During the visit of Managing Director to the production unit, one of the employee being negligent at work has been dismissed immediately. So has a HR personnel what are formalities to be done under Factories act & Industrial Dispute act. What are the the issues arises for the company if the employee goes to the Labur court if compensation are not given
From India, Bangalore
10From India, Bangalore
Sub- Dismissal of an employee.
Dear Kiran
When an empoyee's services are terminated for bonafide reasons under standing orders/settlements/ service rules without any intention of punishing him, such terminations will fall under the category of termination simpliciter(simple terminations). Where an employee's services are terminated by way punishment allegedly for a misconduct, such terminations will be regarded punitive or stigmatic since the employee is dismissed for an allegation that casts stigma on his character and conduct without being heard.
While the Courts may not interfere with termination simpliciter of an emplyee, they may quash a dismissal if it was inflicted without hearing the employee concerned.
The principles of natural justice require that an employee shall not be punished for a misconduct without being heard about such misconduct. These principles are not incorporated either under Factories Act or the Industrial Disputes Act. A factory's standing orders (if applicable since they are applicable to factories employing 100 or more workmen) or service rules incorporate These principles are in the form of disciplinary procedure.In view of these principles of natural jsutice, the following basic procedure has to be followed before punishing an employee.
1) he should be served with a cahrge-sheet setting out the specific details of allegations agaisnt him.
2)he should be asked to explian his alleagtions.
3) if his explanation is not satis factory, you have to conduct a domestic enquiry into the cahrges where the employee will be given adequate opportunity to defend himself.
4) if he is found guilty in such domestice enquiry, an appropriate penalty be imposed on him.
Your company must have standing orders of it's own or conduct rules which prescribe such procedure.
In your case, the employee was dismmissed for negligence in his work which is an allegation against him . Therefore he was dismissed allegedly for a misconduct. Thus, you should have followed the above preocedure before dismissing him.
You can treat it as retrenchment either since such terminations will not be regarded as retrenchment as the definition of retrenchment under Sec. 2(oo) of the I.D Act excludes terminations by way of punishment from retrenchment.
If the employee is a workman within the meaning of the I.D Act, in all probability, he will raise an inductrial dispute about his dismissal, terming it unlawful.
B.Saikumar
HR & Labour Law Consultant
Chipinbiz Consultancy Pvt.Ltd
Mumbai
From India, Mumbai
Dear Kiran
When an empoyee's services are terminated for bonafide reasons under standing orders/settlements/ service rules without any intention of punishing him, such terminations will fall under the category of termination simpliciter(simple terminations). Where an employee's services are terminated by way punishment allegedly for a misconduct, such terminations will be regarded punitive or stigmatic since the employee is dismissed for an allegation that casts stigma on his character and conduct without being heard.
While the Courts may not interfere with termination simpliciter of an emplyee, they may quash a dismissal if it was inflicted without hearing the employee concerned.
The principles of natural justice require that an employee shall not be punished for a misconduct without being heard about such misconduct. These principles are not incorporated either under Factories Act or the Industrial Disputes Act. A factory's standing orders (if applicable since they are applicable to factories employing 100 or more workmen) or service rules incorporate These principles are in the form of disciplinary procedure.In view of these principles of natural jsutice, the following basic procedure has to be followed before punishing an employee.
1) he should be served with a cahrge-sheet setting out the specific details of allegations agaisnt him.
2)he should be asked to explian his alleagtions.
3) if his explanation is not satis factory, you have to conduct a domestic enquiry into the cahrges where the employee will be given adequate opportunity to defend himself.
4) if he is found guilty in such domestice enquiry, an appropriate penalty be imposed on him.
Your company must have standing orders of it's own or conduct rules which prescribe such procedure.
In your case, the employee was dismmissed for negligence in his work which is an allegation against him . Therefore he was dismissed allegedly for a misconduct. Thus, you should have followed the above preocedure before dismissing him.
You can treat it as retrenchment either since such terminations will not be regarded as retrenchment as the definition of retrenchment under Sec. 2(oo) of the I.D Act excludes terminations by way of punishment from retrenchment.
If the employee is a workman within the meaning of the I.D Act, in all probability, he will raise an inductrial dispute about his dismissal, terming it unlawful.
B.Saikumar
HR & Labour Law Consultant
Chipinbiz Consultancy Pvt.Ltd
Mumbai
From India, Mumbai
Dear Kiran
For termination cases also you must pay the Notice Pay, Retrenchment Compensation, Leave pay encashment and Gratuity (if eligible).
Please complete all the procedures as mentioned by Mr. Saikumar. Please keep on your procedures being recorded and reduced in writing, so that these all will help you in case the terminated employee approach the court of law.
From India, Kumbakonam
For termination cases also you must pay the Notice Pay, Retrenchment Compensation, Leave pay encashment and Gratuity (if eligible).
Please complete all the procedures as mentioned by Mr. Saikumar. Please keep on your procedures being recorded and reduced in writing, so that these all will help you in case the terminated employee approach the court of law.
From India, Kumbakonam
Also you have to pay him suspension allowance as per sec 10 Standing Order Act, till the date of domestic inqury is completed if he is unemployed for the said period, if u do not conduct Inquiries and if the workers go to labour court then 99% the court will give order in his favour of reinstatment of the workmen as he was not given a chance to be defend, as the question of retrenchment does not arises , while following retrenchment you have to follow the seniority levels and rightly said by Mr. Saikumar as per 2 (oo) of ID act it does not include Disciplinary Action.
Now just issue him a charge sheet stating the misconduct and also suspension until the domestic inqury is conducted
Regards,
Prashant Mhatre
From India, Mumbai
Now just issue him a charge sheet stating the misconduct and also suspension until the domestic inqury is conducted
Regards,
Prashant Mhatre
From India, Mumbai
- If already dismissed from service, no necessity for conducting enquiry. Settle the dismissed employees dues (unpaid salary, leave encashment) immediately and not later than 2 day of order of dismissal.
- In order to combat the case in the court, preserve necessary documents relating to his negligence leading to dismissal.
From India, Tiruchchirappalli
- In order to combat the case in the court, preserve necessary documents relating to his negligence leading to dismissal.
From India, Tiruchchirappalli
Sub-compensation for dismissed employee.
In my reply there is a typing error in the sentence in the fifth para of my reply that relates to retrenchment.The legal position is that dismissal by way of punishment for a miconduct without enquiry cannot be regarded as retrenchment also since Sec.2(oo) of the Industrial Disputes Act excludes such termination by way of dismissal from the scope of retrenchment.
B.Saikumar
From India, Mumbai
In my reply there is a typing error in the sentence in the fifth para of my reply that relates to retrenchment.The legal position is that dismissal by way of punishment for a miconduct without enquiry cannot be regarded as retrenchment also since Sec.2(oo) of the Industrial Disputes Act excludes such termination by way of dismissal from the scope of retrenchment.
B.Saikumar
From India, Mumbai
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