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Respected seniors
Please let me know immediately ,can a pregnant employee be removed from job because of absolute non performance
please let me know the legal perspective also how can the company defend itself in such condition.first of all the employee had fraud the company with out revealing that she is pregnant.
Deepthi
From India, Hyderabad
Dear Deepthi,
Pregnancy and non-performance are absolutely two unconnected issues. Has the non-performance been proved? Were the warning letters issued for nin-performance? Has the enquiry been conducted before termination?
Did the employee comnunicate to HR Dept about her pregnancy? If yes, then when and how it was comnunicated?
There are so many questions associated with your post. Please give further information.
Thanks,
Dinesh Divekar
From India, Bangalore
She joined in the organisation in sept her delivery due date is April that itself means that she did not reveal that her pregnancy at the time of joining . Her non performance was proved by mails and also intimated to her by mails.she is not yet terminated.but she says that she go to court of law for her defence.
From India, Hyderabad
Apart from what Mr. Dinesh has mentioned, not revealing pregnancy by an employee cannot be termed has fraud and that cannot be the reason for denial of Maternity Benefits if it is so.
From India, Ahmadabad
Firstly , please refer to Section 5(2) MATERNITY BENEFIT ACT, 1961. No women is 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 160 days in twelve months. You said she joined in April. (I fail to understand why did you take so long to take action against her and awaited for long period).

Evidently , she is eligible for the Maternity Benefit act.

Also, please refer to section 12, Sub section - 2(a) for dismissal during absence or pregnancy. The termination of such women at any time during the pregnancy, the women is entitled to Maternity benefit or Medical Bonus referred to section 8 of the Maternity Benefit act, 1961, and shall not have the effect of depriving her of the maternity benefit or medical bonus.

In simple words, The Act forbids you to dismiss a pregnant women during her pregnancy period. Even if you dismiss her citing professional reasons (Under section 12, 2(a), still she is entitled for the benefits under the act.
From India, Mumbai
Dear Seniors Pregnancy is not at all the REASON .She is a proved non performer we were initially also ready to give maternity leave but she is now trying to use her situation .
From India, Hyderabad
Dear Brijendra she joined in Sept.not April.and we did not think any thing as she is was intially giving us a picture that she is doing good.
From India, Hyderabad
sir ours is a proprietor concern do you still think all the above rules apply.
From India, Hyderabad
Dear friends , 160 days criteria is old story prior to 10.1.1989. Varghese Mathew
From India, Thiruvananthapuram
Her joining date is September not April.and she is probably giving a picture of performer .From january is what we realize bad things from her.
From India, Hyderabad
@Varghesemathew, I have gone through the revised act ammendments 2008 and i find the no substantial changes except for the medical bonus. Please correct me with relevant changes with sections as applicable. For the moment, i presume, i have read and understood the act well.
@ Deepthi_regalla- Even her joining date is Sep, I presume she has completed more than 160 days. This will not change the picture. Any women working on permanent, probationary or contractual basis will end it benefiting from the Maternity act.
To sum it all , the employee will be getting all the benefit under the Maternity act.
From India, Mumbai
My company`s point is she is a non performer why should she be benefited becoz of her company incurred 50,000 loss which was proved on papers
From India, Hyderabad
First, please clarify : was it fraud or non performance ?
Further, was non performance amounting to negative impact / loss of customer or just less efficient. The answers to some extent would be influenced by that.
In general, she has worked more than 80 days before delivery date and is entitled to maternity benefit. As per the act you can not terminate her till the end of her pregnancy. So you are stuck with her. You can terminate her only in April.
She is smart, and probably planned this. You guys are taken for suckers, so now you don't have an option but to pay her salary and maternity benefit under the act.
You can put her on compulsory paid leave till delivery If you feel her presence is detrimental to the working of the company.
From India, Mumbai
Dear members As per sec 5(2) amended by sec 4(b)(1) of Act 61 of 1988 effective from 10.01.1989 , the minimum period of work under an employer , to be eligible for MB is 80 days. Varghese Mathew
From India, Thiruvananthapuram
Dear friends,

The real issue here is the non-performance of the employee. Incidentally employee happens to be a pregnant woman. Deepthi's befuddlement is more because of the payment of pregnancy benefits to a non-performance rather than the root cause of the problem.

Root cause of the problem is improper recruitment. Will this job candidate give the required performance? This is the million dollar question. Why interviewer(s) failed to unravel poor performer within her?

So far the the whole discussion has revolved around payment of maternity benefits under the provisions of the relevant law. Legal provisions apart, now the time has come to think from management science point of view also. Now Deepthi needs to reveal the woman employee's designation, qualification, how the selection was done, what kind of tests were taken to assess the suitability of the candidate etc.

Recently Amazon selected a woman employee at a very senior level. She is daughter-in-law of our family friend. She told me that recruitment process contained 10 rounds. Of these 10 rounds, two rounds were hardcore technical rounds wherein her brain was battered hard.

Though she has more than 10 years experience of which eight years in very top-notch IT company, Amazon did not believe on it. Amazon did not believe on her qualification of IIM, Bangalore also. They went ahead with their stringent recruitment process.

Deepthi's post throws light on importance of training of managers on "Interview Handling Skills". Many companies prefer losing money on poor recruitment but saving on managerial training. Is Deepthi's company one amongst these? That she would know best!

Thanks,

Dinesh Divekar


From India, Bangalore
Deepthi As per your thread she is a non performer and the company has incurred a loss of Rs. 50K, what steps were initiated from your end, please let the forum know.
From India, Ahmadabad
Hi Deepthi
In this case when u are aware that the lady is pregnant you cannot remove her from her service. On medical ground she will get relaxation on duty. While she is on maternity leave even at that point of time you will have to sanction her leave till the time she is not fit to join the off be it on paid or without paid.
From India, Gangtok
you can terminate her on basis of non performance but you must need all the proof to prove that, like warning letters, Mail copy, performance records etc.. but clearly not on the basis of pregnancy
From India, Bangalore
Hello Deepthi,
Saswata Banerjee is right on dot.
Even w.r.t. your contention about her 'fraud' [not informing that she's pregnant], I think you are on very thin ice, BOTH legally & logically--if she joined in Sept, 2014 & her Delivery is due in April, 2015, then she can always get away saying that even she didn't know about it when she joined [she would have conceived 1-2 months earlier & she can take the stand that she got the Pregnancy Tests done AFTER joining].
Suggest consult an advocate & check-out IF the documentation you have w.r.t. her non-performance is valid AND sufficient legally [you mentioned a loss of 50 K, etc].
If Yes, then suggest go the whole hog & handle her legally--but keep in mind that she seems to have geared-up legally too [and to the extent I know about how Courts deal with such matters, SHE will tend to have more sympathy & benefits-of-doubt].
Rgds,
TS
From India, Hyderabad
Dear Deepthi,
My point is little practical. If management don't want an employee or visa versa , then it is not healthy to continue with the employee. As it doesn't work in favor of both the parties.
February month ended now. Her maternity is due on April. So only one month she will be coming. Also she will take maternity leave, one or two weeks before her due date.
Let her go on maternity leave. After that you may get a lot of points for separation.
I always prefer to keep the issues away from courts and law. Neither party is going to get benefited.
From India, Delhi
Dear Deepthi, You should have asked her to submit medical ceritificates before joining. I wonder why didnt your company have such a policies. Actually In your case pregnancy is not a matter at all. If any employees performance is not well then the concerned organization have all rights to terminate their job. But you have to warn them before the termination. As you mentioned earlier, warning has already been given to the employee, so you can terminate her. To avoid these kind of cases ask the new joinies to submit Medical certificate.
From India, Gandhinagar
[QUOTE=saswatabanerjee;2211988]First, please clarify : was it fraud or non performance ?

Further, was non performance amounting to negative impact / loss of customer or just less efficient. The answers to some extent would be influenced by that.

In general, she has worked more than 80 days before delivery date and is entitled to maternity benefit. As per the act you can not terminate her till the end of her pregnancy. So you are stuck with her. You can terminate her only in April.

She is smart, and probably planned this. You guys are taken for suckers, so now you don't have an option but to pay her salary and maternity benefit under the act.

________________________

I am surprised at the assertion the lady in question was someone who came with an intent to defraud. The first line clearly indicates you have no knowledge about the circumstances. Unfortunately, the third line is a judgement without having a shred of evidence.

Being pregnant is not a crime by itself unless the role requires her to do something which can harm the baby. I don't think any woman is required to declare it which is certainly very patronizing and downright discriminating to say the very least.

I am pretty surprised how an HR forum is ready to quote laws to restrain but doesn't dwell on theories to grow their employees. If a job requires her to sit and respond to emails or make a few phone calls, then a simple provision of a laptop and Internet Connection will resolve the issue. The company will earn a loyal employee. Unfortunately no amount of recruitment process designed by IIT/IIM/Harvard can buy a loyal employee from the market.

Having faith in people is often the most over-stated theory in HRD, From what I have read so far is no evidence being provided in justifying the claim that she has defrauded the company apart from the fact she didn't declare she was pregnant. To my mind that ain't fraud by any stretch of imagination. Otherwise let me know what is the fraud with the evidence rather than a rhetorical statement.
From India, Bangalore
My My !

What a response !

I wonder where you did your HR training from.

There is no enough details in the mail to give us clear and complete knowledge of the circumstances. I am happy to be accused of now knowing the circumstances (its not my company, i dont work there) than to give half baked feedback and suggestions without finding out the actual details.

Companies run business, not charity. It makes no sense for them to employ someone who is going to be on paid leave few months after joining, or who will need to be given restricted work (its specified in the act, btw) and be given the full salary. They would be wiling to do that for someone who has worked there for a reasonable amount of time, not for someone who has just joined, and will probably take full advantage of the law on maternity leave and then not bother to come back to work after her full level of benefit is exhausted. if the circumstance were different, the original query would not even have been asked. Anyway, the response of the employee in question show clearly what type of a person she is. The later posts also state that she stopped working seriously after her pregnancy was confirmed. There is nothing to say that her performance gap is due to illness or pregnancy related stress.

I am glad you were able to enlighten us that the job only requires her to make phone calls and send emails. The original post does not say so. So i assume there was some information that was communicated to you directly ?

[QUOTE=Sajr2;2212815]
From India, Mumbai
Dear learned members,
The last post that Deepthi has given was on 25-Feb-2015. Thereafter, she has gone incommunicado. As a originator, she should have participated occasionally and given clarifications. Therefore, there is no point in squabbling among the respondents. We are expressing our views in the interest of Deepthi but if she is not interested then why to waste our time and energy in typing the replies? My reply to her has also gone unanswered. Let us concentrate on other threads where needy members are waiting for the responses from seniors.
Since the thread has taken very different turn, I deem it fit to close the thread.
Thanks,
Dinesh Divekar
From India, Bangalore
Please treat her with respect. Other people in the organization are watching you. There is nothing called "Non Performer" no one leaves home spends 9 hours in office "not to perform" Give her tasks she embraces, engage her, be positive with her. She will respond.
Let's say Deepthi, you are in same situation, what would you want your employer to do with you? do that.

When did you realise that she is a non performer??
Termination during pregnancy period is difficult as it would contravene labour laws.Termination needs to be done after due processes only.
Hurried termination would land you to labour court.
From India, Pune
As per Maternity Act, no woman employee can be removed on the basis of pregnancy or for any reason during the pregnancy period. If it is done, it is not valid in law. You can book a case against the employer for violating the Act and criminal case for humiliating during the pregnancy period by removing her from service on the basis of unsatisfactory work.
D.Gurumurthy
From India, Hyderabad
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