Hi all,
I would like to understand whether inefficiency amounts to misconduct or termination of an inefficient employee can be under retrenchment. I am looking for case law which states that inefficiency amounts to misconduct and termination for inefficiency is/is not retrenchment. I have not found any specific regulation which defines inefficiency as misconduct. Even though, the section for retrenchment under the ID Act states "any reason whatsoever", I have found articles on the internet which state that termination for inefficiency is not retrenchment. However, these articles do not provide any supporting case law.
Thanks
From India, Gurgaon
I would like to understand whether inefficiency amounts to misconduct or termination of an inefficient employee can be under retrenchment. I am looking for case law which states that inefficiency amounts to misconduct and termination for inefficiency is/is not retrenchment. I have not found any specific regulation which defines inefficiency as misconduct. Even though, the section for retrenchment under the ID Act states "any reason whatsoever", I have found articles on the internet which state that termination for inefficiency is not retrenchment. However, these articles do not provide any supporting case law.
Thanks
From India, Gurgaon
Dear Mb_04,
Why do you want to handle employees' "inefficiency" under the provisions of labor laws? By the way, are you a student or a professional? What is the context of your query?
When an employer issues an "Appointment Letter," it is nothing but a "performance contract" between the employer and employee. The remuneration given to the employee is for the delivery of certain results or performance. Another factor for receiving a salary is observing the general discipline of the company.
I have a few questions about employee inefficiency. These are as follows:
a) On what grounds do you say that the employee was inefficient? Have you investigated the causes of inefficiency? Is the employee lacking tools or other job aids? On a scale of 100, where does he/she stand?
b) Was the employee given sufficient training to execute the work?
c) By the way, is this a recruitment problem? Did you give prominence to the "salary bracket" over the "skill bracket"? Did you recruit a misfit and are now taking corrective action?
d) What about the employee's manager? Did he/she provide sufficient support to the underperforming employee? How much time did the manager spend with this employee?
e) Termination on the grounds of "inefficiency" is a loss to the company. Who has measured this loss and on what parameters? Who is accountable for reducing this loss?
There are so many questions, gentlemen, that cannot be swept under the carpet of labor laws.
Ok...
Dinesh V Divekar
From India, Bangalore
8030Why do you want to handle employees' "inefficiency" under the provisions of labor laws? By the way, are you a student or a professional? What is the context of your query?
When an employer issues an "Appointment Letter," it is nothing but a "performance contract" between the employer and employee. The remuneration given to the employee is for the delivery of certain results or performance. Another factor for receiving a salary is observing the general discipline of the company.
I have a few questions about employee inefficiency. These are as follows:
a) On what grounds do you say that the employee was inefficient? Have you investigated the causes of inefficiency? Is the employee lacking tools or other job aids? On a scale of 100, where does he/she stand?
b) Was the employee given sufficient training to execute the work?
c) By the way, is this a recruitment problem? Did you give prominence to the "salary bracket" over the "skill bracket"? Did you recruit a misfit and are now taking corrective action?
d) What about the employee's manager? Did he/she provide sufficient support to the underperforming employee? How much time did the manager spend with this employee?
e) Termination on the grounds of "inefficiency" is a loss to the company. Who has measured this loss and on what parameters? Who is accountable for reducing this loss?
There are so many questions, gentlemen, that cannot be swept under the carpet of labor laws.
Ok...
Dinesh V Divekar
From India, Bangalore
Hi Dinesh,
Thank you for your response. I am a professional and need to put in place the termination policy. We have clear regulations regarding termination for misconduct and retrenchment. However, termination for inefficiency is ambiguous. Please note that before termination for inefficiency, all due processes are investigated, i.e., the underlying cause of the inefficiency - be it the company or the employee lacking training, skill set, etc.
My interest lies in understanding whether inefficiency amounts to misconduct or not. If it does not, can it be treated as retrenchment? Are there any landmark case laws that state whether inefficiency is or is not retrenchment? I would appreciate a response on this exact issue.
From India, Gurgaon
Thank you for your response. I am a professional and need to put in place the termination policy. We have clear regulations regarding termination for misconduct and retrenchment. However, termination for inefficiency is ambiguous. Please note that before termination for inefficiency, all due processes are investigated, i.e., the underlying cause of the inefficiency - be it the company or the employee lacking training, skill set, etc.
My interest lies in understanding whether inefficiency amounts to misconduct or not. If it does not, can it be treated as retrenchment? Are there any landmark case laws that state whether inefficiency is or is not retrenchment? I would appreciate a response on this exact issue.
From India, Gurgaon
Termination for inefficiency would be invalid. Inefficiency is not misconduct, but deliberate go-slow is misconduct and can be taken cognizance of. If found necessary, disciplinary proceedings can be initiated. However, at the time of retrenchment, the rule of first come, last go can be deviated, and inefficient persons, even though senior, can be retrenched.
From India, Pune
From India, Pune
Dear mb_04,
Underperformance is not misconduct. However, if things come to termination, it is better to follow the principles of natural justice, i.e., conduct the domestic enquiry and then terminate the employee. I say this because if the employee were to file a suit later, records of the domestic enquiry come in handy in litigation.
Underperformance of an employee is completely different from retrenchment and cannot be handled under the provisions of the retrenchment clauses of the ID Act, 1947.
I recommend creating a comprehensive policy on employee separation. This policy could cover separation due to various reasons such as normal separation, separation on disciplinary grounds, or separation due to underperformance. For the latter two cases, clearly spell out how progressive discipline will be handled.
Ok...
Dinesh V Divekar
From India, Bangalore
Underperformance is not misconduct. However, if things come to termination, it is better to follow the principles of natural justice, i.e., conduct the domestic enquiry and then terminate the employee. I say this because if the employee were to file a suit later, records of the domestic enquiry come in handy in litigation.
Underperformance of an employee is completely different from retrenchment and cannot be handled under the provisions of the retrenchment clauses of the ID Act, 1947.
I recommend creating a comprehensive policy on employee separation. This policy could cover separation due to various reasons such as normal separation, separation on disciplinary grounds, or separation due to underperformance. For the latter two cases, clearly spell out how progressive discipline will be handled.
Ok...
Dinesh V Divekar
From India, Bangalore
Hi Dinesh, Thanks for your response. It certainly helps. I have a case law which states that inefficiency is not misconduct. However, a deliberate go-slow may be treated as misconduct. Are you aware of any case law which states that termination for inefficiency is not retrenchment.
From India, Gurgaon
From India, Gurgaon
I totally agree and support Mr. Dinesh Divekar's view.
In fact, I had expected more from him in calling a 'spade' a 'spade'.
The very idea of linking the term "inefficiency" with "retrenchment" seems mischievous and with questionable motives especially when it is desired to be linked with a Termination Policy.
The lawmakers, judicial system, and HRM in general have very rightly and in their far-seeing wisdom; desisted from linking these two terms.
This is the reason our member Mb_04 is unable to find any such reference for including in his agenda - a Policy for termination - which would allow easy termination by labeling anyone as inefficient!
The term inefficient cannot be defined precisely and thus is open to interpretations - and this in the hands of certain companies which are short on ethics can prove to be a disastrous weapon.
Even if inefficiency is defined scientifically, it is based on the rationale of Input to Output.
So, who is actually responsible for the input?
Which means if there is a shortage or problems with input such as work or business or orders/demand; power; raw material, etc., and it affects the output, a worker can be blamed for the inefficiency and fired unceremoniously, for none of his fault!
I think it's better to restrict the use of this term to managers and hire-and-fire them at will, as is being done today.
To use such a discriminative and ambiguous term as a ploy to fire workers or workmen sounds malafide.
Let these be governed by the relevant acts which do not take into consideration the term "inefficiency" and hence rightly no reference or case laws have been found.
At times, the law is always a few steps ahead of those who intend to circumvent it!
And let good professional managers be more proactive and concerned about increasing the efficiency of their employees as suggested by Mr. Divekar, rather than finding ways to terminate on account of inefficiency.
To conclude, in a layman's view one can say that when a company hires a worker when there is a lot of business, he is very efficient (because it's assumed no company would like to hire inefficient workers or admit that something is wrong with their hiring process); and when the business is bad, suddenly the same workers become inefficient!
It is okay to retrench to save the business, but it's quite unfair to brand them inefficient and terminate them with impunity.
This is why retrenchment does not include inefficiency. A company must be honest in accepting the facts of retrenchment and admit that it's unable to get more business.
Warm regards.
From India, Delhi
In fact, I had expected more from him in calling a 'spade' a 'spade'.
The very idea of linking the term "inefficiency" with "retrenchment" seems mischievous and with questionable motives especially when it is desired to be linked with a Termination Policy.
The lawmakers, judicial system, and HRM in general have very rightly and in their far-seeing wisdom; desisted from linking these two terms.
This is the reason our member Mb_04 is unable to find any such reference for including in his agenda - a Policy for termination - which would allow easy termination by labeling anyone as inefficient!
The term inefficient cannot be defined precisely and thus is open to interpretations - and this in the hands of certain companies which are short on ethics can prove to be a disastrous weapon.
Even if inefficiency is defined scientifically, it is based on the rationale of Input to Output.
So, who is actually responsible for the input?
Which means if there is a shortage or problems with input such as work or business or orders/demand; power; raw material, etc., and it affects the output, a worker can be blamed for the inefficiency and fired unceremoniously, for none of his fault!
I think it's better to restrict the use of this term to managers and hire-and-fire them at will, as is being done today.
To use such a discriminative and ambiguous term as a ploy to fire workers or workmen sounds malafide.
Let these be governed by the relevant acts which do not take into consideration the term "inefficiency" and hence rightly no reference or case laws have been found.
At times, the law is always a few steps ahead of those who intend to circumvent it!
And let good professional managers be more proactive and concerned about increasing the efficiency of their employees as suggested by Mr. Divekar, rather than finding ways to terminate on account of inefficiency.
To conclude, in a layman's view one can say that when a company hires a worker when there is a lot of business, he is very efficient (because it's assumed no company would like to hire inefficient workers or admit that something is wrong with their hiring process); and when the business is bad, suddenly the same workers become inefficient!
It is okay to retrench to save the business, but it's quite unfair to brand them inefficient and terminate them with impunity.
This is why retrenchment does not include inefficiency. A company must be honest in accepting the facts of retrenchment and admit that it's unable to get more business.
Warm regards.
From India, Delhi
Seriously, people, all I am asking here is if there is a legal process in place. You all seem to be rather presumptuous and jumping the gun here and taking on an employee's cause. There is no termination going on here. Just an attempt to understand the process. This is not an exercise to disguise termination but an exercise to understand the process. I have come across Supreme Court cases where an employee has been terminated for being inefficient. My issue here is whether that would fall under misconduct or retrenchment, and is there any case law on the topic. I request you to grant the other person a degree of intelligence to have evaluated all possible angles. Like I had told Mr. Dinesh, that any termination for inefficiency has to be taken only after investigating the root cause of inefficiency, i.e., whether the company is responsible or the employee. There are set procedures and guidelines which HAVE TO BE FOLLOWED. WITHOUT WHICH ANY TERMINATION WOULD BE ILLEGAL. I did not ask for your personal opinion; I asked if there is a legal process and what is the case law. I would appreciate it if you could provide an answer to the said query and not drone on about the ills of management. If you do not have anything constructive to add, don't answer. I REPEAT I AM NOT TRYING TO FIRE ANYONE FOR BEING INEFFICIENT. I AM TRYING TO UNDERSTAND WHETHER INEFFICIENCY FALLS UNDER RETRENCHMENT. IF THERE IS ANY CASE LAW WHICH STATES INEFFICIENCY IS/IS NOT GROUNDS FOR RETRENCHMENT. THERE IS NO COLORABLE ABUSE OF POWER HERE.
TO ALL THOSE WHO INTEND TO TALK ABOUT HOW BAD COMPANIES ARE VIS-A-VIS TERMINATION OF EMPLOYEES. THIS IS NOT THE POST FOR IT. IF YOU HAVE CASE LAW ON THE SUBJECT, PLEASE GO AHEAD AND REPLY.
From India, Gurgaon
TO ALL THOSE WHO INTEND TO TALK ABOUT HOW BAD COMPANIES ARE VIS-A-VIS TERMINATION OF EMPLOYEES. THIS IS NOT THE POST FOR IT. IF YOU HAVE CASE LAW ON THE SUBJECT, PLEASE GO AHEAD AND REPLY.
From India, Gurgaon
Dear Mb_04,
The basic problem with your first post was the lack of clarity. Without giving sufficient background information, you had raised the first post. To clarify what you wanted, you had given three posts.
Inefficiency and retrenchment are absolutely two unconnected things. A simple reference to the dictionary would have clarified your doubt. Furthermore, if you had referred to any book on the ID Act 1947, you would have found case law.
When you raise a post without doing sufficient spadework, you are bound to get replies of this kind. This happens because of perceptual gaps.
I am surprised at the repeated usage of the phrase "inefficiency." In HR Management, the general terms used are "performance" or "under-performance." How come you have yet to come to terms with this difference that I could not comprehend?
The last thing I would like to tell you is that you need to take training on the "Concept of Communication." I do not mean the concept of communication as "communication skills." You may be good at the latter, but you need to develop the former, that is for sure. Through your series of posts on the same subject, you have left sufficient evidence of this deficiency.
Gentleman, when you raise some query, basic courtesy demands disclosure of your identity. You wanted to conceal your identity and yet you want people to peep into your brain, understand your thinking, and give replies.
We are not paid consultants here. Even if you were to expect this from some paid consultant, he also would have failed on this count. Therefore, it is appropriate for you to choose your words carefully and choose your forum also carefully.
Instead of getting nervy at Mr. Raj Kumar Hansdah's post, have some self-examination, gentleman.
All the best!
Dinesh V Divekar
From India, Bangalore
The basic problem with your first post was the lack of clarity. Without giving sufficient background information, you had raised the first post. To clarify what you wanted, you had given three posts.
Inefficiency and retrenchment are absolutely two unconnected things. A simple reference to the dictionary would have clarified your doubt. Furthermore, if you had referred to any book on the ID Act 1947, you would have found case law.
When you raise a post without doing sufficient spadework, you are bound to get replies of this kind. This happens because of perceptual gaps.
I am surprised at the repeated usage of the phrase "inefficiency." In HR Management, the general terms used are "performance" or "under-performance." How come you have yet to come to terms with this difference that I could not comprehend?
The last thing I would like to tell you is that you need to take training on the "Concept of Communication." I do not mean the concept of communication as "communication skills." You may be good at the latter, but you need to develop the former, that is for sure. Through your series of posts on the same subject, you have left sufficient evidence of this deficiency.
Gentleman, when you raise some query, basic courtesy demands disclosure of your identity. You wanted to conceal your identity and yet you want people to peep into your brain, understand your thinking, and give replies.
We are not paid consultants here. Even if you were to expect this from some paid consultant, he also would have failed on this count. Therefore, it is appropriate for you to choose your words carefully and choose your forum also carefully.
Instead of getting nervy at Mr. Raj Kumar Hansdah's post, have some self-examination, gentleman.
All the best!
Dinesh V Divekar
From India, Bangalore
I was very clear to begin with in my first post. My first post:
I would like to understand whether inefficiency amounts to misconduct or termination of an inefficient employee can be under retrenchment. I am looking for case law which states that inefficiency amounts to misconduct and termination for inefficiency is/is not retrenchment. I have not found any specific regulation which defines inefficiency as misconduct. Even though, the section for retrenchment under the ID Act states "any reason whatsoever," I have found articles on the internet which state that termination for inefficiency is not retrenchment. However, these articles do not provide any supporting case law.
It clearly states that it's an exercise in understanding the process and the legal provision. Nowhere does it state that I want to fire anyone for being inefficient. The mere fact that I am on this website shows that my research did not yield the desired result, and I hoped that I would receive a professional response to my query, not a sermon on the ills of management. I use the term inefficiency because non-performance or any other term is not defined by the Supreme Court of India or any other court. They define it as inefficiency. Also, we are not here to debate my communication skills or lack thereof. If this were such a forum, I would be obligated to point out your shortcomings. I am aware that you or any other member on this website are not paid consultants, and if I had paid for the service and received the kind of response I have to a query, I would surely undertake legal action to have my money refunded. As far as my identity is concerned, I am in no way obligated to reveal my name/gender/nationality/profession, etc. Knowing my identity has no relation to responding to the query.
In conclusion, I have said this before, I do not require a personal opinion/sermon on the ills of management, just the legal picture. If you do not have an answer, do not reply. If you do reply with a personal opinion (not backed by case law), please be prepared for any censure.
As a post-script: before asking a person to "self-examine," I would suggest you do the same. All your replies are based on presumptions and are highly judgmental and sexist. What if I happen to be a woman.
From India, Gurgaon
I would like to understand whether inefficiency amounts to misconduct or termination of an inefficient employee can be under retrenchment. I am looking for case law which states that inefficiency amounts to misconduct and termination for inefficiency is/is not retrenchment. I have not found any specific regulation which defines inefficiency as misconduct. Even though, the section for retrenchment under the ID Act states "any reason whatsoever," I have found articles on the internet which state that termination for inefficiency is not retrenchment. However, these articles do not provide any supporting case law.
It clearly states that it's an exercise in understanding the process and the legal provision. Nowhere does it state that I want to fire anyone for being inefficient. The mere fact that I am on this website shows that my research did not yield the desired result, and I hoped that I would receive a professional response to my query, not a sermon on the ills of management. I use the term inefficiency because non-performance or any other term is not defined by the Supreme Court of India or any other court. They define it as inefficiency. Also, we are not here to debate my communication skills or lack thereof. If this were such a forum, I would be obligated to point out your shortcomings. I am aware that you or any other member on this website are not paid consultants, and if I had paid for the service and received the kind of response I have to a query, I would surely undertake legal action to have my money refunded. As far as my identity is concerned, I am in no way obligated to reveal my name/gender/nationality/profession, etc. Knowing my identity has no relation to responding to the query.
In conclusion, I have said this before, I do not require a personal opinion/sermon on the ills of management, just the legal picture. If you do not have an answer, do not reply. If you do reply with a personal opinion (not backed by case law), please be prepared for any censure.
As a post-script: before asking a person to "self-examine," I would suggest you do the same. All your replies are based on presumptions and are highly judgmental and sexist. What if I happen to be a woman.
From India, Gurgaon
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