Many experts contributing their valuable suggestions about this, but to win the case proofs and documents are required.
Court give result on the basis of proof only and as said nothing is written.
as you mentioned above that you have given the verbal warning many times but nothing well response you got so long by this...
i have a question for you,
have issued the warning letter and termination letter.
the answer is no...
there is step for misconduct or indiscipline.
when an employee found in consecutive misconducting or even indiscipline who always stand apposite to the system, then first give him verbal clarification about their acts and deeds which has been unfavour for your company behalf of that errant employee.
and tell the errant employee if you do it again then indiscipline action may be taken against you and your service may be terminated.
if he show it again the misconducting then issue him the first warning letter, specify this guilty his course of action which is unacceptable by the company.
and also specify the outcome of that warning letter.
The management must have the receiving copy of that warning letter which you have issued to the errant employee.that warning latter must be duly signed by the employee.
if he again show indiscipline on work then issue him a final warning letter,
clear the reason for terminating him from the service....
take the receiving of warning letter.
and paste with his full and final settlement and no dues slip.
In that case , it is quite necessary to prepare the HR Policy..
as you mentioned in your appointment letter if the employee found in misconducting and indiscipline no notice pay will be given to employee... i think this is not solution, somehow it may little bit plus point for you.
but if you could take this action chronological in written form then it would have been better.
I am attaching the HR Policy which contains policy pertaining dismissal, indiscipline, misconduct, suspension etc....
Kindly go with that...
5. Disciplinary Policy
The Company Disciplinary Procedure will be used only when necessary and as a last resort. Where possible, informal and/or formal counselling or other good management practice will be used to resolve matters prior to any disciplinary action being taken. The procedure is intended to be positive rather than punitive but takes cognisance of the fact that sanctions may have to be applied in some circumstances.
An employee can discuss any part of this policy with their Line Manager. They can help clarify an employees rights as well as give guidance and support where it may be needed. Every individual has the right to representation at any point during the disciplinary process.
Suspension is not disciplinary action. The purpose of suspension is manifold and can be used when it is necessary to remove a member from the workplace pending an investigation for example, to allow time for a 'cooling down period' for both parties, for their own or others protection, to prevent them influencing or being influenced by others or to prevent possible interference with evidence. Only the Manager in charge of that individual, at that time or their superior, have the authority to suspend an individual.
An employee suspended from duty will receive written confirmation within three days of:
the reason for the suspension
the date and time from which the suspension will operate.
the timescale of the ongoing investigation.
Examples of Minor Misconduct
Below are listed examples of misconduct which may warrant either a Verbal Warning or a First Written Warning. It is stressed however that this list is not exhaustive and that on all occasions a full and proper investigation must take place prior to the issue of a warning.
Persistent lateness and poor time-keeping.
Absence from work, including going absent during work, without valid reason, notification or authorisation.
Smoking within unauthorised areas.
Failure to work in accordance with prescribed procedures.
Unreasonable standards of dress or personal hygiene.
Failure to observe Company regulations and procedures.
A Verbal Warning is appropriate when it is necessary for the manager in charge to take action against an employee for any minor failing or minor misconduct.
First Written Warning
A First Written Warning is appropriate when:
a verbal warning has not been heeded and the misconduct is either repeated or performance has not improved as previously agreed.
an offence is of a more serious nature for which a written warning is more appropriate.
the recurrence or accumulation of an offence/offences, if left, will lead to more severe disciplinary action.
Examples of Gross Misconduct
Listed below are examples of misconduct which may be considered to be Gross Misconduct and may warrant a Final Warning, Demotion or Dismissal. It is stressed however that this list is not exhaustive and that on all occasions a full and proper investigation must take place prior to the issuing of a Final Warning, Demotion or Dismissal.
Theft, including unauthorised possession of Company property.
Breaches of confidentiality, prejudicial to the interest of the Company,
Being unfit for duty because of the misuse/consumption of drugs or alcohol.
Refusal to carry out a management instruction which is within the individuals capabilities and which would be seen to be in the interests of the Company.
Breach of confidentiality / security procedures.
Physical assault, breach of the peace or verbal abuse.
False declaration of qualifications or professional registration.
Failure to observe Company rules, regulations or procedures.
Wilful damage of property at work.
Incompetence or failure to apply sound professional judgement.
Final Written Warning
A Final Written Warning is appropriate when:
an employee's offence is of a serious nature falling just short of one justifying dismissal.
an employee persists in the misconduct which previously warranted a lesser warning.
Dismissal is appropriate when
an employee's behaviour is considered to be Gross Misconduct.
an employees misconduct has persisted, exhausting all other lines of disciplinary procedure.
Letter of Warning
All Warnings must contain the following information
The letter must be issued within 7 days of the date of the disciplinary hearing.
The nature of the offence and where appropriate, that if further misconduct occurs, more severe disciplinary action will be taken.
The period of time given to the employee for improvement.
The employees right to appeal to the manager directly above that of the one issuing the warning.
A copy of the warning and any supporting documentation must be attached to the individuals personnel file.
The employee must also receive a copy of the warning which in the case of any written warning will be sent to their home address by recorded delivery if not handed to them in person.
In the case of a final written warning, reference must be made to the fact that any further misconduct will lead to dismissal, and that the employee has the right of appeal, and to who they can make that appeal.
The letter confirming dismissal will contain the following information:
The reason for dismissal and any administrative matter arising from the termination of their employment.
Cite.Co is a repository of information created by your industry peers and experienced seniors sharing their experience and insights.
Join Us and help by adding your inputs. Contributions From Other Members Follow Below...
Join Us and help by adding your inputs. Contributions From Other Members Follow Below...
I have gone through your mail and other members comments. Considering the facts of the case You should pay him Three monhts notice pay (if it is metioned in appoint ment letter (service conditons)).
Since management took decision not to dosclose the reason..you also did not follow the required procedure to deal with MISCONDUCT. Hence any claim that he was terminated on account of MISCONDUCT is not justified and it will go against the company in eyes of law.
The wise decision is to pay him the required notice pay and have a procedure in place to deal with MISCONDUCTS in the organizations for future cases.
99 98 97 10 65
As you have mentioned that you had sent him a letter which he didn't accepted and also your Pune COO has sent an mail to management on the same day about not acceptance of the said letter. So both these are proofs from your side and it proves that the concerned terminated employees was not following the processes.
Also the team who was working under him can be presented in court as proof of misconduct and misbehavior.
As you had said that you wanted him to terminate, so i hope you might have prepared a letter of termination with actual case. If you had prepared that original letter, than you can take that also as proof.
Do your letters have a reference number, i.e date and numbers for reference. if its there than your problem is solved.
If you want to teach such people a lesson than you can contact his current employer and inform them about the situation with relevant proof.
In my openion you are not Legally strong enough to fight back as u have not followed the proper procedure which is required in the case of miscoduct. Its blatent to mention the reason for someones termination. The person is smart enough that he pleaded to not disclose the reason in his termination letter n u did the same .
As Mr. Sajid said that u must have taken the appology in written as a proof, which was not done. so, as a matter of fact you need to pay him three months of salary as stated in the appointment letter.
As discuss above by Govind Singh Negi that
Not accepting letter itself is indisciplinary act. Even if he has not recevied the letter, HR could have sent the same at his correspondance address through AD registered post. Anyways, you can keep this in mind for future.
I am not aware about notice period mentioned in the appointment letter. If it is one month then employee has no right to ask for 3 months notice pay. But, if notice period mentioned in appointment letter is 3 months and company has paid him only one month salary then he an claim so.
is best suggestion in all post
So my dear try to understand this it is true that he is not covered under compensation Act
I can under stand this is serious misconduct and no notice pay applicable but you do not have any evidence against that employee,
Secondly if you issue legal letter and issue other legal formalities these can be denied by civil court due to absent of evidence. The employee can be refused to all these. So pay him three month notice and avoid future problem. Because the current legal formalities may considered as manipulation of company for interest of saving money of notice.
As my view,
He is conning fellow and he has fight against company at any end.
following thinks are not to do against him
1. you are not prepare any evidence against him
2. you dont issue any memo for his misconduct and misbehaviour.
3. you dont conduct ant domestic inquiry against him.
4. you dont collect any evidence/written letter for his junior.
so if you (MANAGEMENT) go for any court/conciliation he may be win for his speech.
as my suggestion, HR Person has talk to settle him (Negotiation) as his way this is better solution.
or the hr person has not strong to Emp Relation - Management has decided to go any legal consultant
Reply to his notice giving step by step the instances that took place which resulted in his termination. Also include you have due witnessess and proofs to prove his misconduct and misbehavior. This will put an end to his pursuing the case further.
In future, remember to follow the process and ensure every verbal warning is followed by a written communication, a copy of which should go into the personal file of the employee.
All the Best
I agree with your coo or and others coments who supporting for termination in the forum,but as being in Human resource dept keeping humanity in mind,as he is begging on his knees for not to mention the reason in the termination letter,you would have requested resignation and closed the matter,now you have invited that the employee to go court.why can't you understand that you would have to closed profile then & there,instead of doing unproductive work for such issues.moreover company will get anything from this,if that employee wins you have pay him notice period or you win you are wasting your time.
Keeping in mind do some productive work.management was right in this issue,close the file and new hire new one......thats all...