Hi All,
Would like to add into my handbook, some termination clause. Pls help me with few laws that allows an organisation to terminate their staff on those grounds.
hoping for a positive reply.
Regards
Lalita
From India, Mumbai
1Would like to add into my handbook, some termination clause. Pls help me with few laws that allows an organisation to terminate their staff on those grounds.
hoping for a positive reply.
Regards
Lalita
From India, Mumbai
Dear
You must see Sec 25F of the Industrial Disputes Act and your local Sops & Establishments Act . The termination provision should match that.
With Regards
Advocates & Notaries & Legal Consultants [HR]
E-mail : rajanassociates@eth,net,
-9025792684-9025792634
From India, Bangalore
You must see Sec 25F of the Industrial Disputes Act and your local Sops & Establishments Act . The termination provision should match that.
With Regards
Advocates & Notaries & Legal Consultants [HR]
E-mail : rajanassociates@eth,net,
-9025792684-9025792634
From India, Bangalore
Dear Lalita,
as per Industrial Disputes Act an employee can be terminated on following grounds without getting into the purview of definition of Retrenchment u/s 2(oo) :-
From India, New Delhi
as per Industrial Disputes Act an employee can be terminated on following grounds without getting into the purview of definition of Retrenchment u/s 2(oo) :-
[(oo) “retrenchment” means the termination by the employer of the
service of a workman for any reason whatsoever, otherwise than as
a punishment inflicted by way of disciplinary action, but does not
include—
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment between the
employer and the workman concerned contains a stipulation in
that behalf; or
service of a workman for any reason whatsoever, otherwise than as
a punishment inflicted by way of disciplinary action, but does not
include—
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment between the
employer and the workman concerned contains a stipulation in
that behalf; or
[(bb) termination of the service of the workman as a result of the nonrenewal of the contract of employment between the employer
and the workman concerned on its expiry or of such contract
being terminated under a stipulation in that behalf contained
therein; or]
(c) termination of the service of a workman on the ground of
continued ill-health;]
as per the above defination if an employee is terminated after proper diciplinary enquiry about any misconduct that will not attract the 25 F Provision. for that you have to include the list of misconducts in your hand book. please also do mention the procedure for diciplinary action in the hand book also and remember you cannot terminate any employee without giving him the proper opportunity of being heard.
in case of any further clarification feel free to Email me at
thanks,
Kamal Kant Tyagi
and the workman concerned on its expiry or of such contract
being terminated under a stipulation in that behalf contained
therein; or]
(c) termination of the service of a workman on the ground of
continued ill-health;]
as per the above defination if an employee is terminated after proper diciplinary enquiry about any misconduct that will not attract the 25 F Provision. for that you have to include the list of misconducts in your hand book. please also do mention the procedure for diciplinary action in the hand book also and remember you cannot terminate any employee without giving him the proper opportunity of being heard.
in case of any further clarification feel free to Email me at
thanks,
Kamal Kant Tyagi
From India, New Delhi
Dear All,
Here i have an query !
what to do if an employee is cont. taking leaves on ground of illness ? while his other team mates are informing that the employee was not interested in the job & is looking for other opportunities.
If the company can terminate that employee on ground of cont. leaves ??
Kindly suggest.
Thanks & Regards
Deepak Jain
From India, Gurgaon
Here i have an query !
what to do if an employee is cont. taking leaves on ground of illness ? while his other team mates are informing that the employee was not interested in the job & is looking for other opportunities.
If the company can terminate that employee on ground of cont. leaves ??
Kindly suggest.
Thanks & Regards
Deepak Jain
From India, Gurgaon
Dear Lalitha Chandrasekhar
Sec 2 (oo) of the Industrial Disputes Act deals with simple termination of an employee of any organisation without attaching any stigma.
In other cases, Section 25 F enunciates the procedure for retrenchment.
No employee shall be terminated without being given a reasonable opportunity and following principle of Natural Justice.
If you want to incorporate Termination clause in your Standing Orders / Hand Book /terms and conditions of employees for making applicable to your company employees, the termination provision shall be relevant to the provisions of the above Acts.
And also You have to introduce a mechanism for disciplinary proceedings, including list of such acts, which would amount to misconduct.
From India, Hyderabad
Sec 2 (oo) of the Industrial Disputes Act deals with simple termination of an employee of any organisation without attaching any stigma.
In other cases, Section 25 F enunciates the procedure for retrenchment.
No employee shall be terminated without being given a reasonable opportunity and following principle of Natural Justice.
If you want to incorporate Termination clause in your Standing Orders / Hand Book /terms and conditions of employees for making applicable to your company employees, the termination provision shall be relevant to the provisions of the above Acts.
And also You have to introduce a mechanism for disciplinary proceedings, including list of such acts, which would amount to misconduct.
From India, Hyderabad
Dear Sir/ Madam
I Need suggestion!
If am employer want to terminate a worker because of continuous absenteeism who joined before 15 days and remain present only for 10 days in the company.
In this case weather we need to give him notice or not? what should be pay to him as full and final payment expect wages.
Kindly Help.
Thanks and Regards
Raj Kumar
HR Executive
VRLA Manufacturing Co.
Himachal Pradesh
Mob No: 9218534004
From India, Srinagar
I Need suggestion!
If am employer want to terminate a worker because of continuous absenteeism who joined before 15 days and remain present only for 10 days in the company.
In this case weather we need to give him notice or not? what should be pay to him as full and final payment expect wages.
Kindly Help.
Thanks and Regards
Raj Kumar
HR Executive
VRLA Manufacturing Co.
Himachal Pradesh
Mob No: 9218534004
From India, Srinagar
Dear Deepak,
the ground of continuous leaves can be a ground for terminating an employee but it is not a substitute to disciplinary proceedings. you have to deal with the situation with cool head and patience
in my opinion please follow the following steps.
1. without wasting any time issue him warning letters saying that you are unauthorisingly absenting yourself and you are advised to report to duty with a proper explanition of your absence. give him a weeks time. and if he does not turns up after that.
2. issue him another show cause notice citing the relevant extract of the employee hadbook or standing order which deals with continuous absence also mention that absence of such kind hampers the smooth functioning of the organization and another opportunity is been given to him to explain his absence. if he turns up or dosn't turns up.
3. if he doesn't turns up issue him a chargesheet and post it through Reg AD and speed post and keep the receipts of the same very safe those will help you a lot. chargesheet must discribe the period of unauthorised absence and it should also say that the explanition has not been received. after that initiate the departmental enquiry.
4. if he turns up, ask him to submit the proof of his absence and get his leaves regularize with a written explanation. then issue him a chargesheet saying that his explanation was not satisfactory and chargesheet must discribe the period of unauthorised absence. after that initiate the departmental enquiry.
for any further clarification or problem feel free to call me on 9313907096.
Kamal Kant Tyagi
From India, New Delhi
the ground of continuous leaves can be a ground for terminating an employee but it is not a substitute to disciplinary proceedings. you have to deal with the situation with cool head and patience
in my opinion please follow the following steps.
1. without wasting any time issue him warning letters saying that you are unauthorisingly absenting yourself and you are advised to report to duty with a proper explanition of your absence. give him a weeks time. and if he does not turns up after that.
2. issue him another show cause notice citing the relevant extract of the employee hadbook or standing order which deals with continuous absence also mention that absence of such kind hampers the smooth functioning of the organization and another opportunity is been given to him to explain his absence. if he turns up or dosn't turns up.
3. if he doesn't turns up issue him a chargesheet and post it through Reg AD and speed post and keep the receipts of the same very safe those will help you a lot. chargesheet must discribe the period of unauthorised absence and it should also say that the explanition has not been received. after that initiate the departmental enquiry.
4. if he turns up, ask him to submit the proof of his absence and get his leaves regularize with a written explanation. then issue him a chargesheet saying that his explanation was not satisfactory and chargesheet must discribe the period of unauthorised absence. after that initiate the departmental enquiry.
for any further clarification or problem feel free to call me on 9313907096.
Kamal Kant Tyagi
From India, New Delhi
Dear All,
My view is, giving more streess on termination procedures in the appointment letter leads to a negative feelings to the candidates/new joinees. So, make a disciplinary rules / procedures seperately and give it on the first day of employement or with the appointment letter. Give the reference of disciplinary rules / procedures in the appointment letter.
An example of the same is given as under:-
Action will be taken under the disciplinary procedure in cases of:
• Misconduct, for example: lateness or unauthorized absence.
• Poor work performance, for example: not doing work diligently or to the best of the employee’s ability, not keeping proper records.
• Gross misconduct, for example: dishonesty, physical or verbal abuse of staff or volunteers, drunk at work.
2. Procedures for a) Misconduct, b) Poor Work Performance
1. If an employee fails to meet the required standard of conduct, or work performance, or is incapable of carrying out duties, the following procedure will be followed
i. Verbal Warning - A verbal warning by the Departmental Heads will be the first stage in the procedure. This will set out steps that need to be taken to improve the employee’s behavior or work performance together with any training to be provided and a date for review. A note of the warning will be retained on the employee’s personnel file.
ii. Written Warning - If an employee fails to reach the required standard after a verbal warning, within the agreed time-scale, the next stage is: a written warning from the HR Head stating that “unless conduct or work performance improves in accordance with agreed criteria within the required time scale, a final warning and termination from the job could result”. A copy of the warning will be kept in the employee’s personal file.
iii. Final Warning – If the required standard of conduct or performance is still not achieved a final written warning that “the termination from the job will result if there is no improvement within the required time scale”, will be issued by the HR Head. A copy of the warning will be kept in the employee’s personal file.
iv. Termination from the Job - Employees will be terminated from their job after due notice has been given if, despite adequate warning according to the procedure above, their conduct or work performance does not meet the required standard. The decision for Termination may only be taken by the Top Management.
2. The system of warnings is intended to ensure that the employee understands the nature of the complaint and time to improve their conduct or performance to the required standard is given.
3. Examples of misconduct which would be dealt with under this procedure are: unsatisfactory time-keeping, unsatisfactory attendance at work, unsatisfactory performance standards, misuse of Company property or premises, verbal abuse, refusal to comply with any reasonable request, unauthorized absence from work, misrepresenting Company, whilst representing Company, acting in an inappropriate manner.
3. Procedures for Gross Misconduct
1. Gross misconduct consists of conduct which is a fundamental breach of the relationship of trust and confidence between the employer and employee. Gross misconduct includes very serious breaches of discipline such as theft, fraud, falsification of records, unauthorized use of equipment, assault, fighting, grossly impaired responsibility or non performance due to alcohol or misuse of drugs, harassment or discrimination.
2. In cases of gross misconduct (if established) an employee will be terminated without warning and without payment in lieu of notice. The same is already specified in the Appointment letter of the employee.
Best regards,
From India, Mumbai
My view is, giving more streess on termination procedures in the appointment letter leads to a negative feelings to the candidates/new joinees. So, make a disciplinary rules / procedures seperately and give it on the first day of employement or with the appointment letter. Give the reference of disciplinary rules / procedures in the appointment letter.
An example of the same is given as under:-
Action will be taken under the disciplinary procedure in cases of:
• Misconduct, for example: lateness or unauthorized absence.
• Poor work performance, for example: not doing work diligently or to the best of the employee’s ability, not keeping proper records.
• Gross misconduct, for example: dishonesty, physical or verbal abuse of staff or volunteers, drunk at work.
2. Procedures for a) Misconduct, b) Poor Work Performance
1. If an employee fails to meet the required standard of conduct, or work performance, or is incapable of carrying out duties, the following procedure will be followed
i. Verbal Warning - A verbal warning by the Departmental Heads will be the first stage in the procedure. This will set out steps that need to be taken to improve the employee’s behavior or work performance together with any training to be provided and a date for review. A note of the warning will be retained on the employee’s personnel file.
ii. Written Warning - If an employee fails to reach the required standard after a verbal warning, within the agreed time-scale, the next stage is: a written warning from the HR Head stating that “unless conduct or work performance improves in accordance with agreed criteria within the required time scale, a final warning and termination from the job could result”. A copy of the warning will be kept in the employee’s personal file.
iii. Final Warning – If the required standard of conduct or performance is still not achieved a final written warning that “the termination from the job will result if there is no improvement within the required time scale”, will be issued by the HR Head. A copy of the warning will be kept in the employee’s personal file.
iv. Termination from the Job - Employees will be terminated from their job after due notice has been given if, despite adequate warning according to the procedure above, their conduct or work performance does not meet the required standard. The decision for Termination may only be taken by the Top Management.
2. The system of warnings is intended to ensure that the employee understands the nature of the complaint and time to improve their conduct or performance to the required standard is given.
3. Examples of misconduct which would be dealt with under this procedure are: unsatisfactory time-keeping, unsatisfactory attendance at work, unsatisfactory performance standards, misuse of Company property or premises, verbal abuse, refusal to comply with any reasonable request, unauthorized absence from work, misrepresenting Company, whilst representing Company, acting in an inappropriate manner.
3. Procedures for Gross Misconduct
1. Gross misconduct consists of conduct which is a fundamental breach of the relationship of trust and confidence between the employer and employee. Gross misconduct includes very serious breaches of discipline such as theft, fraud, falsification of records, unauthorized use of equipment, assault, fighting, grossly impaired responsibility or non performance due to alcohol or misuse of drugs, harassment or discrimination.
2. In cases of gross misconduct (if established) an employee will be terminated without warning and without payment in lieu of notice. The same is already specified in the Appointment letter of the employee.
Best regards,
From India, Mumbai
Dear Pradeep,
your suggestions are good and welcome upto the Gross Misconduct Part but in my opnion EVEN IN CASE OF GROSS MISCONDUCT YOU CANNOT TERMINATE AN EMPLOYEE STRAIGHT AWAY. first thing a judge would ask in a Labour Court that have you given any chance to Employee to explain his position. there are a number of judgements of Supreme Court which says if you are terminating an employee in case of theft, willful disobedience or any such gross misconduct case.
Even Supreme Court says that if you terminate any temporary employee due to any misconduct you have to give him a chance to explain the situation. so never terminate any employee without enquiry. even if he says that he has committed any misconduct of grave nature. do not take it lightly and jump to the conclusion of terminating him straight away. even in such case hold an enquiry and record his confession in proceedings, issue him show cause as to why his services should not be terminated and it is only then, if he submits any explanition or not, issue him a termination letter.
thanks
Kamal Kant Tyagi
From India, New Delhi
your suggestions are good and welcome upto the Gross Misconduct Part but in my opnion EVEN IN CASE OF GROSS MISCONDUCT YOU CANNOT TERMINATE AN EMPLOYEE STRAIGHT AWAY. first thing a judge would ask in a Labour Court that have you given any chance to Employee to explain his position. there are a number of judgements of Supreme Court which says if you are terminating an employee in case of theft, willful disobedience or any such gross misconduct case.
Even Supreme Court says that if you terminate any temporary employee due to any misconduct you have to give him a chance to explain the situation. so never terminate any employee without enquiry. even if he says that he has committed any misconduct of grave nature. do not take it lightly and jump to the conclusion of terminating him straight away. even in such case hold an enquiry and record his confession in proceedings, issue him show cause as to why his services should not be terminated and it is only then, if he submits any explanition or not, issue him a termination letter.
thanks
Kamal Kant Tyagi
From India, New Delhi
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