Hi Chitralekha,
Let us know whether you have cleared all the formalities during the full and final settlement. If in the document, he has written that he has no pending dues upon him and has signed, then there is no need to proceed with this case.
Soniya Bhardwaj
Manager HR
From India, Chandra
Acknowledge(0)
Amend(0)
Let us know whether you have cleared all the formalities during the full and final settlement. If in the document, he has written that he has no pending dues upon him and has signed, then there is no need to proceed with this case.
Soniya Bhardwaj
Manager HR
From India, Chandra
Acknowledge(0)Amend(0)
Dear Chitralekha,
There are a couple of personality traits that are vital for group dynamics and candidates must be screened during the recruitment process or the probation period, at the most. They are - Social Effectiveness (ability to stay together with the group and contribute positively); Cooperation (cooperative with the team members); Sense of Responsibility; Liveliness (ability to stay composed under duress/ remain effective during ambiguity); and Courage (Physical and moral courage).
Lack of any one or all of them should raise alarm bells. Any amount of competence cannot compensate for the lack of these qualities. The Senior Manager Finance fails on all counts.
Unfortunately, with all the background checks, various selection tools, and due precautions, such undesirable elements do manage to get recruited. Reasons are many - hurry to recruit/seemingly good profile/subjectivity during interviews, etc. However, the probation period is meant to check such attitudinal aberrations - He should have gone!! And should not have been confirmed.
Compared to other industries, the construction industry suffers from the quality of manpower all around the world. I was myself part of the $19 billion USD project abroad, with 50,000 workers from more than 52 countries. You had excellent professionals and you had the worst of rogues too. A typical HR atmosphere is missing, and the HSSE does the bulk of the jobs. However, the rules are always stringent - Either you follow the company rules or you are out. As rightly pointed out, he is not a workman. And as per his contract, his misconduct deserves him to be terminated. And no legal system approves of such a litigation by a manager.
In case your CMD wishes to close the case, it must be to hush up the issue and avoid any legal hassle. However, we may be setting a precedent for more such litigations. Hence, the decision of your COO and Head HR to fight out in the court of law is not out of place.
Kindly remember that in office procedure, there is nothing called verbal counseling. We do it out of good faith. But all such meetings, counselings, written advisories/warnings, etc., must be recorded. His refusal to accept the letter should have been endorsed as such by a witness, and records kept. A Good Chit to such black sheep will only propagate the misery of many companies in the future and does not deserve sympathy for the common good. I know of one AGM HR who was fired for misconduct and could not get another job.
Even if the company's name has come by mistake, there is no harm done. We as a community are in a learning curve. The best companies learn from their own failures and make their own case studies. Great people make fun of themselves and laugh it out. No big deal.
I will suggest to all my HR colleagues to keep the probation period to analyze and confirm behavior patterns before confirmation. Skills can be trained and bettered, but bad character traits are not trainable. People suppress it to hide their abnormality. But deliberate Stress Management brings the true self out in the open.
I also look forward to many more suggestions from this learned galaxy of professionals.
From India, Delhi
Acknowledge(0)Amend(0)
7There are a couple of personality traits that are vital for group dynamics and candidates must be screened during the recruitment process or the probation period, at the most. They are - Social Effectiveness (ability to stay together with the group and contribute positively); Cooperation (cooperative with the team members); Sense of Responsibility; Liveliness (ability to stay composed under duress/ remain effective during ambiguity); and Courage (Physical and moral courage).
Lack of any one or all of them should raise alarm bells. Any amount of competence cannot compensate for the lack of these qualities. The Senior Manager Finance fails on all counts.
Unfortunately, with all the background checks, various selection tools, and due precautions, such undesirable elements do manage to get recruited. Reasons are many - hurry to recruit/seemingly good profile/subjectivity during interviews, etc. However, the probation period is meant to check such attitudinal aberrations - He should have gone!! And should not have been confirmed.
Compared to other industries, the construction industry suffers from the quality of manpower all around the world. I was myself part of the $19 billion USD project abroad, with 50,000 workers from more than 52 countries. You had excellent professionals and you had the worst of rogues too. A typical HR atmosphere is missing, and the HSSE does the bulk of the jobs. However, the rules are always stringent - Either you follow the company rules or you are out. As rightly pointed out, he is not a workman. And as per his contract, his misconduct deserves him to be terminated. And no legal system approves of such a litigation by a manager.
In case your CMD wishes to close the case, it must be to hush up the issue and avoid any legal hassle. However, we may be setting a precedent for more such litigations. Hence, the decision of your COO and Head HR to fight out in the court of law is not out of place.
Kindly remember that in office procedure, there is nothing called verbal counseling. We do it out of good faith. But all such meetings, counselings, written advisories/warnings, etc., must be recorded. His refusal to accept the letter should have been endorsed as such by a witness, and records kept. A Good Chit to such black sheep will only propagate the misery of many companies in the future and does not deserve sympathy for the common good. I know of one AGM HR who was fired for misconduct and could not get another job.
Even if the company's name has come by mistake, there is no harm done. We as a community are in a learning curve. The best companies learn from their own failures and make their own case studies. Great people make fun of themselves and laugh it out. No big deal.
I will suggest to all my HR colleagues to keep the probation period to analyze and confirm behavior patterns before confirmation. Skills can be trained and bettered, but bad character traits are not trainable. People suppress it to hide their abnormality. But deliberate Stress Management brings the true self out in the open.
I also look forward to many more suggestions from this learned galaxy of professionals.
From India, Delhi
Acknowledge(0)Amend(0)
Hello Chitralekha,
I have gone through the facts of the case and members' comments. There are clearly certain lapses in handling the case which may make your case weak in court.
1) In such circumstances, you should have obtained his resignation instead of choosing the route of termination.
2) Even by terminating his services, you have not stuck to the terms of the appointment letter in letter and spirit, which permits you to terminate his services in the event of any misconduct committed by him. By refraining from mentioning the cause in the letter of termination, you rendered the termination plain and without any justification, violating the terms of the appointment, let alone the principles of natural justice.
3) Even if you present letters of warning and counseling regarding his past bad behavior, the court probably may not take cognizance of the same, since those incidents were closed by the said letters of warning, etc., and do not constitute a present cause for his termination since you failed to relate them to his termination. You cannot now do it behind his back, which is violative of the principles of natural justice.
4) Even if there is an enabling clause in the letter of appointment empowering the employer to terminate the services of an employee in the event of any misconduct committed by him, the courts may not permit a summary termination for misconduct without hearing him as per the principles of natural justice since the allegation will be stigmatic and hurt his career and livelihood. You should have issued a charge sheet or at least a show-cause notice putting him on notice of his alleged behavior, and he should have been heard in respect of the charge. After hearing him, you should have taken an appropriate decision.
5) Leave alone issuing a show-cause notice, you have not even mentioned the reasons for termination acceding to the request of the employee.
You should consider the chances of your success in court with the help of a specialist in the matter and then make a decision. The employee may also come up with his own theories of prejudice, etc., against you which you need to defend in court. It is not easy to convince courts and to withstand the examination by the employee's lawyer without solid evidence. You should first ascertain from your advocate whether the evidence you have to defend your action will be adequate to support your decision. You always need to take a considered view but not an emotional view in such matters; otherwise, you will be beating a dead snake and shedding a lot of sweat, finally realizing that all the effort has gone to waste.
B. Saikumar
Mumbai
From India, Mumbai
Acknowledge(0)Amend(0)
I have gone through the facts of the case and members' comments. There are clearly certain lapses in handling the case which may make your case weak in court.
1) In such circumstances, you should have obtained his resignation instead of choosing the route of termination.
2) Even by terminating his services, you have not stuck to the terms of the appointment letter in letter and spirit, which permits you to terminate his services in the event of any misconduct committed by him. By refraining from mentioning the cause in the letter of termination, you rendered the termination plain and without any justification, violating the terms of the appointment, let alone the principles of natural justice.
3) Even if you present letters of warning and counseling regarding his past bad behavior, the court probably may not take cognizance of the same, since those incidents were closed by the said letters of warning, etc., and do not constitute a present cause for his termination since you failed to relate them to his termination. You cannot now do it behind his back, which is violative of the principles of natural justice.
4) Even if there is an enabling clause in the letter of appointment empowering the employer to terminate the services of an employee in the event of any misconduct committed by him, the courts may not permit a summary termination for misconduct without hearing him as per the principles of natural justice since the allegation will be stigmatic and hurt his career and livelihood. You should have issued a charge sheet or at least a show-cause notice putting him on notice of his alleged behavior, and he should have been heard in respect of the charge. After hearing him, you should have taken an appropriate decision.
5) Leave alone issuing a show-cause notice, you have not even mentioned the reasons for termination acceding to the request of the employee.
You should consider the chances of your success in court with the help of a specialist in the matter and then make a decision. The employee may also come up with his own theories of prejudice, etc., against you which you need to defend in court. It is not easy to convince courts and to withstand the examination by the employee's lawyer without solid evidence. You should first ascertain from your advocate whether the evidence you have to defend your action will be adequate to support your decision. You always need to take a considered view but not an emotional view in such matters; otherwise, you will be beating a dead snake and shedding a lot of sweat, finally realizing that all the effort has gone to waste.
B. Saikumar
Mumbai
From India, Mumbai
Acknowledge(0)Amend(0)
Dear Chitralekha, I read your article very deeply same happens in our company and we have taken same decision . Your case is just a mirror image of what happen in our organisation Regards, Neetu
From Malaysia, Klang
Acknowledge(0)Amend(0)
From Malaysia, Klang
Acknowledge(0)Amend(0)
Hi, Greetings to All Members,
Hi, Chitra,
I support M. Basha's concepts. You have to put in court all letters received and provide a copy to the employee, whether it is a hard or soft copy. The process should include: 1st advice letter, warning letter, 2nd warning letter, and final letter.
S. Rao
Executive HR & IR
From India, New Delhi
Acknowledge(0)Amend(0)
Hi, Chitra,
I support M. Basha's concepts. You have to put in court all letters received and provide a copy to the employee, whether it is a hard or soft copy. The process should include: 1st advice letter, warning letter, 2nd warning letter, and final letter.
S. Rao
Executive HR & IR
From India, New Delhi
Acknowledge(0)Amend(0)
In any termination case on the ground of misconduct, it is necessary to establish the charges leveled against the employee. Only thereafter can an employer/company terminate the person. Alternatively, the employer can hold a suspension pending an inquiry against the charged employee until the charges are proven.
Secondly, if it is mentioned in the appointment letter that in case of termination by the employer, no payment of the notice period will be made by the company to the employee, in this case, the company shall not be liable to pay the amount of the notice period.
From India
Acknowledge(0)Amend(0)
Secondly, if it is mentioned in the appointment letter that in case of termination by the employer, no payment of the notice period will be made by the company to the employee, in this case, the company shall not be liable to pay the amount of the notice period.
From India
Acknowledge(0)Amend(0)
Hi,
I just want to know for what reason you have given in the termination letter because you have stated that after his request, you have not mentioned a reason "MISCONDUCT." If you have not mentioned the reason for misconduct in the termination letter, then what is the basis for terminating his service due to misconduct?
Vijay
From India, Madras
Acknowledge(0)Amend(0)
I just want to know for what reason you have given in the termination letter because you have stated that after his request, you have not mentioned a reason "MISCONDUCT." If you have not mentioned the reason for misconduct in the termination letter, then what is the basis for terminating his service due to misconduct?
Vijay
From India, Madras
Acknowledge(0)Amend(0)
Chitralekha ji,
I have gone through almost every posting in this thread. In any legal matter, I do not wish to make comments without reading all the documents pertaining to the case and seeing all the facts and figures, but still, I say that prima facie your case seems to be weak. However, I would like to give certain tips to all the members so that they can take care in the future in such or similar circumstances.
1. It is always beneficial to obtain resignation from certain classes of employees rather than issuing a termination letter.
2. Collect as much documentary evidence as possible before taking any action.
3. Once you take any action, be firm in your decision regardless of the consequences.
4. While taking action, you should be very fair and reasonable.
5. Avoid mentioning the name of the company or individual when posting any kind of issues in a public forum.
6. Do not include your name at the end of a post when you wish to remain anonymous.
Thank you.
From India, Mumbai
Acknowledge(0)Amend(0)
I have gone through almost every posting in this thread. In any legal matter, I do not wish to make comments without reading all the documents pertaining to the case and seeing all the facts and figures, but still, I say that prima facie your case seems to be weak. However, I would like to give certain tips to all the members so that they can take care in the future in such or similar circumstances.
1. It is always beneficial to obtain resignation from certain classes of employees rather than issuing a termination letter.
2. Collect as much documentary evidence as possible before taking any action.
3. Once you take any action, be firm in your decision regardless of the consequences.
4. While taking action, you should be very fair and reasonable.
5. Avoid mentioning the name of the company or individual when posting any kind of issues in a public forum.
6. Do not include your name at the end of a post when you wish to remain anonymous.
Thank you.
From India, Mumbai
Acknowledge(0)Amend(0)
Hi Chitra,
This is somewhat like "take the horse to the pond" but do not say to the horse, "come on now drink it," because the horse is aware that it has 'water to drink' in front.
Most organizations do not follow the same rules in the contract-agreement or appointment letter at the higher level of hierarchy. Therefore, any letter or communication being issued to such an employee should be carefully reviewed before issuance.
Santhan Raj
From India, Hyderabad
Acknowledge(0)Amend(0)
This is somewhat like "take the horse to the pond" but do not say to the horse, "come on now drink it," because the horse is aware that it has 'water to drink' in front.
Most organizations do not follow the same rules in the contract-agreement or appointment letter at the higher level of hierarchy. Therefore, any letter or communication being issued to such an employee should be carefully reviewed before issuance.
Santhan Raj
From India, Hyderabad
Acknowledge(0)Amend(0)
Hi,
Do you have proof of a complaint from his subordinates that their head is troubling them? How will you prove that he was displaying rude behavior? If you have written a complaint against his misconduct and if a letter was issued to him based on that complaint, then only I think the court will listen to you. Otherwise, as per the contract, you have to give three months' pay because you only paid one month's pay, which indicates that you are terminating him abruptly and not on grounds of misconduct, especially since you paid only one month's salary. The court may argue that he is asking for three months' salary, which is why you are now presenting fake evidence.
Regards,
Rajiv Sinha
From India, Mumbai
Acknowledge(0)Amend(0)
Do you have proof of a complaint from his subordinates that their head is troubling them? How will you prove that he was displaying rude behavior? If you have written a complaint against his misconduct and if a letter was issued to him based on that complaint, then only I think the court will listen to you. Otherwise, as per the contract, you have to give three months' pay because you only paid one month's pay, which indicates that you are terminating him abruptly and not on grounds of misconduct, especially since you paid only one month's salary. The court may argue that he is asking for three months' salary, which is why you are now presenting fake evidence.
Regards,
Rajiv Sinha
From India, Mumbai
Acknowledge(0)Amend(0)Engage with peers to discuss and resolve work and business challenges collaboratively - share and document your knowledge. Our AI-powered platform, features real-time fact-checking, peer reviews, and an extensive historical knowledge base. - Join & Be Part Of Our Community.
Compensation payable under Employees Compensation Act even in case of negligence - SC 4.2.2016.pdf
Case studies on R & S.doc