Hi Friends,
Can somebody help with the legal complications involved in de- promoting an employee.
One of our employee has turned out to be a wrong hire. His contribution has been nil in the past few months he has been with us and has major attitude problem.
The management has realised the mistake and has asked the person to leave ( By paying the notice pay) But the person has refused to resign.
Under such circumstances we have dediced to De- promote him as he is ineffective in his capacity. Can someone give me an insight into the legalities of De-Promotion.
Wot other course can we take against the employee ?
Regards,
Rekha
From India, Bangalore
3Can somebody help with the legal complications involved in de- promoting an employee.
One of our employee has turned out to be a wrong hire. His contribution has been nil in the past few months he has been with us and has major attitude problem.
The management has realised the mistake and has asked the person to leave ( By paying the notice pay) But the person has refused to resign.
Under such circumstances we have dediced to De- promote him as he is ineffective in his capacity. Can someone give me an insight into the legalities of De-Promotion.
Wot other course can we take against the employee ?
Regards,
Rekha
From India, Bangalore
Dear Rekha,
Both termination and demotion are form of punishment can be awarded only after a proper disciplinary proceeding. Starting from:
Show Cause: This must be issued on basis of correspondences, opportunities given to the employee by the organization and his/her replies. The coressondences will be admissible as evidence in the Court of Enquiry constituted for this case by the Company.
Chargesheet: On receipt of the reply, if found unsatisfactory, a chargesheet should be issued.
Court of Enquiry: A Court of Enquiry(either single or a board) must be constituted to look into the charges. The accused employee must be given the full opportunity to present his case.
Disciplinary Authority: The Enquiry Findings to be submitted to the Disciplinary Authority who will go through the proceedings, look into the evidences and either hand out a punishment or will dismiss the case. Either party has the right to appeal it's decision within the allotted time.
Appellate Authority: On receiving the appeal the Appellate Authority goes through the entire papers, evidences and also calls the aggrieved party or both if required and gives them a hearing. After that the Appellate Authority gives it's verdict which is final and binding.
In case if the aggrieved party is still not satisfied then he/she can approach the Labour Courts, Industrial Tribunals or even the High Courts.
One thing must be noted here. If the whole Disciplinary Proceedings is free and fair, transparent, bona fide and the principles of Natural Justice has been followed, a Court of Law usually doesn't have the power to overturn or dismiss the findings of the Disciplinary Proceedings.
So, please follow the above process and I tell you there will be no problems. From now on start written correspondence with the employee to gather evidence if you haven't done that already.
Regards,
SC
From India, Thane
Both termination and demotion are form of punishment can be awarded only after a proper disciplinary proceeding. Starting from:
Show Cause: This must be issued on basis of correspondences, opportunities given to the employee by the organization and his/her replies. The coressondences will be admissible as evidence in the Court of Enquiry constituted for this case by the Company.
Chargesheet: On receipt of the reply, if found unsatisfactory, a chargesheet should be issued.
Court of Enquiry: A Court of Enquiry(either single or a board) must be constituted to look into the charges. The accused employee must be given the full opportunity to present his case.
Disciplinary Authority: The Enquiry Findings to be submitted to the Disciplinary Authority who will go through the proceedings, look into the evidences and either hand out a punishment or will dismiss the case. Either party has the right to appeal it's decision within the allotted time.
Appellate Authority: On receiving the appeal the Appellate Authority goes through the entire papers, evidences and also calls the aggrieved party or both if required and gives them a hearing. After that the Appellate Authority gives it's verdict which is final and binding.
In case if the aggrieved party is still not satisfied then he/she can approach the Labour Courts, Industrial Tribunals or even the High Courts.
One thing must be noted here. If the whole Disciplinary Proceedings is free and fair, transparent, bona fide and the principles of Natural Justice has been followed, a Court of Law usually doesn't have the power to overturn or dismiss the findings of the Disciplinary Proceedings.
So, please follow the above process and I tell you there will be no problems. From now on start written correspondence with the employee to gather evidence if you haven't done that already.
Regards,
SC
From India, Thane
Rekha...
Two cents from me...
What is the position/level of the concerned employee in the organization?
Had you checked his Background without offering him the position?
Was there clear KRA's, before you started sourcing people?
If he is a senior and answers to other two questions are negative...then it is not just fault but a blunder from management. Over and above that you asked him to resign!!!
There are two things you can do apart from taking the disciplinary action as explained by other contributor.
1) Don't confirm him after probation period...he will go on his own.
2) Give him...some assignments...as you said that he don't work...sure he will not work again and you can discuss his "performance" and ask him to leave.
Demoting...is not advisable as it involve lots of legal complications.
I hope this will help.
Regards
Sanjeev Sharma
(E-mail:
; 
)
(Blog: http://sanjeevhimachali.blogspot.com/
From India, Mumbai
Two cents from me...
What is the position/level of the concerned employee in the organization?
Had you checked his Background without offering him the position?
Was there clear KRA's, before you started sourcing people?
If he is a senior and answers to other two questions are negative...then it is not just fault but a blunder from management. Over and above that you asked him to resign!!!
There are two things you can do apart from taking the disciplinary action as explained by other contributor.
1) Don't confirm him after probation period...he will go on his own.
2) Give him...some assignments...as you said that he don't work...sure he will not work again and you can discuss his "performance" and ask him to leave.
Demoting...is not advisable as it involve lots of legal complications.
I hope this will help.
Regards
Sanjeev Sharma
(E-mail:
(Blog: http://sanjeevhimachali.blogspot.com/
From India, Mumbai
Swastik sir,
I am a new member to this site.
I received the domestic enquiry format of yours from my friend.
can you please clarify whether the employeehas not been served any notice/charge sheet,can we conduct ex-party enquiry in his absence and retrench him
pls give your opinion
thanks and regards
rashmi
From India, Bangalore
I am a new member to this site.
I received the domestic enquiry format of yours from my friend.
can you please clarify whether the employeehas not been served any notice/charge sheet,can we conduct ex-party enquiry in his absence and retrench him
pls give your opinion
thanks and regards
rashmi
From India, Bangalore
Dear Rashmi,
No you cannot do it. How can you proceed exparte just like that?? Unless you serve him a notice how are you giving him an opportunity to explain his case???? You are violating Principals of Natural Justice.
One more thing you must mention the same in the Chargesheet, that if he fails to appear it would proceed exparte. If the line is not inserted you cannot proceed exparte.
A chargesheet looks somewhat like this: (Copied from one of my previous post)
As for chargesheet it goes like this:
We are in receipt of your written explanation dated --- in reply to the show cause letter issued to your under letter ref no.-- dated--- which has been found unsatisfactory.
Your are therefore charged under clause no--- , (state the relevant portion of the clause).
In that it has been reported ----(give the Full incident)
In accordance with the provisions of clause of -- of Standing Orders an Enquiry Committee will meet to investigate above charges levelled against you in the office of the -- at --- hours on--- and you are directed to be present thereat to enable you to conduct your defense properly and adequately we send herewith copy of the Standing Orders and copy of the complaints in this connections on which the Company may rely at the time of Enquiry.
At the Enquiry you will be given full opportunity to conduct your defense by examining your witnessess and cross examining the Company's witnesses. Should you fail to present yourself at the enquiry it will proceed exparte.
You can replace the words Standing Orders with Rules of the Company if your organisation is not covered by Industrial Employment Standing Orders Act, 1946
Regards,
SC
From India, Thane
No you cannot do it. How can you proceed exparte just like that?? Unless you serve him a notice how are you giving him an opportunity to explain his case???? You are violating Principals of Natural Justice.
One more thing you must mention the same in the Chargesheet, that if he fails to appear it would proceed exparte. If the line is not inserted you cannot proceed exparte.
A chargesheet looks somewhat like this: (Copied from one of my previous post)
As for chargesheet it goes like this:
We are in receipt of your written explanation dated --- in reply to the show cause letter issued to your under letter ref no.-- dated--- which has been found unsatisfactory.
Your are therefore charged under clause no--- , (state the relevant portion of the clause).
In that it has been reported ----(give the Full incident)
In accordance with the provisions of clause of -- of Standing Orders an Enquiry Committee will meet to investigate above charges levelled against you in the office of the -- at --- hours on--- and you are directed to be present thereat to enable you to conduct your defense properly and adequately we send herewith copy of the Standing Orders and copy of the complaints in this connections on which the Company may rely at the time of Enquiry.
At the Enquiry you will be given full opportunity to conduct your defense by examining your witnessess and cross examining the Company's witnesses. Should you fail to present yourself at the enquiry it will proceed exparte.
You can replace the words Standing Orders with Rules of the Company if your organisation is not covered by Industrial Employment Standing Orders Act, 1946
Regards,
SC
From India, Thane
Respected swastik sir
thank you for your reply.
in our company we have done one small thing which may be a mistake.
As the concerned employee had gone out of station and he had just written a letter with his present address, we sent formal notices to his old address and got it back as "Party left"'
then we published in local newspaper and finshed enquiry in absentia and dismissed him in last week of february 2007.
Now he has come back and is again sending registered posts requesting to permit for duty.
the union fellows have started thinking to go to legal.
My boss is worried about tis.
can you pls clarify.
we have already deposited his amount at Labour commisioners office in june 2007
thanks and regards
rashmi
From India, Bangalore
thank you for your reply.
in our company we have done one small thing which may be a mistake.
As the concerned employee had gone out of station and he had just written a letter with his present address, we sent formal notices to his old address and got it back as "Party left"'
then we published in local newspaper and finshed enquiry in absentia and dismissed him in last week of february 2007.
Now he has come back and is again sending registered posts requesting to permit for duty.
the union fellows have started thinking to go to legal.
My boss is worried about tis.
can you pls clarify.
we have already deposited his amount at Labour commisioners office in june 2007
thanks and regards
rashmi
From India, Bangalore
Dear Rashmi,
As per rule you are suppose to sent the Notice by Registered Post to all Addresses given by the Employee at the time of employment (This is the reason why you will always find two addresses asked for Present and Permanent in all Government and other important places where you are required to give your personal details). If you have failed to do so then you must allow the employee to be heard.
But, if the employee has given you only one address during time of employment then it is the duty of the employee concern to notify the employer about the change of his address.
So, if your case fall in the second category then what you have done is ok.
Regards,
SC
From India, Thane
As per rule you are suppose to sent the Notice by Registered Post to all Addresses given by the Employee at the time of employment (This is the reason why you will always find two addresses asked for Present and Permanent in all Government and other important places where you are required to give your personal details). If you have failed to do so then you must allow the employee to be heard.
But, if the employee has given you only one address during time of employment then it is the duty of the employee concern to notify the employer about the change of his address.
So, if your case fall in the second category then what you have done is ok.
Regards,
SC
From India, Thane
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