A female employee in my company has taken 66 leaves well above the annual leave quota as well as not been performing well last time she took 8 days leave without intimating anyone when she reported she claimed medical reasons. Are the employers having a justified grounds for terminating? intimated she is 3 months pregnant can this lead to complications if the employers decide to terminate her , will they any legal/statutory violations
From India, Mumbai
Seasoned Ir Professional
+2 Others

Sharmila Das

Dear Ms. Priyanka.6986,

Thus proposing your first point "Are the employers having a justified grounds for terminating?" -- A company probably won't terminate any employee due to excessive absenteeism for illness if you have a legitimate medical condition. Understand that employers need to be a li'l careful on the grounds of terminating their employers (especially, females) may count on to discrimination. Before you consider any certitude you may like to do a thorough investigation on why these many leaves has been taken and [NO INTIMATION] is certainly employees mere negligence to workforce gratitude.

Implying on the employees' gesture -- She should have actually found out the rules of sick leaves in your company and its applicability in case of mere health issues. "She's incontestably at fault"

2] To the concerned point - "3 months pregnant can this lead to complications if the employers decide to terminate her , will they any legal/statutory violations" -- According to the Maternity Benefits Act, under Sec. (3); The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery. (i.e., 6 weeks before the expeted delivery and 6 weeks after the delivery).

Then U/s. 5(2) states, "No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than [eighty days] in the twelve months immediately preceding the date of her expected delivery".

Refer the {Maternity Benefit Act}, as I dont see any legal situation sustaining at the moment.

From India, Visakhapatnam

For Maternity benefits check the below link
Leave Policy for different sectors in India « hrmexpress
And for Warning letter check these
Warning Letter « hrmexpress

From India, Mumbai

Though dismissing or discharging a women employee while she is pregnant shall be interpreted as an act of depriving of her maternity benefits and medical bonus and thus illegal, there is nothing wrong in terminating her service on the ground of misconduct. If habitual absenteeism is a serious misconduct as per your Standing Orders/ HR Manual, then you can initiate disciplinary proceeds against the employee. There should be documented evidences in support of the charges against the employee. If you find that she has been a poor performer, that can also be a charge against her. Here also, proper and regular performance appraisals should have been conducted and it should not be a one time arrangement just to frame charges against a pregnant woman. While doing so, you should also have a record of performance appraisals others conducted during the same period. Otherwise it will be treated as a fabricated document just to frame an employee.

From India, Kannur

Male or female, rules on absenteeism are same. If you have sanctioned 66 days leave, and all approved, you can not initiate any action now. Of 66 days leave she has availed last year, how many days were approved and how many days " not approved" If the Management has approved all, you can not do any thing now
If she has remained absent for 8 days now, issue a letter stating that she has remained absent and proceeded without intimation. Even in case of sickness, the employee is supposed to inform the management immediately and it is within your right to initiate action if you have not received intimation.
Initiating action during pregnancy per se is not illegal as many think. You need to examine past records of the employee, her current behaviour and keep all records intact

From India, Chennai

Dear Priyanka,

Section 12 of Maternity Benefit Act has your answer to some extent the same is reproduced here for your reference

"12. Dismissal during absence of pregnancy.—(1) When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.

(2)(a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus:

Provided that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both.

1[(b) Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within sixty days from the date on which order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissed shall be final.]

(c) Nothing contained in this sub-section shall affect the provisions contained in sub-section (1)."

Now if i see this section and compare it with your case at hand, i see two very important things

1. She absented herself for 66 days in a year which is on higher side

2. But on the other hand you say that she absented herself due to bad health.

Now if we dismiss her for her absenteeism she may take a stand that she absented herself due to illness which is not wrong. The fact of her pregnancy also complicating things badly. Please see section 12 B above the dismissal shall be final only when the appeal will be decided by the authority if she contests her dismissal. Even if we assume that she was not pregnant even then to terminate any employee for continued ill health is not an easy task.

I would request you to carefully weigh your options before taking any step. Although much depends upon the nature of her absenteeism and her over all working performance otherwise. Yes for sure it wont be easy though to terminate her.

From India, New Delhi

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