Sir,
I am working as Sr Manager HR in a Education solution provider company who trade Audio Video equipment's from usa, Taiwan and use the same in projects of education solution in school, colleges .
The company is only 2 and half years old and in developing phase with slow growth rate and we come under Delhi shop and establishment Act.
The co. had appointed an operation manager in Oct 2012 who is a women. During her joining it was clearly asked her if she has any family expansion planning as the organisation is new and would be affected if she discontinues her work I a short duration, which she has denied that time. In oct she had worked only for 7 days and formally joined in Nov 2012.
In Jan 2013 she got pregnant and also due to her health issues (She is bronchitis Patient) she was not able to focus on her work and deliver the desired result for which her appointment was made. Moreover in March which is most crucial month for target completion she has gone on 9 days leave and after coming back again took 2 days leave further. Management was not happy with her attitude towards work negligence. When her performance was discussed with her in person she reacted unprofessionally and called her 7 family members who came and threatened our Director to let her continue working moreover they tried to put false blame that because of her pregnancy management is trying to sack her. But the fact is she never formally informed till March 2013 about her pregnancy and it came to light only when she fainted in office premises 2 - 3 times in March last week.
We issued her KRA with specific jobs to be done which she accepted but didn't tried to achieve the same.
Moreover she tried to confront with her seniors whenever any work is demanded. Finally Management decided and we gave her notice on 31st May. She asked the salary and notice pay in cash which we didnt accepted and finally she took the cheque for the same on 5th June 2013. After clearing of cheque her husband came to claim maternity benefit and threatened to go to Labour commissioner. They had then complained the same in Dy Lab Commissioner office complaining of mental harassment at workplace and also she claimed Maternity Benefits and job restoration as well. We received the notice and now we are replying the same.
As per the Maternity Benefit Act An women employee can claim her employer Maternity Benefits if she has worked for min 80 days but my doubt is whether the period of 80 days even count the period when she was already pregnant or before pregnancy. Moreover is it illegal to terminate the services of an women employee if she is not performing just because she is pregnant. I mean pregnancy should not be used as shield to protect you job if one is not performing. What are our rights to fight this case.
Please advice me. I myself is also a women but I feel that motherhood should not be misused when we are talking of equality in gender and feel that women is not less than men in any terms. Moreover after accepting the Notice period salary how can any employee claim for job restoration and other benefits.
Please guide me the right way to handle this case and clear my doubt about Maternity Act implementation
From India, Gurgaon
I am working as Sr Manager HR in a Education solution provider company who trade Audio Video equipment's from usa, Taiwan and use the same in projects of education solution in school, colleges .
The company is only 2 and half years old and in developing phase with slow growth rate and we come under Delhi shop and establishment Act.
The co. had appointed an operation manager in Oct 2012 who is a women. During her joining it was clearly asked her if she has any family expansion planning as the organisation is new and would be affected if she discontinues her work I a short duration, which she has denied that time. In oct she had worked only for 7 days and formally joined in Nov 2012.
In Jan 2013 she got pregnant and also due to her health issues (She is bronchitis Patient) she was not able to focus on her work and deliver the desired result for which her appointment was made. Moreover in March which is most crucial month for target completion she has gone on 9 days leave and after coming back again took 2 days leave further. Management was not happy with her attitude towards work negligence. When her performance was discussed with her in person she reacted unprofessionally and called her 7 family members who came and threatened our Director to let her continue working moreover they tried to put false blame that because of her pregnancy management is trying to sack her. But the fact is she never formally informed till March 2013 about her pregnancy and it came to light only when she fainted in office premises 2 - 3 times in March last week.
We issued her KRA with specific jobs to be done which she accepted but didn't tried to achieve the same.
Moreover she tried to confront with her seniors whenever any work is demanded. Finally Management decided and we gave her notice on 31st May. She asked the salary and notice pay in cash which we didnt accepted and finally she took the cheque for the same on 5th June 2013. After clearing of cheque her husband came to claim maternity benefit and threatened to go to Labour commissioner. They had then complained the same in Dy Lab Commissioner office complaining of mental harassment at workplace and also she claimed Maternity Benefits and job restoration as well. We received the notice and now we are replying the same.
As per the Maternity Benefit Act An women employee can claim her employer Maternity Benefits if she has worked for min 80 days but my doubt is whether the period of 80 days even count the period when she was already pregnant or before pregnancy. Moreover is it illegal to terminate the services of an women employee if she is not performing just because she is pregnant. I mean pregnancy should not be used as shield to protect you job if one is not performing. What are our rights to fight this case.
Please advice me. I myself is also a women but I feel that motherhood should not be misused when we are talking of equality in gender and feel that women is not less than men in any terms. Moreover after accepting the Notice period salary how can any employee claim for job restoration and other benefits.
Please guide me the right way to handle this case and clear my doubt about Maternity Act implementation
From India, Gurgaon
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/it's position in any Worst-case-Scenario
Coming to your present predicament, pl confirm how many days did she ACTUALLY work [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/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, pl clarify IF there is any record of this either being discussed with her?
Looking back, I think your company did the RIGHT thing in NOT giving her NP salary in cash--looks like they [wife & 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 Dept is bound to interprete it as what she is claiming is right. Hope you get the point.
Anyway, suggest involve your company advocate for sure.
Suggest wait for the legal members of CiteHR also to respond--they would be able to guide you better on how to handle the Labour Dept Notice.
All the Best.
Rgds,
TS
From India, Hyderabad
1637Like 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/it's position in any Worst-case-Scenario
Coming to your present predicament, pl confirm how many days did she ACTUALLY work [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/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, pl clarify IF there is any record of this either being discussed with her?
Looking back, I think your company did the RIGHT thing in NOT giving her NP salary in cash--looks like they [wife & 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 Dept is bound to interprete it as what she is claiming is right. Hope you get the point.
Anyway, suggest involve your company advocate for sure.
Suggest wait for the legal members of CiteHR also to respond--they would be able to guide you better on how to handle the Labour Dept Notice.
All the Best.
Rgds,
TS
From India, Hyderabad
Thanks Mr. Sateesh ,
For your quick response, but to tell you the fact is that she has never informed management about her pregnancy from her own, and it came to knowledge when she fainted in office in March Last week. but she never given this information to management formally.
She joined in Oct 16 2012 but worked for 7 days only in October and formally joined in Nov 2012.
Till March 2013 she has worked for 146 days (From Oct to March) but she was pregnant in Jan 2013 .
The no of working days (80 Days) under maternity act is counted prior pregnancy or including pregnancy. My main doubt is this.
From India, Gurgaon
For your quick response, but to tell you the fact is that she has never informed management about her pregnancy from her own, and it came to knowledge when she fainted in office in March Last week. but she never given this information to management formally.
She joined in Oct 16 2012 but worked for 7 days only in October and formally joined in Nov 2012.
Till March 2013 she has worked for 146 days (From Oct to March) but she was pregnant in Jan 2013 .
The no of working days (80 Days) under maternity act is counted prior pregnancy or including pregnancy. My main doubt is this.
From India, Gurgaon
80 days is counted backwards from the expected date of confinement as per the medical certificate she produces.No- expansion of family agreement is of no legal value.Pl read sec 12 of MB Act also for dismissal.
Varghese Mathew
From India, Thiruvananthapuram
Varghese Mathew
From India, Thiruvananthapuram
Dear Prabha,
You have mixed here two issues. One is her poor performance and 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 carrying. Later she became pregnant in Jan 2013. She could have been little careful however, these things happen.
You have written that "When her performance was discussed with her in person she reacted unprofessionally". Now my question is how the performance feedback was given? Was this subject of maternity brought in the performance discussion? If yes then that was a big mistake. Do you have records of any feedback?
When the woman employee was removed, did you conduct any enquiry? I doubt it. Considering her delinquent nature or considering her combative attitude, you could have conducted enquiry and then removed her. She had temerity to call seven family members and they also tried to threaten your Director. The writing on the wall was quite clear with whom you are dealing with.
Poor performance could have been ground for her removal. If you had followed principles of natural justice, you were not required to worry about labour officer or labour court itself.
Woman employee has shown her intransigence of the highest kind. But then why it was not detected at the time of her job interview itself? What questions you had asked to check her attitude? Through skilful questioning, did you verify her past performance?
Now coming to personal feedback to you. Do not feel bad about it but situation merits giving negative feedback to you. Your designation is "Sr Manager HR". The way matter is being handled, the way you have raised the query about Maternity Benefit Act etc, shows that you have not done justice to your designation.
Are you a local from Delhi or 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 eye opener. You could have learnt lesson from this incident.
Anyway, your challenge is to prove through material evidence her poor performance. When you have appointment with labour officer, go to his office with complete evidence. Do not mix subject of maternity. Prove that she was removed because of her poor performance.
Ok...
Dinesh V Divekar
From India, Bangalore
You have mixed here two issues. One is her poor performance and 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 carrying. Later she became pregnant in Jan 2013. She could have been little careful however, these things happen.
You have written that "When her performance was discussed with her in person she reacted unprofessionally". Now my question is how the performance feedback was given? Was this subject of maternity brought in the performance discussion? If yes then that was a big mistake. Do you have records of any feedback?
When the woman employee was removed, did you conduct any enquiry? I doubt it. Considering her delinquent nature or considering her combative attitude, you could have conducted enquiry and then removed her. She had temerity to call seven family members and they also tried to threaten your Director. The writing on the wall was quite clear with whom you are dealing with.
Poor performance could have been ground for her removal. If you had followed principles of natural justice, you were not required to worry about labour officer or labour court itself.
Woman employee has shown her intransigence of the highest kind. But then why it was not detected at the time of her job interview itself? What questions you had asked to check her attitude? Through skilful questioning, did you verify her past performance?
Now coming to personal feedback to you. Do not feel bad about it but situation merits giving negative feedback to you. Your designation is "Sr Manager HR". The way matter is being handled, the way you have raised the query about Maternity Benefit Act etc, shows that you have not done justice to your designation.
Are you a local from Delhi or 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 eye opener. You could have learnt lesson from this incident.
Anyway, your challenge is to prove through material evidence her poor performance. When you have appointment with labour officer, go to his office with complete evidence. Do not mix subject of maternity. Prove that she was removed because of her poor performance.
Ok...
Dinesh V Divekar
From India, Bangalore
Dear Prabha,
One more thing that escaped from my attention in my last post. You have not written anything about her probation. When you had issued her the appointment letter, did you insert the clause of probation? If yes then it was for how many months?
In most of the companies, employee are kept on probation for six months. In that case considering the incident that happened in March, you could have either extended this probation period or even removed her from the employment itself.
Please clarify on this point as well.
Thanks,
Dinesh V Divekar
From India, Bangalore
One more thing that escaped from my attention in my last post. You have not written anything about her probation. When you had issued her the appointment letter, did you insert the clause of probation? If yes then it was for how many months?
In most of the companies, employee are kept on probation for six months. In that case considering the incident that happened in March, you could have either extended this probation period or even removed her from the employment itself.
Please clarify on this point as well.
Thanks,
Dinesh V Divekar
From India, Bangalore
Respected Dinesh Sir,
Thanks for the reply. Would like to inform you in detail, I joined this organisation in April only and the employee about whom I was discussing was working from Oct 2012. I would answer point by point you have raised in your reply
1) Her interview was conducted by Director himself and hence I am not sure what parameters he kept in mind in checking her attitude, moreover she was refferred by an existing employee.
2) When she joined she was the 2nd higher Authority after the Director as her main work was to ensure smooth functioning of office in the absence of Director. Her probation period was three months which is common for all staff in our org, As she was looking after the Operations and office administration so she herself has to made her confirmation letter which she didnt do though she has made her Appointment letter.
3) I am pointing on one single issue that is non performance, on my joining I was informed by our Director about her non Performance and the way she was not taking care of Office Administration, Petty Cash management and engagement of technical employees which was routine part of her job,
4) Sir I take this responsibility that I could not handle this matter in a better way as this kind of exposure was completely new subject for me, Moreover intervention of her family members in this case made it more worse in our Directors mind. He felt if this is entertained once then will give others also chance of using the same tantrums.
5) Its not that we had not discussed her performance on the basis of feedback she was giving, i drafted the KRA with consultation with the seniors and issued to everyone which she refused to accept, we discussed 2- 3 times and after mutual decision KRA were re framed for her.
6) I being a female surely feel for her but because of her attitude and negligence towards work Management has decided to remove her.
Sir its not me who is mixing two issues rather it is she who is now mixing her maternity into this termination whereas she has not inf management about her pregnancy.
You can understand this by this fact that she was insisting on cash payment of her full and final payment. Moreover after clearing of her cheque she has send this complaint to Lab Commissioner.
Infact we had our first hearing where Lab Commissioner has listened to both of us and asked both the parties to resolve the matter which we both have declined as we do not wish to take her back and also do not want to pay her maternity benefit.
Sir I want to know about the clause of 80 days under Maternity Act, it is counted from when. and does it apply in our case.
Sir would seek your guidance in this particular case as this is completely a new subject for me,
Thanks & Regard
Prabha Dash
From India, Gurgaon
Thanks for the reply. Would like to inform you in detail, I joined this organisation in April only and the employee about whom I was discussing was working from Oct 2012. I would answer point by point you have raised in your reply
1) Her interview was conducted by Director himself and hence I am not sure what parameters he kept in mind in checking her attitude, moreover she was refferred by an existing employee.
2) When she joined she was the 2nd higher Authority after the Director as her main work was to ensure smooth functioning of office in the absence of Director. Her probation period was three months which is common for all staff in our org, As she was looking after the Operations and office administration so she herself has to made her confirmation letter which she didnt do though she has made her Appointment letter.
3) I am pointing on one single issue that is non performance, on my joining I was informed by our Director about her non Performance and the way she was not taking care of Office Administration, Petty Cash management and engagement of technical employees which was routine part of her job,
4) Sir I take this responsibility that I could not handle this matter in a better way as this kind of exposure was completely new subject for me, Moreover intervention of her family members in this case made it more worse in our Directors mind. He felt if this is entertained once then will give others also chance of using the same tantrums.
5) Its not that we had not discussed her performance on the basis of feedback she was giving, i drafted the KRA with consultation with the seniors and issued to everyone which she refused to accept, we discussed 2- 3 times and after mutual decision KRA were re framed for her.
6) I being a female surely feel for her but because of her attitude and negligence towards work Management has decided to remove her.
Sir its not me who is mixing two issues rather it is she who is now mixing her maternity into this termination whereas she has not inf management about her pregnancy.
You can understand this by this fact that she was insisting on cash payment of her full and final payment. Moreover after clearing of her cheque she has send this complaint to Lab Commissioner.
Infact we had our first hearing where Lab Commissioner has listened to both of us and asked both the parties to resolve the matter which we both have declined as we do not wish to take her back and also do not want to pay her maternity benefit.
Sir I want to know about the clause of 80 days under Maternity Act, it is counted from when. and does it apply in our case.
Sir would seek your guidance in this particular case as this is completely a new subject for me,
Thanks & Regard
Prabha Dash
From India, Gurgaon
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 Jan, she never informed any one and neither did she asked the HR about how to proceed with Maternity benefits and how it would be initiated... In this case, I don't think Company or its members are smart enough to know which of their female staffs are expecting...
And 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 gynact which states the expected date of delivery and the date when the expecting condition was detected...
I doubt she submitted any letter from gynact before the termination letter or decision was communicated to her...
Ideally I would ask the person to show the evidence of any letter or email or any verbal communication made to any one 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 do not apply....
Seniors, Please correct me if I stand wrong...
===========
As far as 80 day's criteria is to be taken into consideration,
A female should have worked for atleast 80 days in a year prior to the claim of maternity benefit...
Ideally she must have completed 80 days' frame in the organization now that she's working for almost 10 months even if she must have taken good number of leaves...
===============
Hope this helped...
From India, Mumbai
In this case, though the lady was pregnant since Jan, she never informed any one and neither did she asked the HR about how to proceed with Maternity benefits and how it would be initiated... In this case, I don't think Company or its members are smart enough to know which of their female staffs are expecting...
And 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 gynact which states the expected date of delivery and the date when the expecting condition was detected...
I doubt she submitted any letter from gynact before the termination letter or decision was communicated to her...
Ideally I would ask the person to show the evidence of any letter or email or any verbal communication made to any one 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 do not apply....
Seniors, Please correct me if I stand wrong...
===========
As far as 80 day's criteria is to be taken into consideration,
A female should have worked for atleast 80 days in a year prior to the claim of maternity benefit...
Ideally she must have completed 80 days' frame in the organization now that she's working for almost 10 months even if she must have taken good number of leaves...
===============
Hope this helped...
From India, Mumbai
Prabha,
On 7th July I posted about 80 days clause.She is eligible for benefit.I f you fail to pay it you will be liable for revenue recovery and or punishment under sec 21 of the Act. For more pl contact.
VARGHESE MATHEW
9961266966
From India, Thiruvananthapuram
On 7th July I posted about 80 days clause.She is eligible for benefit.I f you fail to pay it you will be liable for revenue recovery and or punishment under sec 21 of the Act. For more pl contact.
VARGHESE MATHEW
9961266966
From India, Thiruvananthapuram
Hello Mr. Mathew..
As per the criteria of 80 days, the lady is eligible to get the maternity benefits. But the benefits are meant for employees only.... not terminated employees...
If the lady fails to inform about her medical condition to the company,
The company terminates her on her performance even before the know that she's expecting
Since she is now terminated, she's blaming the company that the company is terminating her on pregnancy grounds,
How do we buy it?
In order to claim maternity benefits -
1) The female ought to be a staff of the employer and min period of 80 days' service to be rendered.
2) Again maternity benefits are not meant for all ladies but only for the females who are actually expecting...
3) Same needs to be communicated (the responsibility lies on the employee and not employer)
4) While informing the maternity condition, we expect the person to inform via medical letter issued by her gynact to certify the condition.
Being into HR, we need to have soft corner for employees, only if they are righteous...
I intend to say is if I do not inform my company about my pregnancy, how do I expect them to know???
As simple as that...
Kindly correct me if I am wrong...
From India, Mumbai
As per the criteria of 80 days, the lady is eligible to get the maternity benefits. But the benefits are meant for employees only.... not terminated employees...
If the lady fails to inform about her medical condition to the company,
The company terminates her on her performance even before the know that she's expecting
Since she is now terminated, she's blaming the company that the company is terminating her on pregnancy grounds,
How do we buy it?
In order to claim maternity benefits -
1) The female ought to be a staff of the employer and min period of 80 days' service to be rendered.
2) Again maternity benefits are not meant for all ladies but only for the females who are actually expecting...
3) Same needs to be communicated (the responsibility lies on the employee and not employer)
4) While informing the maternity condition, we expect the person to inform via medical letter issued by her gynact to certify the condition.
Being into HR, we need to have soft corner for employees, only if they are righteous...
I intend to say is if I do not inform my company about my pregnancy, how do I expect them to know???
As simple as that...
Kindly correct me if I am wrong...
From India, Mumbai
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Maternity Benefit Act - Act Provisions reg.benefits.do cx
Maternity Benefits Act 1961.pdf