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Thread Started by #Soo Teng

Hi all,
I would like to seek advices from you about India termination legislation of pregnant employee who is still on probation period and has employed less than 80 days.
The employee has joined the company for less than 80 days and has not been performing well since she joined. She is found pregnant recently. Could you please let me know the legislation in India whether the employer could:
- provide disciplinary action during this period;
- terminates ones contract when she is pregnant;
- terminate ones contract during probationary period and ones is pregnant;
- if yes, is there any severance pay required?
Appreciate your inputs soon.
Thank you.
ST
14th October 2008 From Singapore, Singapore
Hi,
If she is not performing well and she is into probation period then she can be terminated.
the procedure you can follow is; first you can issue an Show cause notice to her and give her some time (7 days) so that she can reply in writting the cause behind it.
If the cause justifies the situation then consider or otherwise after 7 days issue a termination letter.
14th October 2008 From India, Ambala
Hi Anjali, Thank you for the details information. Is employer requiring to pay 12 weeks of maternity leave pay and severance payment? Thank you. Regards, ST
14th October 2008 From Singapore, Singapore
Hi ST No the employer has no obligations as she is not a confirmed employee... and then to her performance in not satisfactory. Only 7 days show cause notice is sufficient in this case.
14th October 2008 From India, Ambala
dear
you have kept some one propabtion and her performance is not satifactory than you have to give him a chance to improve and you have to issaue letters to him for her weaknesses.
but in your case it seems you are not much worried about her performance but you are worried because she is pregnent and on this basis you can not terminate her services.very sad approach on Hr point of view.
tks
j s malik
14th October 2008 From India, Delhi
The maternity benefit act is saying" No women shall be entitled to MB unless she has actually worked in an establishment of the employer from whom she claims mb , for a period of not less than 80 days in the twelve months immediately preceding the date of her expected delivery"
In your case you have to see her expected delivery... if she works more than 80 days whether probation or temp you have to pay.....
Sankar
15th October 2008 From India, Madras
My personal opinion is that it is very unfair to terminate an employee because she is pregnant while on probation.
I was pregnant while I was on probation ( in one of my previous jobs) , however handled a whole HR department alone as the HR manager resigned during my probation.
However if someone is not performing well during the probation then termination may be a necessary
15th October 2008
Hi, Please advice... Is maternity benefit mandatary? Should all the company implement the M.B. in it’s policy? What if a company terminate a woman for she is pregnant? Regards, Divitha.
15th October 2008 From India, Bangalore
Hi

Always the employer would a ratify an agreement with the employee when he/ she join the company. And it is permissible by the law that an employee who is under probation can be terminated if the performance is not at all satisfactory.

And even in the probation period, if an employee requests for maternity leave (Maternity benefit Act 1961) the employer is bound to sanction it since it is the privilege of the employee. And the duration is six week before the delivery and six week after the delivery on the production of the medical certificates. Also the employer is liable to give three month salary at the time of maternity leave.

Severance Pay is not required, but the maternity benefit is mandatory.
Nothing prevents an employer from asking explanation from an erring resource or non performing resource. You can also mention in the show cause notice the time limit saying that if you do not revert in the stipulated time with a valid reason serious disciplinary actions will be initiated. If that resource does not revert in time you have every right to take immediate actions.

So now it is up to your discretion to decide whether to keep such an employee in your payroll or not.

If you have more doubts give me a call.
15th October 2008 From India, Madras
Hi ST
You cant terminate her unless there is strong reason.One more important thing to remember is she maynt accept the termination as she may be a top performer. You can only terminate her in only one way. i.e in case she doesnt come to office for 3-4 days without any prior information only then u have the rite to terminate her
Do let me know incase you require any inputs from my end
15th October 2008 From India, Hyderabad
Hi,
I recommend if you can put her under PIP for a month and closly moniter her performance then only you guys can take any action. Just a suggestion otherwise the employee can also back fire.
Thanks
Ankur Singh
15th October 2008 From India, Delhi
Thats is what this fraternity expects from members. This means the Solution with the reference of the law. correct response from you. Regards,
15th October 2008 From India, Pune
Dear Soo Teng,

You are mixing two issues together I guess.

Issue that may likely to fall under the Industrial Disputes Act, 1947.

Your contention is that, you recruited one female employee & kept her on probation. During her probationary period you found out that her performance is not upto the mark & she is not fit for your organisation.

Now you wish to terminate her services before she completes the probationary period.

Under the above circumstances you will have to check under what capacity she is employed. Whether she enjoys any protection under the Industrial Disputes Act, 1947 or not.

If she falls under the definition of Workman as per Section 2 (s) of the I.D. Act, 1947 she may raise an industrial dispute at later stage.

This will however not stop you from terminating her services provided you terminate her services by way of discharge simplicitor so that the termination will not amount to retrenchment. It will also not cast any stigma on employee. While terminating the services you will have to pay one months notice pay to the said employee.

The next issue is of Maternity Benefit Act, 1961.

If an employee draws salary/wages below than Rs.10,000/- p.m. & the area from where your company is operating is covered by the ESIC she will not be covered under the M.B. Act, 1961.

In my opinion even if she is covered under M.B. Act, 1961, it should not stop you from terminating her services by way of discharge simplicitor.

Regards

Manoj
15th October 2008
Dear All
Performance etc is no criteria,you will have to strictly follow the Naternity Benefit Act.Also see the Employee defenition inthe Act .It may be even construed as Sexual Harassment .
With Regards

V.Sounder Rajan

E-mail :rajanassociates@eth.net,


15th October 2008 From India, Bangalore
Hi,

I agree with Mr. Afsal Abdulkhani

but even in the Maternity act 1961 is not saying that the employee is who is performing / not performing well in the organization then the management has all the right to take the necessary action towards the Employee

But you must be very care full while terminating to any emmployee, i appreciate to go through your appointment letter whihc has been issued to the employee at the time of joining the organization just follow the same with every individual employee of the organization......

if your, appointment is not clearly specifying that about the termination part then need to focus a lot before terminating the such said employee.

Better first discuss with that particular employee, about her inhibiting factors and then see where it is going wrong then take the necessary precaution towards the said employee, because as you said that she is probation period and pregnant

as she working with your organization since 80 days, by this particular time framing you cannot judge any employee performance, she has to mingle with the company and the projects what you guys have assigned to her/him...

before taking any action on that particular employee have discussion with her senior and then take the necessary precaution.

even then after discussion want to terminate her then take the reports from her about her pregnancy and then decide as per your company policies says, if not frame the policy immediately then take the necessay action with her, and coming to paying towards the compensation she is not entitle for the MB as she is not applied for the maternity leave, in due course see that the said employee will not apply leave towards the maternity, if she applies then your Organization has no right to terminate her being showing the bad performance and hereafter entitle to pay the salary for about 12 weeks.

I appreciate if you have again doubt about the same, then feel free to get in touch with the said contact number of email address

With regards
Satya Penubothu
16th October 2008 From India, Hyderabad
Hi, See whether this can help you. Regards, Rupesh
16th October 2008 From India, Mumbai

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I think you need to rework on company's recruitment process. This is really bad part of you as an HR person to looking for terminating a pregenent women when she has just joined the organisation. This is not ethical practice. She should be helped and given a chance to improve. Turst me if she is physically unfit to perform well , she will leave by herself and if she is not sincere towards work then also she should be given a chance. There is no point of terminating an employee just because she is pregenent, no matter she is within probation or confirmed.

I would suggest you to talk to her personally to know about her current situation and future plans and ask her why she is not able to perform up to mark. That can help you to decide the right action for such situation. Behave like an HR professional rather than an departmental clerk and think broad ; you will be able to understand what is the right action to be taken for such situation. HR;s job is to retain people and train and motivate them for better work rather than terminating them for small reasons in hassle.
16th October 2008 From India, Dharamsala
Malik you are 100% correct...
I don't know why some HR people never understand human values...I f she is pregnant then your termination is going to bring a lot of mental pressure on her and it could badly effect the child.. think on it before taking action...
16th October 2008 From India, Mumbai
Its other thing how does this discussion help that employee / employer... (I just hope she will be treated in ethical manner);
But meanwhile I have learned a lot on Maternity Benefit Act. Thanks All for sharing your valuable knowledge..
Especial thanks to Rupesh for the notes :icon1:.
16th October 2008 From India, Ahmadabad
Services of an employee who is on probation, can be terminated by 24 hrs notice. Pl check the terms of her employment as per her appointment letter. if there is a clause that the services can be terminated by either party giving 24 hrs notice during probation.
Pregnancy has nothing to do with her performance during Probation period. Build record before terminating her services such issue warning letter , create file memos, advisory memos etc before termination. Clause of Maternity Benefit Act is applicable to employee who is on maternity leave.
If she is in bargainable category, pl take care of principles of natural justice. so that in case if she goes for litigattion, you will not have problems
16th October 2008 From India, Mumbai
Dear Ninad,
I agree to your point that pregnancy should not be an issue while terminating this employee.
However taking punitive action is very longdrawn process. One has to follow principal of natural justice, build a proper case against the employee & go through a painfull process of conducting enquiry & so on.At the end employee always says that, she is being victimised. This kind of cases to be handled very sensitively.
So in my view the method of discharge simplicitor is quite effective.
You need not to give any explanation or accuse an employee of non performance. Just issue a simple termination letter citing the clauses of appointment letter & give one months notice pay.
Employer has a right to recruit as also the right of termination.
Regards
Manoj
16th October 2008
before recruiting you can ask for medical certificate from the employee. If she is pregnant, you can decided whether to employ her or not because once she is issued appointment letter she is authorised for all the benifits.
Termination of a employee always require showcause notice or warning letter. Employee can be terminated even if he is issued with letter of confirmation, if he does not perform according to the guidlines.
regards
18th October 2008 From India, Ahmadabad
Pregnecy does not affect the intention of a good worker. if your intentions are to terminate this worker only due to her pregnency thats bad otherwise you can act as mentioned in the Certified Standing Orders of your factory.
Hope thats clear.
Singh
24th June 2009 From India, Ludhiana
I seen all comments but nobody told about the natural justice. It is ok that she did not complete 80 days in the organization. And she is not eligible for maternity payment but eligible for maternity leaves without pay.How can we ignore this thing? Obviously she is poor performer but fact is that she is pregnant now and you can not terminate her on natural justice ground she has the right to take leaves during this period (without pay) but employer has no right to take such actions which are totally against natural justice.
Regards,
Vijayender Chandel
12th October 2012 From India, Shahkot
Bad HR practice. Terminating someone because she is pregnant is discriminatory and I’m sure it would be illegal as well.
4th December 2012 From India, Delhi
I read all the comments, I m satisfied with Mr.Malik's comments whether employee is on probation period then it does not mean than she is not human being. We have to follow natural justice procedure with every employee, although maternity act does not apply on her due to her period of presence but she can get leaves without pay for such period on presenting medical certificates. So, give her some time, understand her situation by which every women suffers.
Regards,
Vijayender Chandel
17th December 2012 From India, Shahkot
Dear Friend

You have 2 issues at the same time, 1. About her performance 2. Pregnant . Both the issues are in different verticals so as a HR Person We Cannot go in with anything Which you have stated here .

provide disciplinary action during this period;

- terminates ones contract when she is pregnant;

- terminate ones contract during probationary period and ones is pregnant;

- if yes, is there any severance pay required?

What exactly We can do is just Showing our Humanity here no other GO.

1. Call her and find the problem with her performance ( because when we select a candidate we surely know that how they will performance) If really the problem is with the work then you can very well Talk to her directly about the resignation not termination .

2. You can tell her in positive sense that we are OK if you resign with in a week also , just take care of your health because health is more important then wealth . This gives the employee a great strength rather then go in Bad mood or disturbed situation which disturbs our business activity .

3. Get Every thing from her in clear paper written format ( Resignation Letter ) and Relive her accordingly .

4. Avoid Unnecessary issue while terminating unless and other wise it is mandatory by all means.



At every point we also consider labor laws, Human rights and so on..

This would be my choice always .,

Regards

MD
18th January 2013 From India, Chennai
We have written this to one of Finance Manager Please see below :

To: Ms Ibe. Annulika and Mr George Mushota.

CC: Human Resource, General Manager and CEO

Most recently complained that you were rude, belittling, and insulting each other at your front desks and in plain view. This was observed by other staff.

Within our own Finance Department, George Mushota complained that he was on the receiving end rude and unprofessional behaviour over the immediately stated him in office since last week of December. Since then, he has asked not to work with you or even be in your presence. Similarly, Ibe. Annulika has also asked that she not be assigned to work with you because of habitual rude and offensive behaviour.

Of great concern is your apparent failure to recognize or even admit that you people often overreact and lash out at each other’s. Employees are expected to work together as a team and expend whatever effort is necessary to provide quality service to the Premier Petroleum Limited as an organization. This is not to say that you cannot disagree with staff or other professionals. Rather, in addressing differences of opinions you cannot be combative, insulting, belittling, or rude. This only creates friction, diminishes morale and teamwork, and poorly reflects upon the Premier Petroleum Limited. You must show empathy, deal courteously with individuals, appreciate their differences, and handle emotions. When appropriate, you must show compassion for each other’s and recognize the contribution of each other as a team.

Equally important is that you need to listen to what others are saying.

In short, you both must agree to abide by the following principles by which you will conduct yourself in the workplace:

• You both will employ collective decision-making with your work’s and outside professionals and contacts to assure positive teamwork and maximize the goals of the Premier Petroleum Limited;

• You both will have respect for each other’s abilities, contributions, and values to the Premier Petroleum Limited;

• Ine Annulika will recognize that you can learn from your co-workers & Mr George Mushota.

• You both will deal with co-workers and others in a professional and courteous manner at all times.

• You will deal with conflict in a forthright and constructive manner and with tolerance for the differences of others.

1. In addition, I recognize that you may have certain ideas to improve your performance. Therefore, I encourage you to provide your own Personal Improvement Plan Input and Suggestions:

__________________________________________________ __________

__________________________________________________ __________

__________________________________________________ __________

__________________________________________________ __________

__________________________________ ________________________

Employee Signature Date



By

Mr George finance manager replied

To Human Resource office : Att of Madam Nafisa. Iam very surprised in the first place to observe that iam receiving mail with contets of this nature from your office because administratively the office ranking does not allow you to do so. Iam officially holding an office which is higher than your office and you can not under normal circumstances raise any disciplinery issues against me. Coming to the issues that you have raised, may i help you to understand that there is no pressure in accounts at all. the only issue that seem to be a problem is lack of appreciation by my surbordinate to understand the accounting World. She does not really understand what accounting is all about therefore she is finding it very dificult to understand and appreciate why we should do certain things in accounts. It is not possible for some one to perform functions of an accounting officer when he or she has no knowledge of the basic accounting fundermentals. Anulika does not understand accounts therefore, she is misplaced and hence the confusion. Suffice to metion that your office is responsible for creating this messy. Iam even thinking that you have deliberately chosen to give me an accounting officer who does not know accounts so that i fail to perform my duties effectively.I have supervised more than 100 members of statt at once before, and i have recorded better supervising results all the time. I do not believe that Anulika should become an impossible case for me to manage. She simply does not have accounts Knowledge and she is therefore denting my management style each time i instruct her to perform accounting functions in accordance to accounting starndards. Your office (H.R) has imposed Anulika to work in accounts department when you know very well that she does not posses accounting Knowledge. Therefore iam instructing your office to correct this irregularity as soon as possible so that i can begin to work normally and proffessionally.

I was also extremly shocked when Anulika metioned in presence of the Chief Executive Officer that she has authority to approve payments. This way of thinking is what has created most of the misunderstandings because she is misguided. If her job discription authorises her to approve payments, then your office should be blamed for duplicating responsibilities. Accounts only allows one prrson to approve payments at a time. It is the responsibility of the Chief Executive Officer to approve payments and he has delegated this responsibility to my office at the moment therefore we cannot share the same authority with my surbordinate which is deligated to me by my superior.

Iam also disppointed to observe that your office did not take time to study and understand the so called "pressure" in accounts department before writting to me. May I take this opportunity to correct your understanding that there is pressure in Finance department. There is no amount of pressure in accounts, the only difference that is creating this artificial pressure is the fact Anulika does not know accounts. you have just imposed her on me. Finally Iam requesting that Anolika be re allocated to onother office because apart from not knowing her job, she does not cooperate with me in any way, She does not respect me as an elderly person and does not take my instructions each time i talk to her. May Management considers to give me an alternative person who is well up dated with accounting Knwledge so that i can effectively perform my assigments without expiriencing un necessary disturbances.



Thanks. Mr George.

Please suggest reply to mr george.
23rd January 2013 From United Arab Emirates, Dubai
Firstly, it is clear from the Maternity Benefit Act that employee need 80 days working in the preceeding year or before expected date of delivery. And from above it seems that she has joined recently. In this regard following points are there for your information:

1. Firstly see the circumstances why she is under performer ? Don't make pregnancy period criteria for termination.Obviously you can terminate probationary after giving show cause but termination of preganant women during this period is against HR pracitices.

2. Although she is on probation period, you have to sanction leaves and these leaves will be without pay.

3. Give some time to her to show the performance because pregancy period is very critical period for any lady and termination may create mental pressure on the lady. So, as a human being understand her situation. And from HR point , why did you appoint her without taking medical fitness certificate (in terms of pregnancy/other disease etc.)

Regards,

Vijayender Chandel
28th January 2013 From India, Shahkot
power point presentation of the above case.please give your valuable feedback.
1st March 2013 From India, New Delhi

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Hello everyone,
My name is Bishan Singh, currently pursuing MBA, from Delhi.
May I help you mean if any company (Delhi based) wants to do the research on their company to find any flaws or want to do research on their employee's mainly internal customer.
i can assist them in the same. Our team consist of experienced faculties and young energetic student who can devote their time and knowledge in the research.
If anybody interested please allow us to do the same.
Thank you
With regards
Bishan Singh
Mobile no. 9899323833
attribution https://www.citehr.com/451856-may-i-...#ixzz2MhHZ5LPb
6th March 2013 From India, New Delhi
Hi,
There you should to wait till the probation peroid, , because of each every company evaluate the performance of employee till the probation period., but after the probation period she does not perform satisfactory , then you should to terminate her from the job...
and the issue of pregnency , that should also be consider, , if she wants to take a leave in this case, then leave should be grant, for some days,,
but after completion the leave, and probation period she does not perform welll & satisfactory, then after you should to terminate her...
mere khyal se is situation me as a employye aur as a personal dono dekhna hoga..
kyuki HR me as a employye aur as a personal dono dekhna jaruri hoga..
12th March 2013 From India, Delhi
Dear all Learned Friends,
I need your suggestion on Case related to pregnancy.
Confirmed Sales executive got performance increment in April 2014 & put in PIP in August'14 for one month when she applied for Maternity Leave.
Employer has put her on PIP when she was 7 month pregnant. She was mentally depressed so much that She delivered 7 month premature baby & doctor also mentioned in discharge certificate that she is suffering from depression & stress.
So is it legally viable to put a confirm employee on PIP because of fabricated non performance story?
Lady is working in MNC Surgical Company as sales executive for last 2 years.
Please suggest.
Regards
5th March 2015 From India, Mumbai
If due to her annual performance, she got increment in April 2014, what did targets were assigned after April, 2014. If not it is arbitrary to set new targets in August, 2014 after she applied for maternity leave. In fact it is in violation of section 4(2) and (3) of the MB Act. Though PIP can be challenged before the concerned authorities under the Act but firstly see what were her nature of duties mainly as to whether she can be covered under definition of workman of ID Act. If so then putting new PIP is also in violation of section 9A of ID Act. Take appropriate action under ID Act and Maternity Benefit Act.
Thanks
Sushil
5th March 2015 From India, New Delhi
In continuation of above viewpoint, I feel that the employee being a sales executive of a surgical company which may be said to fall in the category of pharmaceutical company and thus the provisions of Sales employees (conditions of service) Act, 1976 applies to her. She has to be treated as a workman and thus under section 38-B of the Bombay Shops and Establishment Act, the provisions of Industrial Employment Standing Orders are applicable to her. If that be so the only misconduct applicable is "habitual negligence or neglect of work". The proposed action of employer can never be said to fall under habitual category especially just after her giving maternity notice. Thus any proposed action of employer can be successfully challenged. Furthermore under section 9A of ID Act the employer could not have changed conditions of service by laying down new standards of job duties or targets. It also leads to unfair labour practice on the part of employer when it is acting against the above said provisions of MB Act.

Thanks

Sushil
6th March 2015 From India, New Delhi
Dont terminate her immediately , In your comapny Hr policy didi u mention about termination of preganancy in probation periood. But in performance wise u can check her. First call her & talk to her abt the performance and gice a chance to improve and tell to her if you not improve the management will take immedaite action against u. so chk her improvments and then u cantake nessesary action.
6th March 2015 From India, Madras
Act doesn’t say anywhere that if female employee is pregnant and not performing well means you can’t terminate her, but here you have to follow the company policy and whatever you do for such types of employees who is not performing well do it in that way. Here my suggestion is: Extend her probation period by 3 months Issue her a letter that she will be under observation for xyz days if she doesn’t show her good performance that company can take strict action on it. So that company would be in a safer side and make sure don’t take any action abruptly. Regards, Rupendra
6th March 2015 From India, New Delhi
Pregnancy shall not be taken as a blanket to cover an employee's non performance. It should not be taken as a protective device also. Though by virtue of section 12 of the Maternity Benefit Act, 1961, dismissal or discharge of woman during her absence in accordance with the provisions of the Act (that is during maternity leave days) is unlawful, the provisio to section 12(2) (a) says that dismissal or discharge during this period for any offence of gross misconduct is lawful. Here non performing employee shall be warned and punished as per the existing norms of the company. Pregnancy should not be taken as an armour to continue such misconduct (Non performance is in effect a misconduct) However, in such occasions, the usual practice is to keep mum so as to avoid so many queries and blame of having harassed pregnant woman employee. Regards, Madhu.T.K
6th March 2015 From India, Kannur
Hi, i am going through same phase. I asked for the department change so that i can show my performance is not under grade, but My department director is making such a case on me. But as he have to transfer me to other department he is not signing and attending the meeting related to this issue. He shows that he is having a lots of work load and is ill due to which he can't attend the meetings and no one can make a pressure on him bcz he is on high post. All HR and other department knows that he is harassing me, and even than they can't do any thing.
Now let me know what should i do???
4th December 2017 From United Kingdom, undefined
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