Umakanthan53
Labour Law & Hr Consultant
Saswatabanerjee
Partner - Risk Management
Dhrao
General Manager - Hr
Pratheekshaa
Senior Manager - Human Resources
+6 Others

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Hello all,
I work in a manufacturing firm with about 100 permanent employees that are with company from 5-30 years. Till now, relations of management and employees are cordial and there is no labor union or written contract. There is a case of a non-performing employee and he doesn't improve after several verbal warnings. Is it possible to terminate him without giving written notice? Or he can challenge this decision in labor court? Also do same labor laws apply to workmen, supervisors, engineers & managers in this matter?
Would really appreciate if you guys share the opinion on above.
Thanks in advance

From India, Ahmedabad
As per the law you cannot terminate the service of a workmen without notice/charge sheet/enquiry .If the workmen accept the termination and do not challenge the termination it is a different matter.He can approach labour officer and Labour Court without the help of a union.
There are labor laws applicable.The payment of gratuity Act 1972 applies to all employees irrespective of nature of work.designation and salary.Other laws apply subject the conditions there in .
For more details pl contact.
Varghese Mathew
Labour Law/HR Adviser

09961266966

From India, Thiruvananthapuram
Dear Friend,

Your question has two parts - the first part is about how to dispense with the services of a non-performing employee and the second part about the applicability of the labour laws to all categories of employees.From your post it is discernible that your management and labour have a long and cordial relations even in the absence of a trade union - it is very nice. I may not be wrong if I presume that in spite of the best of efforts you have taken to correct, the particular employee is not coming forth in the correction course and eventually became a dead-wood.As a people-centered manager have you analysed the reasons? What's his past history? How old is he now? Does his non-performance relatable to his psyche or his personal habits?Is it your considered opinion that he should be shown the exit door?Whether you've got certified Standing Orders? Whether the individual is a workman or not, you have to follow the Principles of Natural Justice before sending him out. Labour Laws are applicable only in case of workmen as defined in the concerned statute.

From India, Salem
Thanks to both of you for your replies. It is good to see that someone is taking personal time to solve other persons queries.

The employee in question is not a workmen but a supervisor with more than 8 years experience. And the problem is his work negligence and this is affecting the whole department. So that why I asked whether same laws are applicable to supervisors too? As such we are trying our best to improve the employee performance and motivate him to improve. Terminating him would be the last resort. So just wanted to confirm the legal procedure for termination because as such it is lengthy process and work atmosphere can turn hostile when you issue several notices against an employee and fire him.

Now to avoid such problems in future, we have decided to have written agreement with all our employees mentioning the exit clause clearly to make them aware of consequences of non-performance. Would a written contract supersede the labor law regarding termination? I have seen many appointment letters of mentioning that they can relieve the employee immediately without notice by paying 1 or 2 month salary. Is it legal to do so ?

From India, Ahmedabad
U Just cannot terminate the employee. U have to built up case. Under Industrial Dispute Act and Indian Constitution Article 311, termination process has been spelt out.
Regards
Prabhudesai Satish
Consultant -
& Legal Head

From India, Kumar
Any contract inconsistent with lthe provisions of the Law applicable is void ab initio.Repeated and willful non-performance is certainly a misconduct on the part of the employee.In the chain of performance, every one in the team is an important link. Of course, to err is human and to forgive is divine; but to persist on is rather unwise. There are times that a manager has to act firmly and any slackness in this regard would be disastrous.Better bring things on record so as to initiate a proper disciplinary proceeding against the erring employee in a given frame of time. Instead, if you try to circumvent based on imaginary reasons by entering into a contract inconsistent with the established legal procedure, you will be ultimately landing into trouble.
From India, Salem
The constitution of India has nothing to do with employment or termination of any employee working in any organistaion.
Please stick to the rules as they are laid out, else you will simply confuse people.

From India, Mumbai
The answer to the questions are dependent on the circumstances of the case :

1. Is this a factory or does it come under shop & establishment act

2. Does this come under industrial employment standing orders act ? if so, do you have your certified standing orders or will model standing orders apply. What is the provision for termination under that ?

3. Does he come under the definition of exempt employees ?

In any case, it is important to give a notice (show cause notice ? senior members please clarify) warning him of termination if he does not improve. Further, it is better that you give measurable performance indicators that you want him to achieve in (say) 2 months and also give a list of cases where he has been careless and the effect it has had on his team and on the company.

If necessary, give another notice after a month if there has been no improvement and finally after 3 months, you can issue a termination notice.

It is important that the employee must be given a chance to present his side of the story, in writing or orally. His contention / submission must be considered seriously by the management and a further reply / information must be given to him. In case he is giving an oral reply, have a written down, signed by senior managers & HR and the employee to record what he has said (principles of natural justice is important).

Once a termination order is given, you can give him his notice pay and ask him not to attend office from the next day. That is allowed. Else, you can also ask him not to attend office but remain on call to report if required and pay him his notice pay on the due dates (along with salary of others) or within 2 days of end of notice pay.

From India, Mumbai
As Mr.Umakanthan rightly said,that the status of the employee as 'workman' will determine the applicability of the labour laws to him.I only add that mere designation as 'supervisor' does not take him out of the purview of 'workman' under Sec.2(s) of the I.D Act , You need to take the wage criterion also into consideration as all supervisors are not excluded from the definition of workman.From your statement that you would like to incorporate an exit clause in future in the contracts, stipulating the circumstances that may necessitate exit of an employee, it is understood that there is no such clause in the existing contract with the employee to invoke.Further the employee has been working for 8 long years.All this may complicate the act of summary termination of such employee even if he is not a workman, since you need to record the grounds for terminating such employee that can survive in a court ultimately as even a non-workman has also civil remedies for damages and the employee may succeed if your defence is based on conjectures but not on evidence.At the same time, this is not to say that an employer shall put up with deliberate conduct of negligence which may be contagious.What is required is that you need to create a sustainable body of evidence to prove non- performance, keeping in view the risk of probable litigation ahead.

B.Saikumar


From India, Mumbai
Dear Sir
if the non-performing employee is a workmen then
1. Display a General Notice to all mentioning that everyone have to give production and to improve productivity
2. Advise the non-performing employee by the supervisor for 3 to 4 days
3. Now advise the employee through Production Manager
4. if there is no improvement then start issuing show cause notice and also pls see whether you have any work load settlement or job card to prove the production.
thanks and regards
C Manimaran

From India, Bangalore

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