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Finance Manager
Essykkr
Statutory Complaince/labour & Employment
Ryan
India's 1st Strategic Strengths Coach, Corporate
Imran_ilu49
Hr Executive
+2 Others

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Dear Seniors,
I got a case of one of my employee and seeking you views on the same along with applicable Act.
One of our employee is on Maternity Leave (90 days) and its just being a month employer want her to leave. Her notice period is 2 months and employer wants her to leave and accommodate her two months notice in ML.
You are kindly requested to please share your views along with the applicable Acts. If employer do this what are the penalties & consequences will be applicable for employer and what should employee do if the employer is doing this forcefully.
Thanks & Regards

From India, Mumbai
Dear Nitin,
What is the main cause behing firing? as per my knowledge, Neither Employer can fire an employee nor can give any type of penalties/change in work condition while she is on maternity leave.
Dear Citemember/Seniors If i am wrong at any place please rectify me
Thanks & Regards

From India, Mumbai
Hi
Imran is correct - you cannot fire someone who is on Maternity Leave. There are serious consequences to this action.
Explain to your employer the rules of maternity benefit act, along with case studies where wrongful termination at this time is taken seriously by labour authorities.
Take his approval to get one temporary staff hired for 2-3 months so that some work can be managed.
Regards,

From India, Mumbai
First of all the Maternity Leave is 84 days and not 90 days, with regards to firing the employee during Maternity Period is totally illegal/unlawful apart from gross misconduct. The penalty or consequences on the employer depends upon the employee's complaint to the Labor Office/Civil Suit or any other mode as directed by her lawyer.
From India, Ahmadabad
Dear Nitin,
Considering that she has actually worked in an establishment not less than 80 Days in the 12 months immediately preceding the date of her expected delivery .
than employer can face following penalty, if she registered her case, As per The Maternity Benefit Act - 1961 , If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, the employer shall be punishable with imprisonment which shall not be less than (03) three months but which may extend to (01) one year and with fine which shall not be less than Rs:- 2000/-, which may extend to Rs:- 5000/-.

From India, Mumbai
Dear Nitin,

You have mentioned that the employee has put in only one month service prior to proceeding on Maternity Leave (ML).

First of all please note that an employee has to put in atleast 160 days attendance in preceding one year (earlier it was 80 days). From this it transpires that the female employee is not entitled to ML at present. Moreover, if she was pregnant at the time of joining, she should have informed about this fact at the time of joining for availing leave (other than ML).

Secondly, as regards removal from service, no employer can remove any female employee on such frivolous grounds. There is provision of penalty for such action, if the employee takes shelter of law. It would be quite in-humanitarian to remove a female lady who needs more attention and sympathy than such apathy, proposed.

Pl try to convince your higher management that removal of service of female employee shall lead to legal complications. I am sure your advise will be given due regard and other alternative will be sought.

Best wishes,

AK Jain

HR Personnel.

From India, Jabalpur
Can you, please let us know from where you have taken this 160 days attendence clause, because as per section 5(2) of MB Act its 80 days and women migrated from Assam, this 80 days condition is also not applicable.
i have also not countered with any recent amendment in above provison of MB Act.


Dear Essykkr,
Thanks a lot for correcting me. In fact the figures got reversed, earlier it was 160 days, which has been amended to 80 days.
QUOTE : The qualifying period of service for the entitlement of maternity benefit under the Act has been reduced from 160 days to 80 days of actual work in the preceding twelve months.
Ref : http://labourbureau.nic.in/Report_WOTMBAct_2010.pdf
I am again grateful for your cautious reading. The error was unintentional, and it is regretted.
AK Jain
HR Personnel.

From India, Jabalpur
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