Dear Sir,
If employees are on illegal strike for more than 90 Days,
Can we terminate them on basis of absenteeism without prior intimation ?
If yes then , please share some procedure and format.
Regards,
Vrushy
From India, Nasik
11If employees are on illegal strike for more than 90 Days,
Can we terminate them on basis of absenteeism without prior intimation ?
If yes then , please share some procedure and format.
Regards,
Vrushy
From India, Nasik
As Mrugen has rightly said, before coming to any conclusion call all the employees or their representatives ask their demands and reason for illegal strike, sort it out amicable across the table. Please ensure that a Management representative/decision maker should be accompanying you. Also check whether they have formed any union
From India, Ahmadabad
From India, Ahmadabad
Dear Vrushy ji,
In ID Act, there is a provision for penalties under chapter VI. Section 26 deals with penalty for illegal strike / lockouts. ID Act does not say any thing on punishment by way of dismissal.
However, there are some case laws on this subject.
Bata Vs. DM Ganguly 1961 I LLJ 303: Participation in illegal strike nay not necessarily and in every case be punished with dismissal. Where enquiry has been properly held and employer has imposed punishment of dismissal should not interfere unless it finds unfair labour practice or victimization against the employee.
Experts are requested to comment.
From India, Mumbai
In ID Act, there is a provision for penalties under chapter VI. Section 26 deals with penalty for illegal strike / lockouts. ID Act does not say any thing on punishment by way of dismissal.
However, there are some case laws on this subject.
Bata Vs. DM Ganguly 1961 I LLJ 303: Participation in illegal strike nay not necessarily and in every case be punished with dismissal. Where enquiry has been properly held and employer has imposed punishment of dismissal should not interfere unless it finds unfair labour practice or victimization against the employee.
Experts are requested to comment.
From India, Mumbai
Dear Vrushy,
yes you can terminate the employee but you have to follow the principals of natural justice you have to conduct domestic enquiry.
please check whether the employee is protected workmen or not.
From India, Velluru
yes you can terminate the employee but you have to follow the principals of natural justice you have to conduct domestic enquiry.
please check whether the employee is protected workmen or not.
From India, Velluru
Dear Vrushy,
From your question, one thing is not clear i.e. how can a single person be called to be on Illegal Strike continuously for 90 days without giving any notice or application stating his grievances which he is demands to be redressed.
What I understand is that the employee is an individual not a group. The employee is a permanent employee. If so, he may be said to be on unauthorized absence. In such case, you have to give him atleast 2 chances to explain the reasons for his such prolonged absence. Both letters are to be sent under Regd. or Speed Post, giving a reasonable gap between the two, on his Home Address available with the Company. If no reply is received within the given period limit (say 15 days of receipt of letter), An Inquiry Committee may be constituted by the Disciplinary Authority and a Final Notice, to the erring employee to report for duty within 15 days, may be sent clearly stating that failing which the inquiry proceedings with be decided Ex-parte, without any further reference.
After observing these formalities of "Natural Justice" the Disciplinary Authority may ask the I.O. to conclude the inquiry proceedings Ex-Parte giving his findings/conclusion. Then D.A. may order for termination and the Order may be issued under his signature accordingly.
Best wishes.
AK Jain
HR Personnel, NCL, CIL
From India, Jabalpur
From your question, one thing is not clear i.e. how can a single person be called to be on Illegal Strike continuously for 90 days without giving any notice or application stating his grievances which he is demands to be redressed.
What I understand is that the employee is an individual not a group. The employee is a permanent employee. If so, he may be said to be on unauthorized absence. In such case, you have to give him atleast 2 chances to explain the reasons for his such prolonged absence. Both letters are to be sent under Regd. or Speed Post, giving a reasonable gap between the two, on his Home Address available with the Company. If no reply is received within the given period limit (say 15 days of receipt of letter), An Inquiry Committee may be constituted by the Disciplinary Authority and a Final Notice, to the erring employee to report for duty within 15 days, may be sent clearly stating that failing which the inquiry proceedings with be decided Ex-parte, without any further reference.
After observing these formalities of "Natural Justice" the Disciplinary Authority may ask the I.O. to conclude the inquiry proceedings Ex-Parte giving his findings/conclusion. Then D.A. may order for termination and the Order may be issued under his signature accordingly.
Best wishes.
AK Jain
HR Personnel, NCL, CIL
From India, Jabalpur
Dear Vrushy,
If only one employee is not coming to work i.e. absence without prior approval and please check the terms & conditions of the appointment letter, I am sure it would have been mentioned in the letter. If not pleae follow the the process mentioned by Mr AK Jain sending communication to the individual through registered post. Send two communication giving sufficent time to respond i.e. one week on receipt of the letter, and please do mention in the second communication clearly that if he is not reponding his employment with the organzation will stand cancelled / terminated. And send third communication with termination letter.
As you have not clearly mentioned about your organization, the above you may implement in case your organizaton registered under S&E Act. If you are working for an Industry the process mentioned by Mr AK Jain would be applicable as per Industrial Disputes Act.
Thanks
Srinu Kumar
From India, Hyderabad
If only one employee is not coming to work i.e. absence without prior approval and please check the terms & conditions of the appointment letter, I am sure it would have been mentioned in the letter. If not pleae follow the the process mentioned by Mr AK Jain sending communication to the individual through registered post. Send two communication giving sufficent time to respond i.e. one week on receipt of the letter, and please do mention in the second communication clearly that if he is not reponding his employment with the organzation will stand cancelled / terminated. And send third communication with termination letter.
As you have not clearly mentioned about your organization, the above you may implement in case your organizaton registered under S&E Act. If you are working for an Industry the process mentioned by Mr AK Jain would be applicable as per Industrial Disputes Act.
Thanks
Srinu Kumar
From India, Hyderabad
Dear Vrushi,
Please let us know whether you get the order from Ind. Court declaring the strike as illegal. If yes, then whether the strike was withdrawn immediately within 24 hours, if yes, then it will not be illegal strike.
Only participating in illegal strike will not be amount to dismissal, which would be harsh punishment.
It need to club all the charges like indiscipline, disobeying legal orders of superior, threatening to co-employees, distroying / sabotage the property of company, etc.
You need to issue the chargesheet, conduct the domestic enquiry, observe priciple of natural justice.
Give chance to the concern employees to defend themselve, issue the enquiry report to them and second show cause notice.
Then based on direction of the Management you can issue dismissal order for the concerned employees.
Regards,
Avinash K.
From India, Mumbai
Please let us know whether you get the order from Ind. Court declaring the strike as illegal. If yes, then whether the strike was withdrawn immediately within 24 hours, if yes, then it will not be illegal strike.
Only participating in illegal strike will not be amount to dismissal, which would be harsh punishment.
It need to club all the charges like indiscipline, disobeying legal orders of superior, threatening to co-employees, distroying / sabotage the property of company, etc.
You need to issue the chargesheet, conduct the domestic enquiry, observe priciple of natural justice.
Give chance to the concern employees to defend themselve, issue the enquiry report to them and second show cause notice.
Then based on direction of the Management you can issue dismissal order for the concerned employees.
Regards,
Avinash K.
From India, Mumbai
A case for action agaisnt striking employees will survive only when the strike is illegal. You cannot take action for participating in legal strike. Who declared the strike illegal ? If the strike is decalred illegal, even then you cannot directly terminate the servcies of workmen. You need to serve chargesheets on the employees concerned and conduct departmental enquiry as some learned members above suggested to prove their guilt. Even then, the penalty of dismissal for mere participation in strike may not be considered proportionate unless it is coupled with some violence or gross violation of discipline, as Avinash said.Further you must have some evidence that the employees are continung strike despite your request to resume duties.
Strike is a slippery path and one should walk carefully on it. When employees in concert go on strike, it is an industrial relations problem and You need to assess the feasibility of conducting domestic enquiries enmass and consequencies of initiating disciplinary action against so many employees at a time on production, probable security issues and future litigation etc.Please do your ground work well since any extreme action in such cases may lead to litigation.
B.Saikumar
navi Mumbai
From India, Mumbai
Strike is a slippery path and one should walk carefully on it. When employees in concert go on strike, it is an industrial relations problem and You need to assess the feasibility of conducting domestic enquiries enmass and consequencies of initiating disciplinary action against so many employees at a time on production, probable security issues and future litigation etc.Please do your ground work well since any extreme action in such cases may lead to litigation.
B.Saikumar
navi Mumbai
From India, Mumbai
Dear .
For legal strike you have to wait till court decision . Management can not take any action when the matter is in the court. About illegal strike , the management can take action on the ground of absenteeism .
As expert says that to follow the principal of natural justice it is true and mandatory because you need to give ample opportunity to the employee . About termination , the domestic inquiry is must .On the basis of findings given by inquiry officer , the management can take a call for dismissal .
Thanks .
Deepak M.
From India, Thana
For legal strike you have to wait till court decision . Management can not take any action when the matter is in the court. About illegal strike , the management can take action on the ground of absenteeism .
As expert says that to follow the principal of natural justice it is true and mandatory because you need to give ample opportunity to the employee . About termination , the domestic inquiry is must .On the basis of findings given by inquiry officer , the management can take a call for dismissal .
Thanks .
Deepak M.
From India, Thana
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