Madhu.T.K
Industrial Relations And Labour Laws
Unusual_indu
Hr -generalist,(web Development Company),recruitment,performance
K.Ravi
Loading.......
Anurag Jain
Hr Manager
Shish
Consultant
Swati.jain0104
Executive - Hr
Parthasarathy
Hr Executive
Hrssonepat
Service
Arjun_5575
Training & Development
+2 Others

Thread Started by #tittli

Dear Friends,

One of my colleagues' wife works in a private sector concern in the software department, which she joined 6 mths ago. Her confirmation was due this month.

Till this period there were no issues for the management regarding her work. Even her appraisals which took place in Sept. was quite good and her reporting officer herself personally told this lady that the performance is quite satisfactory and she has a lot of potential to grow further in the organization.

However, 2 months back she informed her reporting manager that she was pregnant because she already had undergone a miscarriage earlier and the doctor had advised her to be very careful this time and not over burden herself. The manager did not seem to have any issues with it since the last 2 months.

However just on the date of her conifrmation the management seems to give all silly reasons as to why they cannot confirm her and why she should leave the company.

The same management who did not have any problems with her work or attitude during her probation suddenly seems to have issues during her confirmation. Now they feel that since work load in the dept. is not much, the responsiblity can be handled by the existing employees in the department.

Then they state that the higher ups were against the idea of creating this position but they were forced to bow to the wishes of the then manager who left the company subsequently. Then when they realised that these allegations/reasons don't hold any water they have broached the subject of her leaves. She has 20 leaves to her credit during her probation period but as per co. policy, an employee is entitled to only 2 leaves every month the rest are encashable. She has taken 8 leaves so far. If leave was an issue; it should have been broached during appraisal. Probationers at managerial level have taken as much as 22 leaves but they have been confirmed this month.

I have the following questions:-

1) Can a company ask a lady to resign if they are notified that she is pregnant and her date of delivery is after 6 months.

2 ) The management does not state the reason of maternity leave clearly but is now accusing the employee of non satisfactory work. If this was the issue, this could have been broached during appraisal or any time during the probation period why wait till the confirmation date?

3 ) There is no use talking to the mgt. as it is a highly centralized set up and the decision of 1 man rules.

4) She is not in a position to search for a new job right now as no co. will be willing to employ any one who will go for maternity leave in 6 months. She cannot sit at home because of financial compulsions. These tensions are having an adverse effect on her health also.

What should this lady do under these circumstances. Is there no law to take such mgt. under the scanner for gender discrimination? Please advise as this issue needs to be addressed urgently.
11th December 2008 From India, Bharuch
Please friends this is urgent b’coz the organization might not give her much time to react and might ask her to leave. Please comment.
11th December 2008 From India, Bharuch
Hi Tittli,
1. the answer 4 ur 1st question is "A BIG NO".
2. I dont think that there is a law to take such mgt. under the scanner
for gender discrimination? If she is a confirmed staff we can try
something. How is the comnpanys financial position (is it a reputed
co.).

My suggestions to ur friend, please tell her not to get worried during this stage, all that happens will end well. py prayers to god would be their.

Regards,
Arjun
12th December 2008 From India, Madras
Dear Arjun,
Thanx for ur reply. The company is a medium scale software firm and u know the effects of recession. I have mentioned that she has been dragged into this issue only during her confirmation. So is there no way to get out of this?
12th December 2008 From India, Bharuch
It is illegal to terminate service of a woman employee just on the ground of her pregnancy and without having any reason to show any gross misconduct on her part. Therefore, it is advised not to resign from service. If there is compulsion from the Management, there are machinery to settle the matter. She can approach the District Labour Office for intervention. She can also approach Office of Woman's Rights Commission or the related bodies for mental harassment at work place.
Regards,
Madhu.T.K
12th December 2008 From India, Kannur
hi tittli,
ask her to give a try to console the mgmt. at later stage as a last attempt she can make use of maternity benefit act through the local labour officers.
ask her to notify the maternity benefit act regulations to her boss casually.
C Madan
12th December 2008 From India, New Delhi
HI Titli

The situation that you have described is no doubt delicate but believe me it happens with women very often these days. The lady you are talking about is not a confirmed employee and that makes it even more difficult for her to fight the battle. I agree to Mr Madhu that it is illegal for any organisation to terminate an employee based on the ground that she is pregnant but here the management can cite 100 other reasons for not confirming her and they are never going to talk about the issue of preganancy.

She has got little or no choice in this situation.Moreover if the top management is also involved in this game then they will make her stay difficult in the organisation. Considering that she is preganat and already had a miscarriage before, she should be extremely cautious about her health right now(suggestion as a woman not as an HR) and just take this incident as a lesson in her life and just let go.

In simple words I am asking her to put her weapons down but I feel it will be beneficial considering a greater cause

I hope this makes sense to you
12th December 2008 From India, Pune
Hai Titil, Madhu T.T Is giving right sugestion,I think u go to ur local Labour office and loged a complain against that MGT. Best Regards, Rajendra Kuamr Sahoo(rajendra_33377)
12th December 2008 From India, New Delhi
Dear Friends,

Thanks for ur comments. The situation is exactly as Indrani put it. The managment does not broach the topic of preganancy/ maternity leave etc. They are citing all other reasons that I have mentioned in my original mail ie.

1) Non satisfactory performance on the day of confirmation after giving good ratings in PA just 1 month back.

2) Lack of work in the dept. even though the dept. boss also knows that at present even the other people in the dept. as well as other depts. have little work

3) A vacancy that was created without giving it much thought.

......................And any other reasons that they can fathom.

Under this circumstances, it seems that the lady has made a mistake by revealing her situation to her superiors but she was forced to because of stressful physical working conditions in the dept. 2 months back

So it seems that the lady can only keep quite about it and let mgt. have their way because she is not confirmed? Taking legal recourse as MR.. Madhu suggested also will consume a lot of time and she fears that her chances of employment with other firms will also be affected if the new employer becomes aware of this case.

So is only keeping silent & bearing it the only option?
12th December 2008 From India, Bharuch
Hi,
I completely agree with Mr Madhu. If the female employee has complete 80 days of service with the employer; she can avail the maternity leaves as per law. It is immaterial wheather she is in probation period or not. She can approach to the Labour Commissioner and employer have to sanction the paid leaves for 12 weeks and if she produces a medical certificate, after the delivery, from the doctor for addition leaves then additional leaves shall also be sanctioned as the paid leaves by the employer.
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12th December 2008 From India, Jaipur

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File Type: ppt The_Maternity_Benefit_Act__1961.ppt (36.0 KB, 739 views)
File Type: doc Right to payment of maternity benefits.doc (29.0 KB, 878 views)

well its all dirty politics sometimes HR plays and sometimes they become victims, when they play they get pleasure in seeing others cry and when they themselves cry, all pour their sympathies...and stake as if they havent hurt a flea in their life,,,

your friend already suffered miscarriage and doctor advised her to be careful,, so if she follows advice of tk.madhu,, and runs in those labour courts with her case one thing management will further get angry on her, and even if she wins case how can u work in an environment where all management is hell bent against u,, mentally u cant work thats human nature,,, and even if she takes tension in this case there is warning given by her doctor... so better remain quiet...
12th December 2008 From India, Pune
All we can suggest about the duties/rights. This is upto the victim, in what manner she would move ahead in the circumstances. Let her decide. May be despite her right of getting paid leaves; may leave the organization without any objection. Or she may show the route of court to the company. Our discussion is to make her aware about her legal rights. Of course and certainly; the decision of what step and the mannerism to deal with the situation exclusively depends upon her and whatever may be the implementation aspect; it should be firm and forward looking in any case. We will see the results if she takes the proper steps and if required help may be extended.
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12th December 2008 From India, Jaipur
I go with Anurag, that the final decision maker is the victim. She has to consider her health before taking any decision and have to look for a smooth route. As management wants her to letgo on performance basis, and not on the reason of being pregnent she has to bow her head down though she has a right to fight back.As said by our friends management can show n number of reasons to prove that problem is with her performance, it is not advisable to fight back unless she has a right proof.
I advice her to review all the openions posted by our friends before making a decision.
Regards
13th December 2008 From India, Hyderabad
Considering the fact that only she has every thing to loose and nothing to gain in the whole process,as the opinions suggest, I think she should not throw in the towel. But instead of she entering the fray, let us help this colleague through any local NGO for approaching National Women's Commission and the concerned labour authorities on her behalf. If we all pull together I see a ray of hope. Otherwise the Management will get away with murder and will not learn any lesson in the process. I think the intervention of Women Commission is going to help, their issuance of notice itself will scare the management. The management is again likely to come up with the plea of non-satisfactory service but given the other facts, the position becomes obvious that this is only a ruse to somehow get rid of her. The provisions of Maternity Benefit Act can also come to the aid.
I request all HR professionals to look for an NGO to take up this matter. Regards KK Nair
13th December 2008
Titti,1) Market down2) Meternity leave is applicable only 12 weeks.3) She has to apply leave on before two months of delivery,4) Management financial issue & Politics.Thease are the mager issue could have happen this case.Thanks & RegardsParthasarathy
13th December 2008 From India, Madras
As other members has suggested that since the company is trying to take resignation from her on the basis of non performance, hence it will be difficult for the lady to prove that the management of doing all this because of her pregnancy. Hence she should concentrate on her work and do it with perfection (which I know is difficult in this situation considering the mental trauma she is going through) so that management does not have any basis to prove her non performance.
God will take care of the rest.
Swati
13th December 2008 From India, Bangalore
The managment is not willing to give her any time. It wants to make her resign and leave as soon as possible.
Are Labour courts fast track? I mean is decision given fast or does it drag like the rest of the legal proceedings.
What can a Woman's Rights Organization do to help her in this case even if she approaches them? How can she prove that it is based on the maternity reasons rather than performance that the management is accusing her of now after her good appraisals just a month back; as the managment does not explicitly state this as the reason but has been mentally disturbing her now?
13th December 2008 From India, Bharuch
The opinion of K Ravi is right, I agree, it is not that I have not considered the negative impact of approaching government authorities. But, if you leave the organisation accepting the 'charges' will lead the employers to take similar action against others also. If this is the case, there could be no young women employed in private sector. If the new maternity policy applicable to government employees which allows 6 months maternity leave is made applicable to private sector also, will there be employment of women? Or will they appoint only unmarried women and will their service be terminated after marriage (some months in advance so that there will not be any interpretation of termination due to pregnancy!)

It is not right culture that in order to take care of customers an employer needs woman employee and so long as she does not ask for any benefits, her appraisal is very good but once she declares that she is pregnant, she becomes an excess employee with poor performance. The advocates of HRD ( I believe in Personnel Management concept and I call myself as an employee and not a 'Professional" as is referred to as under the new system) should realise one thing. Human Resources should be developed and it is for finding out the possibilities of utilising the resorces in each human being employed that the HRD is set up. If one employee is not fit for one job, give her another and use her resource. If she is not fit for any job, it is a shame to HRD itself which selected her!

Regards,

Madhu.T.K
13th December 2008 From India, Kannur
Deal all,
Mr.Madhu has given the complete picture of the case and suggestion, and other HR expert have the view to leave the Company without going to Labour Office. If you do not want to include the experience of this Company in your profile then go ahead with legal option.
with regards,
shish Uniyal
Executive HR
J.S.FURNISHINGS LTD.
13th December 2008 From India, New Delhi
During probation period, services can be terminated without assigining any reason. This service term is clearly mentioned in appointment letter of new recruit.It cannot be challenged.
However, in your case, it looks that management doest not want to accord long leave so that office work does not suffer and are trying get her off and take her replacement. I don't think any persuation to management will lead to her confirmation. It is the organization behaviour that has reflected in your case. It is better to look for another job after delivery.
Regards
13th December 2008 From India, Mumbai
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