How to write a warning letter to an employee who watched a female locker room during a girl changing her cloth?
From India, Udaipur
From India, Udaipur
Dear Harish,
A few questions and comments on your post are as below:
How anyone can peep inside the changing room for women? Why the room is not secured? The privacy of the staff must be maintained. Far from doing it deliberately, nobody should be able to do it accidentally also.
Do you have a solid proof of someone peeping in the changing room? Is there a piece of material evidence? What happened when someone discovered it? Have you obtained a statement from the employee who did this misconduct?
You have written, "employee who watched a female locker room during a girl changing her cloth". Was the employee a man or a woman?
Whether man or woman, whoever peeped in the changing room, has breached the privacy. Why do you wish to let off an employee with just a warning letter? Suppose the woman employee comes to know that she was watched secretly while changing her clothes, how ashamed will she be? Have you thought of this?
Watching someone while changing clothes is nothing but perversity. An organisation should not have any place for employees who wish to satisfy their prurience. Therefore, if you have sufficient proof of the misconduct, then conduct a domestic enquiry and sack the employee. It will send a message to all the women employees that your organisation does not compromise their dignity. Secondly, it will be a deterrence to other employees with a similar mindset.
Thanks,
Dinesh Divekar
From India, Bangalore
7881A few questions and comments on your post are as below:
How anyone can peep inside the changing room for women? Why the room is not secured? The privacy of the staff must be maintained. Far from doing it deliberately, nobody should be able to do it accidentally also.
Do you have a solid proof of someone peeping in the changing room? Is there a piece of material evidence? What happened when someone discovered it? Have you obtained a statement from the employee who did this misconduct?
You have written, "employee who watched a female locker room during a girl changing her cloth". Was the employee a man or a woman?
Whether man or woman, whoever peeped in the changing room, has breached the privacy. Why do you wish to let off an employee with just a warning letter? Suppose the woman employee comes to know that she was watched secretly while changing her clothes, how ashamed will she be? Have you thought of this?
Watching someone while changing clothes is nothing but perversity. An organisation should not have any place for employees who wish to satisfy their prurience. Therefore, if you have sufficient proof of the misconduct, then conduct a domestic enquiry and sack the employee. It will send a message to all the women employees that your organisation does not compromise their dignity. Secondly, it will be a deterrence to other employees with a similar mindset.
Thanks,
Dinesh Divekar
From India, Bangalore
Dear CiteHR Member Shri Harish,.
Although our senior Member Shri Dinesh Divekar has provided lucid details about the probabilities of the situation and has rightly suggested to remove the wrongdoer employee after conducting a domestic enquiry. The only thing that I may be permitted to add that if there is sufficient evidence with the employer e.g. cctv footage or a complaint from the concerned girl with corroboratory evidence, then also the employee can be terminated without conducting a domestic enquiry. Such an action on the part of an employee is an invasion on the privacy of a woman which amounts to outraging of modesty and dismissal without inquiry would be justified on the basis of satisfactory evidence.
With regards
Chandra Mani Lal Srivastava
From India, New Delhi
Although our senior Member Shri Dinesh Divekar has provided lucid details about the probabilities of the situation and has rightly suggested to remove the wrongdoer employee after conducting a domestic enquiry. The only thing that I may be permitted to add that if there is sufficient evidence with the employer e.g. cctv footage or a complaint from the concerned girl with corroboratory evidence, then also the employee can be terminated without conducting a domestic enquiry. Such an action on the part of an employee is an invasion on the privacy of a woman which amounts to outraging of modesty and dismissal without inquiry would be justified on the basis of satisfactory evidence.
With regards
Chandra Mani Lal Srivastava
From India, New Delhi
If such an incident happened, you should be reporting the matter to the POSH committee and calling for disciplinary hearings into the matter and let the domestic enquiry officer decide the quantum of punishment.
If you let the matter go with just a warning, and in case any of the victims decide to take the matter to DCC or to the police, the management will also be in serious problem.
From India, Mumbai
If you let the matter go with just a warning, and in case any of the victims decide to take the matter to DCC or to the police, the management will also be in serious problem.
From India, Mumbai
Dear All,
With greetings of the day to senior Mentors, Moderators and professional colleagues, I may with due respect be permitted to delineate that the narrative posted by the querist Shri Harish does not fall within the definition of sexual harassment as enshrined in Section 2(n) of Sexual Harassment of Women at Workplace (PPR) Act 2013, and as such an Internal Committee (POSH Committee) has no role in it. Secondly the Act does not empower an IC (Internal Committee) to decide the quantum of punishment. It is only the disciplinary authority / employer who is competent to decide the quantum of penalty and award punishment accordingly.
2. It may be relevant to mention the narrative of the incident falls in the category of voyeurism under Section 354C of IPC 1860 which is a punishable offence. A police report can be filed either by the employer or by the victim herself.
3. I may be further given the liberty of stating that voyeurism is Voyeuristic psychological disorder which needs particular attention by the Society. Social media also needs to be restricted on this aspect.
With due regards,
Chandramani Lal Srivastava
Mater Consultant
9315516083
New Delhi/18.07.2022/9:06am
From India, New Delhi
With greetings of the day to senior Mentors, Moderators and professional colleagues, I may with due respect be permitted to delineate that the narrative posted by the querist Shri Harish does not fall within the definition of sexual harassment as enshrined in Section 2(n) of Sexual Harassment of Women at Workplace (PPR) Act 2013, and as such an Internal Committee (POSH Committee) has no role in it. Secondly the Act does not empower an IC (Internal Committee) to decide the quantum of punishment. It is only the disciplinary authority / employer who is competent to decide the quantum of penalty and award punishment accordingly.
2. It may be relevant to mention the narrative of the incident falls in the category of voyeurism under Section 354C of IPC 1860 which is a punishable offence. A police report can be filed either by the employer or by the victim herself.
3. I may be further given the liberty of stating that voyeurism is Voyeuristic psychological disorder which needs particular attention by the Society. Social media also needs to be restricted on this aspect.
With due regards,
Chandramani Lal Srivastava
Mater Consultant
9315516083
New Delhi/18.07.2022/9:06am
From India, New Delhi
Dear Mr Harish, How did you come to conclusion that alleged Misconduct warrants issue of Warning Letter.Are you the disciplinary Authority?
From India, New Delhi
From India, New Delhi
Mr. Srivastava
I checked the definition of Sexual harassment in the act, which is provided below.
n) “sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:—
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
The last item, unwelcome physical, verbal or non-verbal conduct, I think will cover the case specified in the Original Post. Therefore, it can definitely be taken up by the ICC. In alternate, the management can file a FIR on their own initiative. If they don't take any action or just give a weak response like a warning letter, they will be in problem later.
The other reason for this to be taken up by ICC is that most female employees are uncomfortable with the police involvement due to their desire for privacy and social norms.
About the punishment, I have seen ICC recommending the punishment and the quantum of the same. The management asks for it, so that they are not accused of being partial or of favouritism. It helps them defend their action in a court.
Please explain why you think the ICC can not recommend the punishment
From India, Mumbai
I checked the definition of Sexual harassment in the act, which is provided below.
n) “sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:—
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
The last item, unwelcome physical, verbal or non-verbal conduct, I think will cover the case specified in the Original Post. Therefore, it can definitely be taken up by the ICC. In alternate, the management can file a FIR on their own initiative. If they don't take any action or just give a weak response like a warning letter, they will be in problem later.
The other reason for this to be taken up by ICC is that most female employees are uncomfortable with the police involvement due to their desire for privacy and social norms.
About the punishment, I have seen ICC recommending the punishment and the quantum of the same. The management asks for it, so that they are not accused of being partial or of favouritism. It helps them defend their action in a court.
Please explain why you think the ICC can not recommend the punishment
From India, Mumbai
Dear Mr Saswata Banerjee,
With due regards to your acumen, firstly I shall appreciate your efforts to glance over the definition given in Section 2(n) of SHWW (PPR) Act 2013, however I shall respectfully clarify that provisions of the Act are not matter of opinion but of legal construction and jurisdiction conferred by the Act on IC and the Employer. I shall dwell upon your points serially.
2. Your opinion is not sustainable because the narrated incident does not fall in category of Section 2(n)(v) viz "any other unwelcome physical, verbal or non-verbal conduct of sexual nature" for the reason that in the reported case there was no physical or verbal conduct. The 'non verbal' conduct should be of sexual nature i.e. it can be by way of gesture or showing of obscene material before the female person. In this case there was neither any gesture nor any obscene material shown to the female before her eyes. Hence the narrated incident is definitely not covered under Section 2(n)(v) and I would reiterate that an IC has no role in it. As already stated the matter comes under scope of Section 354C of IPC 1860 under which a report can be made either by the Employer or by the female victim.
2. With regard to quantum of punishment, the Act does not empower the IC to recommend quantum of punishment. Your opinion or example of past cases is against the statutory provision, and it will be totally illegal for an IC to recommend quantum of punishment. If it does so, it is assailable in court of law.
If you wish to have any other clarification, you are cordially invited to contact me at my mobile number or email. I shall be happy to provide the correct legal position in this regard.
With kind regards,
Chandramani Lal Srivastava
Master Consultant - Subject Expert on POSH
Mobile - 9315516083
New Delhi/20.07.2022/10:07 pm
From India, New Delhi
With due regards to your acumen, firstly I shall appreciate your efforts to glance over the definition given in Section 2(n) of SHWW (PPR) Act 2013, however I shall respectfully clarify that provisions of the Act are not matter of opinion but of legal construction and jurisdiction conferred by the Act on IC and the Employer. I shall dwell upon your points serially.
2. Your opinion is not sustainable because the narrated incident does not fall in category of Section 2(n)(v) viz "any other unwelcome physical, verbal or non-verbal conduct of sexual nature" for the reason that in the reported case there was no physical or verbal conduct. The 'non verbal' conduct should be of sexual nature i.e. it can be by way of gesture or showing of obscene material before the female person. In this case there was neither any gesture nor any obscene material shown to the female before her eyes. Hence the narrated incident is definitely not covered under Section 2(n)(v) and I would reiterate that an IC has no role in it. As already stated the matter comes under scope of Section 354C of IPC 1860 under which a report can be made either by the Employer or by the female victim.
2. With regard to quantum of punishment, the Act does not empower the IC to recommend quantum of punishment. Your opinion or example of past cases is against the statutory provision, and it will be totally illegal for an IC to recommend quantum of punishment. If it does so, it is assailable in court of law.
If you wish to have any other clarification, you are cordially invited to contact me at my mobile number or email. I shall be happy to provide the correct legal position in this regard.
With kind regards,
Chandramani Lal Srivastava
Master Consultant - Subject Expert on POSH
Mobile - 9315516083
New Delhi/20.07.2022/10:07 pm
From India, New Delhi
With due respect to all who opined, I want to bring to your notice that various High Courts have delivered judgements that even staring at a woman is sexual harassment. Peeping is greater than that.
Dineshji, it is ok to say that employer should plug in all ways so that noone gets a chance to do so. Sir, it is not possible. Perpetrators find new ways. Just because in a crowd a girl is struggling to go out, no one gets a right to touch her, until the girl calls for help. Similarly, just because there is a place to peep in does not mean one gets a right to peep in. It is not gentlemanly. He must be punished. Warning or more depends on so many other considerations.
One cardinal principle is : "It is not what the perpetrator intends, it is what the woman feels that is important." Such situations should be handled skillfully.
Vibhakar Ramtirthkar.
From India, Pune
Dineshji, it is ok to say that employer should plug in all ways so that noone gets a chance to do so. Sir, it is not possible. Perpetrators find new ways. Just because in a crowd a girl is struggling to go out, no one gets a right to touch her, until the girl calls for help. Similarly, just because there is a place to peep in does not mean one gets a right to peep in. It is not gentlemanly. He must be punished. Warning or more depends on so many other considerations.
One cardinal principle is : "It is not what the perpetrator intends, it is what the woman feels that is important." Such situations should be handled skillfully.
Vibhakar Ramtirthkar.
From India, Pune
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WARNING LETTER FOR ABSENCE.doc
Sexual Harassment.pdf