Sir,
I am working as Sr. Manager HR in an Education solution provider company that trades Audio Video equipment from the USA and Taiwan, using them in projects for educational solutions in schools and colleges.
The company is only 2 and a half years old and in a developing phase with a slow growth rate, falling under the Delhi Shop and Establishment Act.
The company appointed an operations manager in October 2012, who is a woman. Upon her joining, it was explicitly asked if she had any family expansion plans, as the organization is new and would be affected if she discontinues her work in a short duration, which she denied at that time. In October, she worked for only 7 days and formally joined in November 2012.
In January 2013, she became pregnant and, due to health issues (being a bronchitis patient), she was unable to focus on her work and deliver the desired results for which she was appointed. Additionally, in March, a crucial month for target completion, she took 9 days of leave and after returning, took a further 2 days off. Management was dissatisfied with her negligent attitude towards work. When her performance was discussed with her in person, she reacted unprofessionally and had 7 family members come, threatening our Director to let her continue working. They also tried to falsely blame the management, stating that her pregnancy was the reason for the attempt to terminate her. However, she had not formally informed about her pregnancy until March 2013, when it came to light after she fainted in the office premises 2-3 times in the last week of March.
We provided her with Key Result Areas (KRA) outlining specific tasks to be done, which she accepted but did not attempt to achieve. Additionally, she would confront her seniors whenever work was demanded. Ultimately, Management decided to give her notice on 31st May. She requested her salary and notice pay in cash, which we did not accept. Eventually, she received the cheque for the same on 5th June 2013. After the cheque cleared, her husband came to claim maternity benefits and threatened to go to the Labour Commissioner. Subsequently, they lodged a complaint with the Deputy Labour Commissioner's office, citing mental harassment at the workplace and demanding Maternity Benefits and job restoration. We received the notice and are now preparing our response.
According to the Maternity Benefit Act, a female employee can claim maternity benefits from her employer if she has worked for a minimum of 80 days. My question is whether the 80-day period includes the time when she was already pregnant or before the pregnancy began. Moreover, is it illegal to terminate the services of a female employee if she is not performing solely because she is pregnant? Pregnancy should not be used as a shield to protect one's job if performance is lacking. What are our rights in fighting this case?
Please advise me. I am also a woman, and I believe that motherhood should not be exploited when we are discussing gender equality; women are not inferior to men in any aspect. Furthermore, after accepting the notice period salary, how can an employee claim job restoration and other benefits?
Please guide me on the correct approach to handling this case and clarify any doubts regarding the implementation of the Maternity Act.
From India, Gurgaon
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I am working as Sr. Manager HR in an Education solution provider company that trades Audio Video equipment from the USA and Taiwan, using them in projects for educational solutions in schools and colleges.
The company is only 2 and a half years old and in a developing phase with a slow growth rate, falling under the Delhi Shop and Establishment Act.
The company appointed an operations manager in October 2012, who is a woman. Upon her joining, it was explicitly asked if she had any family expansion plans, as the organization is new and would be affected if she discontinues her work in a short duration, which she denied at that time. In October, she worked for only 7 days and formally joined in November 2012.
In January 2013, she became pregnant and, due to health issues (being a bronchitis patient), she was unable to focus on her work and deliver the desired results for which she was appointed. Additionally, in March, a crucial month for target completion, she took 9 days of leave and after returning, took a further 2 days off. Management was dissatisfied with her negligent attitude towards work. When her performance was discussed with her in person, she reacted unprofessionally and had 7 family members come, threatening our Director to let her continue working. They also tried to falsely blame the management, stating that her pregnancy was the reason for the attempt to terminate her. However, she had not formally informed about her pregnancy until March 2013, when it came to light after she fainted in the office premises 2-3 times in the last week of March.
We provided her with Key Result Areas (KRA) outlining specific tasks to be done, which she accepted but did not attempt to achieve. Additionally, she would confront her seniors whenever work was demanded. Ultimately, Management decided to give her notice on 31st May. She requested her salary and notice pay in cash, which we did not accept. Eventually, she received the cheque for the same on 5th June 2013. After the cheque cleared, her husband came to claim maternity benefits and threatened to go to the Labour Commissioner. Subsequently, they lodged a complaint with the Deputy Labour Commissioner's office, citing mental harassment at the workplace and demanding Maternity Benefits and job restoration. We received the notice and are now preparing our response.
According to the Maternity Benefit Act, a female employee can claim maternity benefits from her employer if she has worked for a minimum of 80 days. My question is whether the 80-day period includes the time when she was already pregnant or before the pregnancy began. Moreover, is it illegal to terminate the services of a female employee if she is not performing solely because she is pregnant? Pregnancy should not be used as a shield to protect one's job if performance is lacking. What are our rights in fighting this case?
Please advise me. I am also a woman, and I believe that motherhood should not be exploited when we are discussing gender equality; women are not inferior to men in any aspect. Furthermore, after accepting the notice period salary, how can an employee claim job restoration and other benefits?
Please guide me on the correct approach to handling this case and clarify any doubts regarding the implementation of the Maternity Act.
From India, Gurgaon
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Hello Prabha,
Like the saying goes: "Every policy/rule/law has the inherent scope for misuse." Whether one likes it or not or agrees or not, that's reality. All one (or in this case your company) can do is to prepare to safeguard his/her/its position in any worst-case scenario.
Coming to your present predicament, please confirm how many days she actually worked (based on company attendance records) before she formally informed the company about her pregnancy.
In this situation, her attendance records would become very crucial to prove that she was irregular.
While it's not really possible or practical (it's illegal also, I guess, though not sure of this aspect) to enforce any condition about not expanding the family as a part of the interview process, please clarify if there is any record of this being discussed with her.
Looking back, I think your company did the right thing in not giving her NP salary in cash—it looks like they (wife and husband) had planned to claim that she didn't get any salary.
Your plan of action should be based not on her performance after she formally informed the company about her pregnancy—it should be based on her performance before that date. Else, despite whatever the company says or does, the Labour Department is bound to interpret it as what she is claiming is right. Hope you get the point.
Anyway, I suggest involving your company advocate for sure.
I suggest waiting for the legal members of CiteHR also to respond—they would be able to guide you better on how to handle the Labour Department Notice.
All the best.
Regards,
TS
From India, Hyderabad
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1700Like the saying goes: "Every policy/rule/law has the inherent scope for misuse." Whether one likes it or not or agrees or not, that's reality. All one (or in this case your company) can do is to prepare to safeguard his/her/its position in any worst-case scenario.
Coming to your present predicament, please confirm how many days she actually worked (based on company attendance records) before she formally informed the company about her pregnancy.
In this situation, her attendance records would become very crucial to prove that she was irregular.
While it's not really possible or practical (it's illegal also, I guess, though not sure of this aspect) to enforce any condition about not expanding the family as a part of the interview process, please clarify if there is any record of this being discussed with her.
Looking back, I think your company did the right thing in not giving her NP salary in cash—it looks like they (wife and husband) had planned to claim that she didn't get any salary.
Your plan of action should be based not on her performance after she formally informed the company about her pregnancy—it should be based on her performance before that date. Else, despite whatever the company says or does, the Labour Department is bound to interpret it as what she is claiming is right. Hope you get the point.
Anyway, I suggest involving your company advocate for sure.
I suggest waiting for the legal members of CiteHR also to respond—they would be able to guide you better on how to handle the Labour Department Notice.
All the best.
Regards,
TS
From India, Hyderabad
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Thanks, Mr. Sateesh, for your quick response. However, the fact is that she never informed management about her pregnancy herself. Management only became aware when she fainted in the office last week of March. She has not formally provided this information to management.
She joined on October 16, 2012, but only worked for 7 days in October. She formally started working in November 2012. Until March 2013, she had worked for 146 days (from October to March), but she was pregnant in January 2013.
My main doubt is whether the number of working days (80 days) under the maternity act is counted before pregnancy or includes the pregnancy.
From India, Gurgaon
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She joined on October 16, 2012, but only worked for 7 days in October. She formally started working in November 2012. Until March 2013, she had worked for 146 days (from October to March), but she was pregnant in January 2013.
My main doubt is whether the number of working days (80 days) under the maternity act is counted before pregnancy or includes the pregnancy.
From India, Gurgaon
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80 days are counted backwards from the expected date of confinement as per the medical certificate she produces. The expansion of the family agreement is of no legal value. Please read section 12 of the Maternity Benefit Act for dismissal.
Varghese Mathew
From India, Thiruvananthapuram
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Varghese Mathew
From India, Thiruvananthapuram
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Dear Prabha,
You have mixed here two issues. One is her poor performance and the second is her maternity.
In fact, you have mixed issues with the person itself. Concentrate on the issues and not on the person.
When the woman employee joined in Oct 2012, she was not pregnant. Later, she became pregnant in Jan 2013. She could have been a little more careful; however, these things happen.
You have written, "When her performance was discussed with her in person she reacted unprofessionally." Now, my question is how was the performance feedback given? Was the subject of maternity brought up in the performance discussion? If yes, then that was a big mistake. Do you have records of any feedback?
When the woman employee was dismissed, did you conduct any inquiry? I doubt it. Considering her delinquent nature or combative attitude, you could have conducted an inquiry and then dismissed her. She had the temerity to call seven family members, and they also tried to threaten your Director. The writing on the wall was quite clear about whom you are dealing with.
Poor performance could have been grounds for her dismissal. If you had followed the principles of natural justice, you would not have needed to worry about the labor officer or the labor court itself.
The woman employee has shown intransigence of the highest kind. But then, why was it not detected at the time of her job interview? What questions did you ask to check her attitude? Through skillful questioning, did you verify her past performance?
Now, coming to personal feedback for you. Do not feel bad about it, but the situation merits giving negative feedback to you. Your designation is "Sr Manager HR." The way the matter is being handled, the way you have raised the query about the Maternity Benefit Act, etc., shows that you have not done justice to your designation.
Are you a local from Delhi or an outsider? I ask this question because for an outsider, it is important to understand the psychology of local employees. What happened in July 2012 in Manesar, Haryana was an eye-opener. You could have learned a lesson from this incident.
Anyway, your challenge is to prove through material evidence her poor performance. When you have an appointment with the labor officer, go to his office with complete evidence. Do not mix the subject of maternity. Prove that she was dismissed because of her poor performance.
Ok...
Dinesh V Divekar
From India, Bangalore
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You have mixed here two issues. One is her poor performance and the second is her maternity.
In fact, you have mixed issues with the person itself. Concentrate on the issues and not on the person.
When the woman employee joined in Oct 2012, she was not pregnant. Later, she became pregnant in Jan 2013. She could have been a little more careful; however, these things happen.
You have written, "When her performance was discussed with her in person she reacted unprofessionally." Now, my question is how was the performance feedback given? Was the subject of maternity brought up in the performance discussion? If yes, then that was a big mistake. Do you have records of any feedback?
When the woman employee was dismissed, did you conduct any inquiry? I doubt it. Considering her delinquent nature or combative attitude, you could have conducted an inquiry and then dismissed her. She had the temerity to call seven family members, and they also tried to threaten your Director. The writing on the wall was quite clear about whom you are dealing with.
Poor performance could have been grounds for her dismissal. If you had followed the principles of natural justice, you would not have needed to worry about the labor officer or the labor court itself.
The woman employee has shown intransigence of the highest kind. But then, why was it not detected at the time of her job interview? What questions did you ask to check her attitude? Through skillful questioning, did you verify her past performance?
Now, coming to personal feedback for you. Do not feel bad about it, but the situation merits giving negative feedback to you. Your designation is "Sr Manager HR." The way the matter is being handled, the way you have raised the query about the Maternity Benefit Act, etc., shows that you have not done justice to your designation.
Are you a local from Delhi or an outsider? I ask this question because for an outsider, it is important to understand the psychology of local employees. What happened in July 2012 in Manesar, Haryana was an eye-opener. You could have learned a lesson from this incident.
Anyway, your challenge is to prove through material evidence her poor performance. When you have an appointment with the labor officer, go to his office with complete evidence. Do not mix the subject of maternity. Prove that she was dismissed because of her poor performance.
Ok...
Dinesh V Divekar
From India, Bangalore
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Dear Prabha,
One more thing that escaped my attention in my last post: You have not written anything about her probation. When you issued her the appointment letter, did you include a probation clause? If yes, for how many months was it?
In most companies, employees are kept on probation for six months. In this case, considering the incident that occurred in March, you could have either extended this probation period or even terminated her employment.
Please clarify this point as well.
Thanks,
Dinesh V Divekar
From India, Bangalore
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One more thing that escaped my attention in my last post: You have not written anything about her probation. When you issued her the appointment letter, did you include a probation clause? If yes, for how many months was it?
In most companies, employees are kept on probation for six months. In this case, considering the incident that occurred in March, you could have either extended this probation period or even terminated her employment.
Please clarify this point as well.
Thanks,
Dinesh V Divekar
From India, Bangalore
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Respected Dinesh Sir,
Thanks for the reply. I would like to inform you in detail. I joined this organization in April only, and the employee about whom I was discussing was working from October 2012. I will answer point by point the issues you raised in your reply:
1) Her interview was conducted by the Director himself, so I am not sure what parameters he kept in mind while checking her attitude. Moreover, she was referred by an existing employee.
2) When she joined, she was the second-highest authority after the Director, as her main task was to ensure the smooth functioning of the office in the absence of the Director. Her probation period was three months, which is common for all staff in our organization. As she was responsible for Operations and office administration, she had to create her confirmation letter, which she did not do, although she made her appointment letter.
3) I am highlighting a single issue, which is non-performance. When I joined, our Director informed me about her non-performance and how she neglected Office Administration, Petty Cash management, and the engagement of technical employees, which were routine parts of her job.
4) I take responsibility for not handling this matter better, as this kind of exposure was entirely new to me. Moreover, the involvement of her family members in this case worsened the situation in our Director's mind. He felt that if this behavior was tolerated once, it would give others a chance to use similar tactics.
5) It's not that we did not discuss her performance based on feedback she provided. I drafted the Key Result Areas (KRA) in consultation with seniors and issued them to everyone, which she refused to accept. After discussing 2-3 times, we mutually revised the KRAs for her.
6) Being a female, I empathize with her, but due to her attitude and negligence towards work, Management has decided to terminate her.
Sir, it is not me who is conflating two issues; it is she who is now intertwining her maternity into this termination, although she did not inform management about her pregnancy.
You can understand this by the fact that she insisted on cash payment for her full and final settlement. After clearing her cheque, she lodged a complaint with the Labor Commissioner.
In fact, we had our initial hearing where the Labor Commissioner listened to both of us and suggested that both parties should resolve the matter. However, we both declined, as we do not intend to reinstate her and do not wish to provide maternity benefits.
Sir, I would like to understand the clause of 80 days under the Maternity Act, including when it starts counting, and if it applies in our case.
I seek your guidance in this particular case, as this is a completely new subject for me.
Thanks & Regards,
Prabha Dash
From India, Gurgaon
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Thanks for the reply. I would like to inform you in detail. I joined this organization in April only, and the employee about whom I was discussing was working from October 2012. I will answer point by point the issues you raised in your reply:
1) Her interview was conducted by the Director himself, so I am not sure what parameters he kept in mind while checking her attitude. Moreover, she was referred by an existing employee.
2) When she joined, she was the second-highest authority after the Director, as her main task was to ensure the smooth functioning of the office in the absence of the Director. Her probation period was three months, which is common for all staff in our organization. As she was responsible for Operations and office administration, she had to create her confirmation letter, which she did not do, although she made her appointment letter.
3) I am highlighting a single issue, which is non-performance. When I joined, our Director informed me about her non-performance and how she neglected Office Administration, Petty Cash management, and the engagement of technical employees, which were routine parts of her job.
4) I take responsibility for not handling this matter better, as this kind of exposure was entirely new to me. Moreover, the involvement of her family members in this case worsened the situation in our Director's mind. He felt that if this behavior was tolerated once, it would give others a chance to use similar tactics.
5) It's not that we did not discuss her performance based on feedback she provided. I drafted the Key Result Areas (KRA) in consultation with seniors and issued them to everyone, which she refused to accept. After discussing 2-3 times, we mutually revised the KRAs for her.
6) Being a female, I empathize with her, but due to her attitude and negligence towards work, Management has decided to terminate her.
Sir, it is not me who is conflating two issues; it is she who is now intertwining her maternity into this termination, although she did not inform management about her pregnancy.
You can understand this by the fact that she insisted on cash payment for her full and final settlement. After clearing her cheque, she lodged a complaint with the Labor Commissioner.
In fact, we had our initial hearing where the Labor Commissioner listened to both of us and suggested that both parties should resolve the matter. However, we both declined, as we do not intend to reinstate her and do not wish to provide maternity benefits.
Sir, I would like to understand the clause of 80 days under the Maternity Act, including when it starts counting, and if it applies in our case.
I seek your guidance in this particular case, as this is a completely new subject for me.
Thanks & Regards,
Prabha Dash
From India, Gurgaon
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I believe in order to claim maternity benefits, it is quite important to inform the organization about the pregnancy.
In this case, though the lady was pregnant since January, she never informed anyone, and neither did she ask the HR about how to proceed with maternity benefits and how it would be initiated. In this case, I don't think the company or its members are smart enough to know which of their female staff are expecting.
Kindly note that when the female staff is informing about her pregnancy, ideally the companies ask for a medical certificate or a letter from a gynecologist which states the expected date of delivery and the date when the expecting condition was detected.
I doubt she submitted any letter from a gynecologist before the termination letter or decision was communicated to her.
Ideally, I would ask the person to show the evidence of any letter, email, or any verbal communication made to anyone regarding her pregnancy, and if the family members informed you of her expecting condition after she was communicated about the management's issue of termination, maternity policy does not apply.
Seniors, please correct me if I stand wrong.
As far as the 80-day criteria is to be taken into consideration, a female should have worked for at least 80 days in a year prior to the claim of maternity benefit. Ideally, she must have completed the 80-day timeframe in the organization now that she's been working for almost 10 months even if she must have taken a good number of leaves.
Hope this helped.
From India, Mumbai
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In this case, though the lady was pregnant since January, she never informed anyone, and neither did she ask the HR about how to proceed with maternity benefits and how it would be initiated. In this case, I don't think the company or its members are smart enough to know which of their female staff are expecting.
Kindly note that when the female staff is informing about her pregnancy, ideally the companies ask for a medical certificate or a letter from a gynecologist which states the expected date of delivery and the date when the expecting condition was detected.
I doubt she submitted any letter from a gynecologist before the termination letter or decision was communicated to her.
Ideally, I would ask the person to show the evidence of any letter, email, or any verbal communication made to anyone regarding her pregnancy, and if the family members informed you of her expecting condition after she was communicated about the management's issue of termination, maternity policy does not apply.
Seniors, please correct me if I stand wrong.
As far as the 80-day criteria is to be taken into consideration, a female should have worked for at least 80 days in a year prior to the claim of maternity benefit. Ideally, she must have completed the 80-day timeframe in the organization now that she's been working for almost 10 months even if she must have taken a good number of leaves.
Hope this helped.
From India, Mumbai
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Prabha,
On 7th July, I posted about the 80-day clause. She is eligible for the benefit. If you fail to pay it, you will be liable for revenue recovery and/or punishment under Section 21 of the Act. For more information, please contact.
VARGHESE MATHEW
9961266966
From India, Thiruvananthapuram
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On 7th July, I posted about the 80-day clause. She is eligible for the benefit. If you fail to pay it, you will be liable for revenue recovery and/or punishment under Section 21 of the Act. For more information, please contact.
VARGHESE MATHEW
9961266966
From India, Thiruvananthapuram
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Hello Mr. Mathew,
As per the criteria of 80 days, the lady is eligible to receive maternity benefits. However, the benefits are intended for employees only, not terminated employees.
If the lady fails to inform the company about her medical condition, and the company terminates her based on performance before knowing about her pregnancy, she is now accusing the company of terminating her due to her pregnancy. How can we address this?
To claim maternity benefits:
1) The female must be an employee of the employer and must have served a minimum period of 80 days.
2) Maternity benefits are only for females who are actually expecting; not all females are eligible.
3) It is the employee's responsibility, not the employer's, to communicate her condition.
4) When informing about the maternity condition, the employee should provide a medical letter from her gynecologist to certify the condition.
As HR professionals, we need to be supportive of employees, but only if they are acting in good faith. If I don't inform my company about my pregnancy, how can I expect them to know? It's as simple as that. Kindly correct me if I am mistaken.
From India, Mumbai
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As per the criteria of 80 days, the lady is eligible to receive maternity benefits. However, the benefits are intended for employees only, not terminated employees.
If the lady fails to inform the company about her medical condition, and the company terminates her based on performance before knowing about her pregnancy, she is now accusing the company of terminating her due to her pregnancy. How can we address this?
To claim maternity benefits:
1) The female must be an employee of the employer and must have served a minimum period of 80 days.
2) Maternity benefits are only for females who are actually expecting; not all females are eligible.
3) It is the employee's responsibility, not the employer's, to communicate her condition.
4) When informing about the maternity condition, the employee should provide a medical letter from her gynecologist to certify the condition.
As HR professionals, we need to be supportive of employees, but only if they are acting in good faith. If I don't inform my company about my pregnancy, how can I expect them to know? It's as simple as that. Kindly correct me if I am mistaken.
From India, Mumbai
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Maternity Benefit Act - Act Provisions reg.benefits.do cx
Maternity Benefits Act 1961.pdf