Can any termination post domestic enquiry due to unauthorised absentism on account of ill health may be referred to labour court by the employee .... please share case study and your experience if any.
From India, Bangalore
From India, Bangalore
Hello Abhisekh Rudra & Avinash Kanoray,
Why not discuss the case & the suggestions/citations emanating from Avinash Kanoray in this Forum?
After all that's what CiteHR is meant for--sharing for EVERYONE'S benefit.
There's every possibility that there could be other members too who could be facing similar problems/situations.
Rgds,
TS
From India, Hyderabad
1637Why not discuss the case & the suggestions/citations emanating from Avinash Kanoray in this Forum?
After all that's what CiteHR is meant for--sharing for EVERYONE'S benefit.
There's every possibility that there could be other members too who could be facing similar problems/situations.
Rgds,
TS
From India, Hyderabad
it is not comrehendible as to how an employee absenting on grounds of illness can also be considered as committing a misconduct. B.Saikumar HR & labour Law advisor Mumbai
From India, Mumbai
From India, Mumbai
Firstly if the employee is covered under the definition of workmen under ID Act 1947 then he has to raise the dispute before the conciliation officer and after failure of conciliation the government can refer it to Industrial Tribunal/Labour court for adjudication. If government did not refer, then employee can directly raise a dispute before the Industrial tribunal.
As far as your case is concerned the answer is yes if employee is workman. He may raise the dispute on the following grounds:
Domestic Inquiry is vitiated as inquiry officer is biased or charge sheet not serve/inquiry report not served or you have enged legally trained persona as presenting officer or punishment is grossly disproportional, Principles of Natural Justices is not followed,
From United States
As far as your case is concerned the answer is yes if employee is workman. He may raise the dispute on the following grounds:
Domestic Inquiry is vitiated as inquiry officer is biased or charge sheet not serve/inquiry report not served or you have enged legally trained persona as presenting officer or punishment is grossly disproportional, Principles of Natural Justices is not followed,
From United States
Dear Abhishek,
First and foremost please understand that it is not the employee who can or will refer the dispute to the Labour Court for adjudication.
Yes, an employee whose services have been terminated on account of any kind of misconduct, post Domestic Enquiry can challenge his termination.
The first step open for the employee is the Conciliation proceedings. It is the Conciliation Officer who may submit a failure report and upon which the appropriate govt. may refer the matter to the Labour Court for adjudication failing which the employee has the right to directly approach the Labour Court to challenge his termination.
Best Wishes,
Vasant Nair
From India, Mumbai
First and foremost please understand that it is not the employee who can or will refer the dispute to the Labour Court for adjudication.
Yes, an employee whose services have been terminated on account of any kind of misconduct, post Domestic Enquiry can challenge his termination.
The first step open for the employee is the Conciliation proceedings. It is the Conciliation Officer who may submit a failure report and upon which the appropriate govt. may refer the matter to the Labour Court for adjudication failing which the employee has the right to directly approach the Labour Court to challenge his termination.
Best Wishes,
Vasant Nair
From India, Mumbai
Dear Abhishek,
There seems to be a technical problem in handling this case. The general clause pertaining to unauthorised absence from duty also stipulates that he will not be deemed to be absenting unauthorisedly if he "proves to the satisfaction of the management the real cause for his absence". For example if an employee unauthorisedly absents from duty for a period of say three weeks and on his return thereafter submits a medical certificate pertaining to his serious sickness and also explains that communications sent by the management did not reach him as his residence was in remote area where either the proper communication does not reach or takes too much time and that his attendants were not literate enough to have made an application to you for his sickness. Once satisfied, the termination of employment has to be reviewed by the management and in the event of refusal by the management the employee is well within his right to take up the case for conciliation etc.
In any case, the service of an employee cannot be terminated for absenting from duty (on medical grounds) considering the above as misconduct unless proved otherwise.
Regards
S.K.Johri
From India, Delhi
There seems to be a technical problem in handling this case. The general clause pertaining to unauthorised absence from duty also stipulates that he will not be deemed to be absenting unauthorisedly if he "proves to the satisfaction of the management the real cause for his absence". For example if an employee unauthorisedly absents from duty for a period of say three weeks and on his return thereafter submits a medical certificate pertaining to his serious sickness and also explains that communications sent by the management did not reach him as his residence was in remote area where either the proper communication does not reach or takes too much time and that his attendants were not literate enough to have made an application to you for his sickness. Once satisfied, the termination of employment has to be reviewed by the management and in the event of refusal by the management the employee is well within his right to take up the case for conciliation etc.
In any case, the service of an employee cannot be terminated for absenting from duty (on medical grounds) considering the above as misconduct unless proved otherwise.
Regards
S.K.Johri
From India, Delhi
Dear Abhishek
Greetings for the day. Let us understand the meaning and interpretation of word 'Unauthorised absence'. It means days of absence without any intimation, any leave application or prior sanction of leave, or overstaying of sanctioned leave or habitual absence. In your case the termination of services is after conducting domestic enquiry and that too on the ground of sickness. The case will have to be examined on merits, documents and evidence on record. If the workman has produced the medical certificates from ESI Hospital or private medical practitioner all the time in advance then this will not be treated as unauthorised absence. Again the termination during Medical treatment may be held as illegal termination and unfair practice on the part of employer. Under the circumstances the worker can challenge the termination order by raising dispute before Asstt Commissioner of Labour under Conciliation. The Asst Commr Of Labour may refer the dispute to Labour Court if Conciliation proceedings fails. However all will depend on merit of the case. Hope this will satisfy you.
Avinash Kanoray
From India, Pune
Greetings for the day. Let us understand the meaning and interpretation of word 'Unauthorised absence'. It means days of absence without any intimation, any leave application or prior sanction of leave, or overstaying of sanctioned leave or habitual absence. In your case the termination of services is after conducting domestic enquiry and that too on the ground of sickness. The case will have to be examined on merits, documents and evidence on record. If the workman has produced the medical certificates from ESI Hospital or private medical practitioner all the time in advance then this will not be treated as unauthorised absence. Again the termination during Medical treatment may be held as illegal termination and unfair practice on the part of employer. Under the circumstances the worker can challenge the termination order by raising dispute before Asstt Commissioner of Labour under Conciliation. The Asst Commr Of Labour may refer the dispute to Labour Court if Conciliation proceedings fails. However all will depend on merit of the case. Hope this will satisfy you.
Avinash Kanoray
From India, Pune
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