Saswatabanerjee
Partner - Risk Management
Psdhingra
Legal Analyst, Hrm
Kamalkantps
Advocate
Kishorkulkarni
Law Practice
Ed Llarena, Jr.
Owner/ Managing Partner
Pvenu1953@gmail.com
Retired Government Servant/advocate
Gfx3d
Advocate
Riteshmaity
Labour Law Advocate
+4 Others

#Anonymous

Dear Seniors,
I would like to ask can we terminate a Manager who had 2 affairs in our office and both the employees ( Executive ) have given written complaint against him? When we received 1st complaint saying that he is mentally harassing as he is carrying with other employee. On that company has given him verbal warning as it was consensual relationship so not coming under POSH. But now we have received 2nd complaint from other employee saying that he cheated her and also revealed information about company and new processes etc. He put false allegations on Directors and other Manager as well.
Kindly guide me on which grounds can we take action and can we terminate him?
Please reply.
22nd July 2016 From India, Mumbai
Hi! Look at your labor laws and the internal rules and regulations of the company covering the matters that you mentioned. Then act correspondingly based on them. Best regards.
23rd July 2016 From Philippines, Parañaque
Yes. You can. But you need to take the proper steps. First thing is to issue a suspension. And revoke all his data access and right to files
You need to speak to your lawyer to see if this is a criminal case and if your directors wish to pursue it then file an FIR also
Then you need to initiate domestic inquiry both under the standing orders and under posh and proceed. Termination is an acceptable penalty for the misconduct you claim he is guilty off. But ensure that the rules are properly followed in both cases including rules of natural justice
23rd July 2016 From India, Mumbai
Does so called cheating comes under sexual harassment at work? I do not think so. If you stick to the cheating element I do not think there is any case.
And can a company files a case for cheating in terms of relationship with the employee on the allegation of an employee? It is better if the concerned woman employee takes action against him if required.
It is better to start a proceeding under Prevention of sexual harassment and basing on the report of the internal committee you can take steps.
23rd July 2016 From India, Kolkata
Ritesh There is a case here of the manager revealing Comoany trade secrets and processes to an outsider (Competitor perhaps ?) I was referring to filing a case for that
24th July 2016 From India, Mumbai
I smell some artificiality in your query. You have not mentioned in what capacity of yours in the company you have asked the query.
Anyhow, false or true allegation, you will have to go through the process given prescribed under POSH. You don't have any right to straightaway terminate the manager on that count. The charge has to be proved by the accuser.
Secondly, as against the title of your query, nowhere in your description of the query you have mentioned anything about revelation of business information of the company and to whom? Discuss if you have any proof about that.
24th July 2016 From India, Delhi
The facts mentioned and the tone and tenor of the query suggests that the allegation of 'affairs' is an after thought or invention. Prima facie, the issue appears to be something else and the POSH is being tried to get rid of the inconvenient employee.
24th July 2016 From India, Kochi
#Anonymous
Dear All,

Thank you very much for your replies.

I am working as HR Manager in BPO. We have sales outbound process. The query which I have raised is about our Sales Manager who had affair with one of our employee ( Executive ). After some time he started affair with another new joinee ( Executive ) so the 1st employee complained that she can't concentrate and not able to perform bcoz of their acts & behavior in the office. But it was consensual relationship so we have just counselled him for not doing such things in the office.

Now we have received complaint from 2nd employee (new Joinee) saying that he cheated her means they have started carrying on but he hided his affairs which she came to know later on and again he is trying on other new joinee. So she raised question that how can company stop this person who is approaching new joinees for relationship. He is not using his designation power directly but yes indirectly he is doing so. He is spoiling reputation of the company and no female would like to work in such environment. On this also company has taken decision that as it is again consensual relationship we can't take action on her allegations for cheating her.

But that employee has came up with the complaint that Sales Manager revealed some information about processes and business secrets to her. He told her that we are going to start some new processed and bosses are going to shift him there for 15 days. He has given false information to her that one of our branch is going to shut down as not making profits. He told her that our Directors as also taking salary and not profits ( when previous HR left Sales Managers used to do Payroll so he had the access of Salary data)

He told both the Executives when they were carrying on that he will take them in new processes and if they are not able to get the card then they can pass the call to him and he used to escalate the call for them.

He has taken favors in the form of money from them which is against our policy.

He told both the Executives that other Manager is playing dirty mind games and biased . Directors as also biased and they will give promotion to other Manager. When that Manager asked explanation for this in front of Director he just apologized for saying that.

He told her that when 1st employee given written complaint that time also Directors told him to tell that employee to take complaint back. But she has not taken it back. So he told her as well that bosses told him to convince her to take complaint back. The same thing he told to other employee ( with whom he had second affair ) which is false allegation on Directors.

Also he told both of them that company can't take any action against him as it is personal matter and not official so whoever female employees will join this company I will try on them.

Now I have given the full picture of whatever has happened. My Directors wants to terminate him but it has to be as per Law.

Kindly guide me on this Please.

I need your guidance.
25th July 2016 From India, Mumbai
Firstly, you will have to investigate (in a fair manner and without bias), the truth in allegations vis-a-vis the behaviour of the Manager. If you find the allegations are true and the behaviour is unbecoming, certainly you can issue chargesheet, ask for explanation and by giving him a reasonable opportunity to defend, conduct an inquiry and take proper decision. ( The entire procedure of Inquiry cannot be elaborated here)
As Learned member Mr. Saswata Banerjee arready pointed out, you will have to suspend his powers etc even to his entry in office and all such necessary steps.
It may be suggested that, for a Manager, Company can terminate his services at any time and why any inquiry is necessary at all.??? But, please note that, when any person is removed putting charges or stigma, he must be allowed to be defended. Otherwise, if termination is challenged by Manager in any Civil Court, the Company will have tough task to justify its action.
25th July 2016 From India, Kolhapur
#Anonymous
Thank You very much for your reply Sir.
We have already given him chance to defend and he confessed in the front of one of our Director. Please guide me what is the procedure we need to follow now. Do I take signature on the document which I prepared mentioning that he was found guilty for false allegations on other Manager and revealed information or just have to keep the document in records. And on his confession can company terminate him? or just we have to suspend him.
Please guide.
26th July 2016 From India, Mumbai
If he has confessed, get his statement in writing. If not issue a letter referring to the confession he made to the director and false allegation he has made and ask his explanation why a suitable disciplinary action should not be taken against him. Give him a time line to reply. may be 7 days. Suspend him pending investigations. Remove his access to any electronic data banks. You need to properly organize written proof of him leaking company information also. If you have the proof, when you receive his explanation, if he do not accept his fault you may have to go for an inquiry. If you have solid proof, then you can terminate him. If he accept the fault, then there is no issue of termination. However depending on the gravity of the offense, you can take legal action on criminal charges. If it is that serious you can tell him that if he resigns you would drop the criminal charges and push him to resign which would reduce your burden.
26th July 2016
#Anonymous
Thanks a lot for your reply. I am really grateful for your guidance. Can anyone provide me the format of chargesheet or show cause Letter for this case. Please reply. Thanks
26th July 2016 From India, Mumbai
#Anonymous
Dear All,
I would like to ask for how many days we can suspend the Manager as found guilty?
And as mentioned in the previous reply about suspension can we suspend a person after receiving complaint or after proving him to be guilty we can suspend?
Kindly reply.
26th July 2016 From India, Mumbai
Dear All,
I do not see any Labour Law difficulty in terminating such Manager as he do not fall under the Definition of the workman. Even you can terminate such Manager instantly by giving him one or two month (as given in the employment agreement) notice pay in lieu of the notice. Office is not a place for romance and definitely coworkers are off limit for official information which is privy only for few Senior Staff.
It is Management's call if they want to terminate such Manager who is spoiling the office environment. There are no Legal Limitations in doing so. Just give him notice pay and you would be good to go. You even do not need to hold the enquiry. Simply say that your services are no longer required and attach his full and final with it. Such people lead to bad office environment which must not be tolerated at any cost. The situation would have been different if he would have been a workman.
27th July 2016 From India, New Delhi
Dear Shri Kamal Kant Tyagi,

If you please don't mind, you being an advocate, your advice should not have been suggestive of an ex-parte judgment on the part of the management. Allegation can be or cannot also be true. So far as the concern of spoilage of office environment is concerned, that can become worse, if a wrong accuser is given undue support without proper investigation, as that can tend to setting up a precedent for any other woman worker also to make false accusation against his superiors without any reason or rhyme, if she is scolded for her inefficiency.

Although the manager can be terminated any time even without showing any cause, but in the wake of a serious allegation under POSH, it becomes quite essential for the management to discharge its duties & responsibilities with due diligencw by giving proper hearing to the accused.also before penalising him. Such incidents, if not investigated properly, not only can affect productivity, but also make the HR target of criticism for its bias and prejudice. My belief is that HR has to keep proper checks & balances in dealing with such type of cases before arriving at a final rational concusion. So, mere allegation should not be taken as enough for termination of a manager that must also be proved beyond any doubt.
27th July 2016 From India, Delhi
#Anonymous
Dear Sir,

As I have already mentioned the Manager has confessed for certain things in the front of one of our Director. So the allegations made by Executives are not false. But my query is can we terminate on these grounds because the action is always based on severity of the offence.

He revealed some information to that female employees which was discussed only with bosses in the cabin. One of my Director feels that the information which he revealed is not so important. But other Director said he should not share any information whether its important or not, doesn't matter.

Having affairs is personal and consensual relationship so for cheating in relationship we cant take action ( we wish to take action as he is not stopping on one girl. He is approaching female employees but very smartly. He knows about POSH I suppose, That is why he bluntly said that company cant take any action, unfortunately which is true)

But he revealed information about new processes and also told both females that he will take them in that once started when he was in relationship with them. So on this basis I raised my query about his suspension or termination.

Kindly guide me can we terminate him or if suspend him then for how many days we can suspend him?
27th July 2016 From India, Mumbai
Dear Anonymous,
Confession on personal discussion between two persons and written confession are two distinct things. You have claimed to be an HR Manager but, please don't mind, your inapt and raw descriptions of the events so far indicates something else about you.
So, better read the act and rules on sexual harassment and act according to the process prescribed therein. But if you are so inclined not to follow any legal mthod, you may better use your own wisdom in the matter.
27th July 2016 From India, Delhi
Suspend.Investigate. Chargesheet. Get his reply,if agrees punish him. If not make one Enquiry committee headed by 1 grade senior to him. Put management defence. Let him defend through one employee/himself. Obtain decision of Inquiry officer. Then punish him. But all should be as per yr HR policy.
27th July 2016 From India, Ahmedabad
Such acts of executives should be handled with Iron hand. Taking A Transparent action under POSH would save the reputation of the organization as well as sending message to the other employees working in the organization. If the allegation is proved in the ICC enquiry, the heavy penalty be imposed on the delinquent in addition to the removal from employment.
27th July 2016 From India, Mumbai
Agree with suggestions by ED Larena, Ritesh & K. Kulkarni.
Steps should be as -
1) Verify the allegation, unbiased.
2) Depending upon the result, revoke the authorizations, so that culprit should not be able to effect the scene.
3) Give both of them a chance to defend himself/herself. (Using word HER,as at this stage you can not name the accused).
4) DOCUMENT the confession very clearly(on paper / on recording).
5) In any case, this does not seems as Sexual harassment case. Nor of revealing business secrets. Because he has not passed the information outside the company. Please check internal rules & regulations of your company. Does it speak any thing about sharing information among the Colleagues.
6) Charges can be of Business ethics & Code of Conduct only.
7) On this basis with complete evidences & confirmation in hand, the culprit can be TERMINATED.
27th July 2016
Agree with suggestions by ED Larena, Ritesh & K. Kulkarni.
Steps should be as -
1) Verify the allegation, unbiased.
2) Depending upon the result, revoke the authorizations, so that culprit should not be able to effect the scene.
3) Give both of them a chance to defend himself/herself. (Using word HER,as at this stage you can not name the accused).
4) DOCUMENT the confession very clearly(on paper / on recording).
5) In any case, this does not seems as Sexual harassment case. Nor of revealing business secrets. Because he has not passed the information outside the company. Please check internal rules & regulations of your company. Does it speak any thing about sharing information among the Colleagues.
6) Charges can be of Business ethics & Code of Conduct only.
7) On this basis with complete evidences & confirmation in hand, the culprit can be TERMINATED.
27th July 2016
Please do terminate the employee as per the legal terms & conditions. Any haressement against female needs to counted seriously to uphold the confidence of other employee in the system.
28th July 2016 From India, Madurai
#Anonymous
Dear All,

Thanks a lot for your replies.

Dear Priti

I would like to thank you for your guidance and for providing me plan of action.

I raised this query because one of my Director is in favor of Sales Manager as he is with him from last so many years and in this company also he is from inception . So there is emotional attachment. Before taking any action I have to consider this and have to convince or you can say have to prove that the action is required as per law. When I received 1st complaint and I told employee to give written complaint after that my Director was not happy for receiving written complaint and told me that I am stretching it. He told the Manager to resolve it by convincing employee to take complaint back.

In this case also they have not involved me for 2 days and tried to resolve on their level but when the female was not ready n wanted to give in writing then I was involved. This was just because I follow Labor Laws and Rules & regulations.

Being on Managerial position I also understand that confession on personal discussion between two persons and written confession are two distinct things but just wanted to have seniors opinion as I am not getting support from Management.

Thanks a lot for your guidance.
28th July 2016 From India, Mumbai
Dear Anonymous
1. If your intention is to avoid future litigations on the issue by the sales manager then,
2. Get his explanation in writing.
3. Get complaint from the female employee and forward it to Internal Complaints Committee.
4. Initiate a domestic inquiry, treat sexual harassment as a misconduct under the service rules and initiate action for misconduct;
5. Terminate him giving notice period and pay his final settlement.
28th July 2016 From India, Vellore
There is an interesting aspect to all of this that we seem to have overlooked.
This is a complaint by 2 female employee against a manager, who has the right and power to have them removed from their job.
So, the matter is not necessarily of a mutual consent sexual relationship.
The employees have made written complaints (Though we don't know the contents of the complain)
Can the Comoany actually avoid putting this before the POSH committee ? Wouldn't it have adverse effect on the company and make them liable under the act for suppression of the complaint ? Whether it is an offence or consensual is something the posh committee can decide after investigation and hearing all sides.
Else, it the matter goes to the district committee or becomes a police complaint, the matters can be bad for the directors who will be considered a party
29th July 2016 From India, Mumbai
#Anonymous
Dear All,
Thanks you for your replies and guidance.
The Sales Manager resigned on his own. But the complainants are saying what if he comes back. As I told you one of our Director is in favor of him and he is out of town so after he comes further process would be done.
Once again Thanks a lot for your guidance and support. I agree with Mr. Banerjee that the matter is not necessarily of a mutual consent sexual relationship as we have received complaints from 2 employees against the same Manager. He is spoiling reputation of the company and creating hostile environment in the office. I wanted to take strict action on him.
I will follow the action plan given by Ms. Priti and Mr. L.K.Saravanan when he would be called by the Director and give chance to defend himself
Thanks & regards.
29th July 2016 From India, Mumbai
Dear , Firstly you need to take his written confession about his work, and that should be in front of respective are police in charge otherwise employee will be able to take legal action with saying that he was in pressure of seniors for writing this otherwise seniors will out him from company. after that company formally make a complaint regarding the actual issue than as per sexual harassment rules you can fired him. but a written complaint required by the both female employees because this is a evidence which will show about your intention of termination.
17th August 2016 From India, New Delhi
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