You would appreciate that many a time we resort to a compromising stand for fear of industrail relations going awry. Having so many challenges such as stiff competition, customers' demand fulfillment, quality issues, union pressure, disruption of peace and harmony etc., as such, when the stake is so high, one always thinks of easy course of action, that is, an act condonation in the garb of modern management reformative tactics. In fact, when we resort to an easy course of action (condonation), we not only bring the issues to an illogical end but we tend to give the opportunities to rise again in the same or different colour, shapes and sizes.
Disciplinary action is sometimes imperative not only to bring reformative change in the action and behaviour of one particular person but it also sends a strong message down the line that condonation is not sacrosant to an act of indiscipline and perpetrator/s would be dealt severely, if need be.
Regards,
Rakesh Pd Srivastav
From India, Gurgaon
Fully agree with your views. You would appreciate that many a time we resort to a compromising stand for fear of industrail relations going awry. Having so many challenges such as stiff competition, customers' demand fulfillment, quality issues, union pressure, disruption of peace and harmony etc., as such, when the stake is so high, one always thinks of easy course of action, that is, an act condonation in the garb of modern management reformative tactics. In fact, when we resort to an easy course of action (condonation), we not only bring the issues to an illogical end but we tend to give the opportunities to rise again in the same or different colour, shapes and sizes.
Disciplinary action is sometimes imperative not only to bring reformative change in the action and behaviour of one particular person but it also sends a strong message down the line that condonation is not sacrosant to an act of indiscipline and perpetrator/s would be dealt severely, if need be.
Regards,
Rakesh Pd Srivastav
From India, Gurgaon
Dear Saikumar,
Fully agree with your views. You would appreciate that many a time we resort to a compromising stand for fear of industrial relations going awry. Having so many challenges such as stiff competition, customers' demand fulfillment, quality issues, union pressure, disruption of peace and harmony etc., as such, when the stake is so high, one always thinks of easy course of action, that is, an act of condonation in the garb of modern management reformative tactics. In fact, when we resort to an easy course of action (condonation), we not only bring the issues to an illogical end but we tend to give the opportunities to rise again in the same or different colour, shapes and sizes.
Disciplinary action is sometimes imperative not only to bring reformative change in the action and behaviour of one particular person but it also sends a strong message down the line that condonation is not sacrosant to an act of indiscipline and perpetrator/s would be dealt severely, if need be.
Regards,
Rakesh Pd Srivastav[/QUOTE]
From India, Gurgaon
Fully agree with your views. You would appreciate that many a time we resort to a compromising stand for fear of industrial relations going awry. Having so many challenges such as stiff competition, customers' demand fulfillment, quality issues, union pressure, disruption of peace and harmony etc., as such, when the stake is so high, one always thinks of easy course of action, that is, an act of condonation in the garb of modern management reformative tactics. In fact, when we resort to an easy course of action (condonation), we not only bring the issues to an illogical end but we tend to give the opportunities to rise again in the same or different colour, shapes and sizes.
Disciplinary action is sometimes imperative not only to bring reformative change in the action and behaviour of one particular person but it also sends a strong message down the line that condonation is not sacrosant to an act of indiscipline and perpetrator/s would be dealt severely, if need be.
Regards,
Rakesh Pd Srivastav[/QUOTE]
From India, Gurgaon
Thanks Mr Srivatsav Noted the latest amendment. However the fact remains that the employee can move the court directly and in cases of dismissals, reference will be made unlike 1960s and 70s where many managements have managed to "no refernce" and many have approached HCs for quashing the orders of the govt.In fact reference itself had been the subject matter in many appeals and we used to drag cases for 10 to 15 years.
I have no comments on punishment and it is the Managements decision based on so many factors.I only said if there had been any provocation from the concerned Managers side, then I would not advise dismissal.Both on legal and moral grounds. If there is no such provocation, then dismissal is the pu nishment.
It is my personal opinion...capital punishment both in criminal law and in labour law are not desirable in Civilised soceity. If a person is using filthy langauage, I would ignore him I have seen people who used filthy language have corrected when they are ignored. Many do not agree with me and I had been successful in converting atleast a dozen guys in my career.
But the management always resist by saying that it is not running a 'rehabilitation centre " which is also true
Thanks once again
Sivasankaran
From India, Chennai
I have no comments on punishment and it is the Managements decision based on so many factors.I only said if there had been any provocation from the concerned Managers side, then I would not advise dismissal.Both on legal and moral grounds. If there is no such provocation, then dismissal is the pu nishment.
It is my personal opinion...capital punishment both in criminal law and in labour law are not desirable in Civilised soceity. If a person is using filthy langauage, I would ignore him I have seen people who used filthy language have corrected when they are ignored. Many do not agree with me and I had been successful in converting atleast a dozen guys in my career.
But the management always resist by saying that it is not running a 'rehabilitation centre " which is also true
Thanks once again
Sivasankaran
From India, Chennai
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