Dear Seniors , Need your guidance on below. We have an employee who misbehaved this morning. I have given several warning, his HOD has also spoken with him regarding his behavior but we did not find any improvement now management wants to terminate him on immediate effect. Please advise could we do the same or there could be any legal issue after termination
From India, New Delhi
2From India, New Delhi
Dear Archi,
Most probably, the delinquent must be an employee falling under the category of workman u/s 2(s) of the Industrial Disputes Act,1947. If so, instantaneous termination of his services without following the principles of natural justice would be illegal and later set aside in Judicial Scrutiny.
Therefore, pending enquiry place him under suspension forth with, frame specific charges of misconduct under the service regulations, conduct a domestic enquiry giving him reasonable opportunity to defend himself and upon receipt of enquiry officer's findings, issue a second show cause notice about the proposed punishment of dismissal and then dismiss him.
Looks cumbersome? yes; but you have to do such things..
From India, Salem
Most probably, the delinquent must be an employee falling under the category of workman u/s 2(s) of the Industrial Disputes Act,1947. If so, instantaneous termination of his services without following the principles of natural justice would be illegal and later set aside in Judicial Scrutiny.
Therefore, pending enquiry place him under suspension forth with, frame specific charges of misconduct under the service regulations, conduct a domestic enquiry giving him reasonable opportunity to defend himself and upon receipt of enquiry officer's findings, issue a second show cause notice about the proposed punishment of dismissal and then dismiss him.
Looks cumbersome? yes; but you have to do such things..
From India, Salem
Dear Archi,
The enquiry officer can be any one - i.e., some one from within the organization belonging to superior cadre and not connected with the episode of the misconduct alleged or an outsider like an advocate or any other person well-versed in enquiry matters.
You cannot engage the services of an official of the labor department who is in service.
From India, Salem
The enquiry officer can be any one - i.e., some one from within the organization belonging to superior cadre and not connected with the episode of the misconduct alleged or an outsider like an advocate or any other person well-versed in enquiry matters.
You cannot engage the services of an official of the labor department who is in service.
From India, Salem
Dear Archi,
You can terminate by paying the notice pay as per terms of the appointment without showing the cause as misconduct rather exhaust of position or some other issues best suit. Also do not fill the vacancy emerged out of termination for some period.
From India, Mumbai
You can terminate by paying the notice pay as per terms of the appointment without showing the cause as misconduct rather exhaust of position or some other issues best suit. Also do not fill the vacancy emerged out of termination for some period.
From India, Mumbai
How long the delinquent employee has been working in your company?
As Umakanthan sir suggested, it would be better to follow the procedure, so as to ensure your company, to be free from any encumbrances.
EO (enquiry officer) shall, ideally be a registered legal practitioner. The Presiding Officer, and
the MR (Management representative) can be any two managerial personnel. Similarly delinquent workman can be accompanied by a co-workman, throughout the enquiry proceedings.
If the delinquent is a probationer employee, you can give one month's extra salary
and terminate him, as suggested by Mr. Prabhat Ranjan. If he is a confirmed permanent
employee, please follow the procedure, as stated by our learned senior member Mr. Umakanthan.
From India, Aizawl
As Umakanthan sir suggested, it would be better to follow the procedure, so as to ensure your company, to be free from any encumbrances.
EO (enquiry officer) shall, ideally be a registered legal practitioner. The Presiding Officer, and
the MR (Management representative) can be any two managerial personnel. Similarly delinquent workman can be accompanied by a co-workman, throughout the enquiry proceedings.
If the delinquent is a probationer employee, you can give one month's extra salary
and terminate him, as suggested by Mr. Prabhat Ranjan. If he is a confirmed permanent
employee, please follow the procedure, as stated by our learned senior member Mr. Umakanthan.
From India, Aizawl
Dear Mr.Prabhat Ranjan,
I am afraid whether your suggestion, if acted upon and contested by the employee, would stand judicial scrutiny. What you have suggested must be either discharge simpliciter as per the contract of employment or retrenchment u/s 2(oo) of the ID Act,1947. In any case, the employer would have to pay retrenchment compensation for the completed years of service rendered by the employee. In case of retrenchment, he should be the junior most and in the case of the employees strength being 100 or above, prior permission is to be obtained from the appropriate Government.
From India, Salem
I am afraid whether your suggestion, if acted upon and contested by the employee, would stand judicial scrutiny. What you have suggested must be either discharge simpliciter as per the contract of employment or retrenchment u/s 2(oo) of the ID Act,1947. In any case, the employer would have to pay retrenchment compensation for the completed years of service rendered by the employee. In case of retrenchment, he should be the junior most and in the case of the employees strength being 100 or above, prior permission is to be obtained from the appropriate Government.
From India, Salem
Dear Umakanthanji,
What was suggested, was on ground of terms and conditions i.e. either party can dispense by serving notice or pay in lieu of that. One has to follow the procedure, where termination is due to misconduct.
From India, Mumbai
What was suggested, was on ground of terms and conditions i.e. either party can dispense by serving notice or pay in lieu of that. One has to follow the procedure, where termination is due to misconduct.
From India, Mumbai
Dear Archi,
The advice given by Mr Umakanhan is perfectly legal and it is to be followed ordinarily prior to imposing serious action of termination.
However , if you want instant termination there is one more way but not very foolproof. If you have all cinching documentary evidence of his misconducts, his past misconducts and warning letters on record which are capable of proving you have given him adequate opportunities to improve, then you can prepare a file note containing chronological events/ history of his misconducts and actions taken from time to time . This is very crucial documentation which will form the basis of termination and has to be prepared in consultation with expert in labour laws.
After this note issue him termination letter in terms of the appointment letter with immediate effect by paying him notice pay and all legal dues immediately. Please add in the termination letter that should the termination is challenged in the court, you will justify it with all the evidence in support of the same.
Let me repeat, this step is to be followed only if you are confident that you have all requisite evidence to justify termination as certified by the labour expert , as and when this gets challenged in the court of law later.
I generally do not advise bypassing well laid down legal procedure which I fully respect, but if you are confident and are willing to take risk, you may proceed on this lines in consultation with the lawyer.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
The advice given by Mr Umakanhan is perfectly legal and it is to be followed ordinarily prior to imposing serious action of termination.
However , if you want instant termination there is one more way but not very foolproof. If you have all cinching documentary evidence of his misconducts, his past misconducts and warning letters on record which are capable of proving you have given him adequate opportunities to improve, then you can prepare a file note containing chronological events/ history of his misconducts and actions taken from time to time . This is very crucial documentation which will form the basis of termination and has to be prepared in consultation with expert in labour laws.
After this note issue him termination letter in terms of the appointment letter with immediate effect by paying him notice pay and all legal dues immediately. Please add in the termination letter that should the termination is challenged in the court, you will justify it with all the evidence in support of the same.
Let me repeat, this step is to be followed only if you are confident that you have all requisite evidence to justify termination as certified by the labour expert , as and when this gets challenged in the court of law later.
I generally do not advise bypassing well laid down legal procedure which I fully respect, but if you are confident and are willing to take risk, you may proceed on this lines in consultation with the lawyer.
Regards,
Vinayak Nagarkar
HR and Employee Relations Consultant
From India, Mumbai
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Notice of Employee Change.doc