Queries
Hi All,

We have a new joined lady in out team who joined in Nov 2016, she was supposed to get confirmed in May, 2017 but due to some unavoidable reasons her confirmation review happened in June and her confirmation is extended as her performance was not upto the mark and would review her again in August. Post knowing this she breaks the news to us that she is 5 months pregnant and will be going on Maternity leave from Oct 2017, she did not inform us intentionally about this earlier thinking that the company will not confirm her. Now she wants 6 months maternity which she is not eligible for, as she falls under old maternity act which is for 12 weeks. What can be done in this scenario as she is not even confirmed in the organization. Is the Organization oblige to pay her maternity pay & benefits?

Kindly guide.
Anonymous

27th June 2017 From United Kingdom, Reading

PARTICIPATING IN DISCUSSION:
Dinesh Divekar
Business Mentor, Consultant And Trainer
Madhu.T.K
Industrial Relations And Labour Laws
Umakanthan53
Labour Law & Hr Consultant
Kamalkantps
Advocate
Sunielmudgil
Legal And Compliance Consultant
Gannahope
Asst.commissioner Of Labour..a.p.
Lingappa Yogi
Hr Assistant
Vmhr@rediffmail.com
Sr. Manager (p&a)
+2 Others

Dear Kavita,

Please note the following:

a) Maternity benefits do not depend on whether the employee is confirmed or not. To whom to confirm and who to keep under probation is internal matter of your company. You cannot link it to the maternity leave.

b) You have written that "Now she wants 6 months maternity which she is not eligible for, as she falls under old maternity act which is for 12 weeks." Would you mind to educate us on under which clause of Maternity Benefit Act, 1961 (as amended in Mar 2017) you have reached this conclusion? It is time for you to come out of the regime of the self-made notions and educate yourself on the amendments of the labour laws.

c) She is perfectly eligible for the maternity leave of 26 weeks. If you fail to sanction her maternity leave, or terminate her close on the heels of second trimester of her pregnancy, then be prepared for the legal reprisal.

d) The penultimate sentence of your post reads "she is not even confirmed in the organization". In your organisation, is secondary status given to the employees till they are confirmed? If yes, then it is against the principles and practices of HR Management.

Thanks,

Dinesh Divekar
27th June 2017 From India, Bangalore
Dear Kavita,

First of all, don't think that she did everything intentionally. You appointed her in Nov 2016. By June 2017, she inform you that she is 5 months pregnant. That means, she become pregnant only after Jan 2017, ie., after joining the company.

Second, If you are a HR or if somebody is available in your organization as HR, Please go through the Maternity Benefit Act, whether she is eligible or not, as per Act. The Act doesn't mention anywhere that it is only applicable for confirmed employees.

Third, You have mentioned that she falls under old maternity Act. I understand that you believe that the New Amendment is applicable for the employees joining after the Amendment Date. YOU ARE WRONG. The new amendment is applicable for all employees irrespective of their joining date.

PS: Just check whether she is covered in ESI. If yes, then she can claim the salary from ESI.
28th June 2017 From India, Chennai
well replied by the experts, nothing more to add post your query only not conclusion,
28th June 2017
Ms. Kavita

When she completed 240 days of working in your organisation in a year or 480 days in two years time then she gets automatic confirmation as per the law. Secondly, as and when she completes 80 days of working in an organisation, becomes eligible for Maternity Leave either under ESIC ACT or MATERNITY BENEFIT ACT 1961 depending on the salary drawn by her. Hence, the organisation has the obligation to full fill the request of Maternity Leave of 26 weeks TO HER. The question of ambiguity does not arise.

V.MURALI
+91 9941153511
29th June 2017 From India, Madipakkam
There is no dispute that she is eligible for maternity leave of 26 days. But I differ from V Murali's statement that an employee gets confirmed automatically once he/she completes 240 days of service in one year OR 480 days in two years. The latter condition of 480 in 2 years is irrelevant if one is to get confirmed in one year. I have not come across with any such legal provision under any law. There can be some departmental rules or orders in the Standing Orders of the company which tell us about automatic confirmation, but under normal circumstances an employee becomes confirmed only when he is communicated of his conformation in writing and there is no automatic confirmation. Anyway, this is not relevant in the present discussion because the issue is not with regard to confirmation but with regard to eligibility of a woman employee to maternity leave just due to the reason that she has rendered 80 days of service. Hope, she should have 80 days working since she had joined the company sometime in November, 2016.

Now, I would like to draw your attention to what section 5(2) of the Maternity Benefit Act which says that "No woman shall be entitled to maternity benefit unless she has actually worked in an establishment .......... for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery".

It is worth anyasing the meaning of " in the twelve months immediately preceding the date of delivery". Why don't we interpret it that a service of twelve months with at least 80 days attendance before child birth is mandatory for eligibility? Now if you see the eligibility conditions under ESI Act you will find that in order to be eligible for maternity benefit, woman should have contributed (means worked, earned wages and paid contribution) for at least 70 days during two contribution period, ie, one year. There is a waiting of one year for getting eligible for maternity leave. If you read the same along with section 5(2) of the Maternity Benefit Act, I also doubt that 12 months with 80 days minimum service should only qualify for maternity leaves.

I am unable to find any case law in support of my above interpretation, but I wish you will comment on it very positively.

Madhu.T.K
30th June 2017 From India, Kannur
Dear Madhu.T.K

I appreciate your observations.

Basic question is raised on the front of confirmation of services of an employee by Ms. Kavita for granting of ML.

Please refer to the ID Act 1947 for the statement which I made. Further, twelve months what you refer here with particular case i.e she is working from Nov'16 and wants to avail ML from Oct'17 only and hence one year as also the re knocking period of two contribution periods i.e April-Sep and Oct - March cover under ESIC. Moreover, If that employee was already under ESIC with other employment before joining with this organisation this facility should be extended. Hence, look at the case prospectively as Human Resources Professional eventhough we do not know the case facts as this is a forum for exchange of views or opinion for betterment of the HR function.

V.Murali
30th June 2017 From India, Madipakkam
Dear Kavitha...ji
She is perfectly eligible to get all benefits under protection given by maternitybenefit act and also other labour laws for granting leave providing advance and medical care ..as equal to regular employees.
As per existing law of the land says all protection should be provided even to daily labour even working as contract labour ..
nothing more i can say than mr.Divekar explained.
nothing wrong if u provide any benefit through ur company with a broad out look...not like a troublesome mother.in.law.
we r not at all supposed to knew when pregnancy comes...human body natures cant be find out by others...
so deal smoothly..n think positively...
if any male asked this quiery the answer may differ..pls.
30th June 2017 From India, Nellore
Apropos of Madhu's observation on the right interpretation of eligibility for and entitlement to certain employment benefits arising out of the prescribed qualifying period of service in the concerned labour laws. When the entitlement to any employment benefit or right arising out of a particular length of service is subjected to a larger stretch of time period as a pre-condition of eligibility to stake the claim for the same, the fulfillment of eligibility would logically precede the entitlement.
1st July 2017 From India, Salem
Dear Kavita, She is eligible for maternity benefit. Thanks, Vineet
2nd July 2017 From India, Yavatmal

Please login to participate in this discussion or start your own. Create Account



About Us - Advertise - Contact Us - RSS   On Google+  
Privacy Policy | Disclaimer | Terms Of Service
Facebook Page | Follow Us On Twitter | Linkedin Network

All rights reserved @ 2017 Cite.Community™