V.Raghunathan
Process Industry Consultant / Soft Skill
Tsivasankaran
Consultant
B K BHATIA
Director Of Company
Kknair
Hr, Ir, Law, Disc. Matters
SAIBHAKTA
Retired From Air India
V. Balaji
Ir & Hr
Rakesh Pd Srivastav
Chief Manager - Hr (plant Head Hr)
Harshal16
Junior Manager (hr)
+1 Other

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B]Dear HR Fraternity
We have a case in hand, wherein, a worker had used most filthy and foul language against a senior Manager in the shop floor. He was immediately kept under Suspension (pending Inquiry). An inquiry was conducted and was proved guilty. Now question is can an employee be dismissed from service for this misconduct and will it be harsh or disproportionate to his misconduct. Is there any case laws to support the decision of the Management.
S.MANOHAR

Dear Mr. Manohar,
It has been decided in the various cases by court that using abusive language against any superior is a serious misconduct that leads to the dismissal of employee. The only precaution which has to be taken is it should be through proper domestic inquiry in accordance with the procedure of natural justice also if your organization has the certified standing orders such misconduct must be mentioned there.
Regards,
Padamnave Parashar
Manager IR

Thank You Parashar
I have also seen certain SC rulings that an employee who has used foul and filthy language cannot be considered as a minor misconduct for lesser punishment. Now, the issue is the employee has realized his misconduct and is applying pressure through Union for pardoning him and to give a chance, whereas Management is very firm that if this type of misconduct cannot be taken lightly and it may give a wrong lead to other workers that they can behave in any manner and Management would not take it seriously. Therefore, the Management is absolutely right and the decision will be enforced. The question is he claims that only on instigation of the officer he used such language. Will the decision of the Management stand before conciliation in case he raises a dispute under sec 2a of ID Act.
S.MANOHAR

Dear Mr. Manohar,
As far as legality is concerned the management is right and on merit. Giving light on the circumstances if management willing to forgive the employee it should be expressed to all employees as a caring step of the management not a result of pressure tactic.
Regards,
Padamnave

It depends on his earlier conduct and criticality to your organisation.
We had a similar case happening during a very sensitive period. After reading the enquiry report but before proceeding to the courts, employee himself offered to resign and collect all dues. There was history with this worker, so we thought it was good riddance of bad rubbish.

Dear Mr. Manohar,
Found a link on gross misconduct which contains FAQs on the same.Please go through this, in case it helps you.
Gross misconduct: 16 FAQs | Law Donut <link updated to site home>

There court decisions upholding the punishment of dimissal for such disorderly and indecent behaviour. however, you need to ensure that such behaviour falls within the purview of the acts of miscondcut specified under your disciplinary rules and dismissal is also one of ethpenalties enumerated under the rules/standing orders of teh company.So far as commuting the penalty is concerned, it depends up on the following factors-
1)His past condcut is unblemished and this is the first instance.
2) His behaviour wasnot intentional but due to provocation from the manager
3) He is a critical resource etc.
4) he can be reloacted
5) suspension itself serves as enough punitive to dter him from such behaviour infucture.
B.Saikumar
Mumbai.

Dear Manohar et al, The question as to whether the Management would be able to justify itself before the Conciliation Officer need not deter you from taking strong action in the matter. As you have seen the earlier days of leniency is no longer prevailing in the courts and there is a realisation that if the activities have to continue then discipline is a must. There cannot be much of meaning activity if every one is allowed to utter obsenities and abuses against each other and a situation of anarchy would remain. Hence you have a sufficient case to impose the penalty of dismissal from service. Regards. KK
Procedural Issues
1. Have you issued second show cause notice informing the proposed punishment? This is required more so in case of dismissals. I suggest even if your Standing Order is silent about second shou cause notice, you should follow this procedure.
2. If the employee is dismissed, then he can directly approach the Labour Court and need not go through conciliateion. If he goes for conciliation under 2 A, the conciliation officer need to refer the matter for adjudication and can not reject reference based on enquiry proceedings.
Practical issues:
1. Has he been always behaving like this? Any previous incidnets?
2. What provoked him and has he taken this plea before enquiry officer?
3. Has it been proved that there was provocation? If there had been any iota of doubt about provocation in the mind of the Enquqiry officer, then dismiisal will not stand before the Labour Court. Capital Punishment is not awarded where there had been provocation.
T Sivasankaran

Dear Manohar & Friends,

1. The issue at hand is not just disciplinary but also one of it's effect on productivity & business through employee morale. Thus the following guidelines could generally draw the course of action:-

>Factors To Assess The Crime & Establish Reasons For This Symptomatic Behavior Of

An One Off Incident Or An First Indication Of An Existing Larger Malaise:-

(a). Has this been the first instance of the individual's behavior & what level was his earlier behavior.

(b). What were the circumstance and provocations that led to it,

(i). Immediate at the work site.

(ii).In time & space at work.

(iii).In his personal life.

(c). Interpersonal behavior of the employee with other employees and a union if any.

(d). Employees indispensability to the process / enterprise.

(e).General prevailing emotional environment on the shop floor/ office/ work place and among the employees.

(f).Direct/ indirect factors that may have created the emotional environs mentioned above and the managements role in its creation.

>Process Of Removal If Assessment IF The Individual Is Useless To The Mgt & Shop/Office/Process Floor & Removal Will Serve A Larger Purpose:-

(a). Institute an impartial inquiry with members and witnesses from all levels of the concerned department to check all of the above factors & establish the origin of the misconduct by the employee as that of an deliberate misconduct / generally uncontrolled emotional behavior / unrepentant first time irrational behavior causing irrecoverable loss greater than the individual can pay back / bad influence to the progress of the company /etc on these lines (Generally these exist in the SOPs of every organisation).

(b). Give the individual a show cause notice within a stipulated period and place him under suspension if required and under company policy to which he should have signed abidance at the time of enrollment.

(c).On receipt of his reply, assess it in light of the assessing factors and decide if it is sufficient or not.

(d).Record / 'Minute' the result of the assessment / decision.

(e) Recommend action / approve it from the hierarchy & legal dept if any and if required.

(f). Inform him of the inadequacy of his explanation.

(g).Hand him the termination orders based on the all of the above.

2. Thus you would have covered all procedural and legal aspects logically sans emotion.

Regards,

Dilip


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