QUERIES
I have worked as trainee for 2 years ( part time). Now working full time since 6 months as teacher on probation, the organisation is denying me paid leave and says when you resume work there will be no continuity of service and you will be a new employee and shall be absorbed in whatever vacancy available then.
Anonymous

5th November 2017 From India, Mumbai

PARTICIPATING IN DISCUSSION:
Madhu.T.K
Industrial Relations And Labour Laws
Umakanthan53
Labour Law & Hr Consultant
Saswatabanerjee
Partner - Risk Management
ShireenDordi
Preprimaryteacher
+1 Other

Generally, while undergoing the phase of probation, any leave other than casual leave availed of by the probationer would result in proportionate extension of the period of probation for probation is simply the phase during which the behavioral and performance aspects of the individual is closely observed by the employer. However, it does not imply that statutory leave like ML based on a particular natural contingency would affect the overall continuity of the service of the employee.
5th November 2017 From India, Salem
nathrao 1430
Stand of organisation is wrong.
At the most they can consider increasing probation period by the period of ML.
You have worked more than 80 days as such.
5th November 2017 From India, Pune
Anonymous 
So if im on probation and not confirmed, am i eligible to be paid maternity leave of 26weeks post delivery ? And also when i rejoin back after 26 weeks, should my start date with the school which was july 1 2015 be changed to june 1, 2018. The organisation claims that since i will be on unpaid leave for 6 months, they cannot continue to show me as headcount, so they will show me as outflow from dec 2017 ie 30th nov 2017 to denote my last day of work and june 1, 2018 when i resume shall denote my date of new joining, they say that the fact that the organisation is takibg you back after 6 months of unpaid leave is itself an obligation to yo.
5th November 2017 From India, Mumbai
The school management cannot refuse granting of maternity leave to a woman employee who has been in service for more than 2 years. While calculating service your training period should be considered as service period. It is from the date on which you joined as a trainee that will will be considered for deciding your eligibility and amount of gratuity also. The role of a trainee teacher is not just attending the classes of 'leaned' teachers along with the students and assisting the teachers to do their other administrative work but he/ she should have taken the regular sessions and conducted assessments and evaluations and there will not be any difference with regard to responsibilities, duties and authorities. Moreover, having obtained a Degree in Education (B.Ed) which itself involves practical training in recognised schools, there is no need of any more training once you join a school as a faculty. It is due to this reason that we do not have a designation like Trainee teacher.

The school is expected to follow Maternity Benefit Act and allow you maternity leave with salary for 26 weeks. There is no question of break of service. During your absence from duty the management can engage any teacher temporarily for a fixed term. Once your maternity leave is over and you join back, your date of joining will remain unchanged.

Whatever I have quoted is true in the case of schools run by professional management and not by unscrupulous persons who take a huge amounts from the parents of the students by way of tuition fees and pay very less to teachers who teach the students. Whatever I have said is not applicable to such managements who consider parents as assets and teachers as liabilities only. Your management seems to be in the second category and even if you demand maternity leave as per Law they will not give you and will ask you to go (that also is illegal) because they know that nobody from the Labour department will come and question them, perhaps at least the top officials will be one of their Committee Members!!

Against all these, I would say that you should demand it and get your rights.

Madhu T K
6th November 2017 From India, Kannur
Your management is completely going out of turn and avoiding your ML. I completely agree with learned friend Mr.Umakanthan and Mr.Madhu in their version you need to take your matter further as Maternity Leave is a statutory obligation and headcount issue for discontinuance cannot be raised.
6th November 2017 From India, Hyderabad
This is an interesting matter, mainly because there are lots of technicalities that the management can rely on, and those that you can rely on.

As per law, you are eligible for maternity leave. That is paid leave not unpaid leave
The law also specifies that a woman employee cannnot be terminated during pregnancy and maternity leave.
So you are eligible to work for the entire period of pregnancy and get paid for that and 26 weeks of maternity leave. And it can not be considered as service break.

However, you are on probation, so there is nothing in law that requires the management to confirm you and give you a permanent job. Therefore at the end of the maternity leave, the school is free to tell you to stay home and that they do not wish to employ you. They are free to give you a service break AFTER your maternity leave and re-employ you next academic year

Now, it’s a question of weighing the pros and cons to decide where the bargaining power lies and how open is the school management to accepting they are wrong. Based on these factors decide whether you wish to fight or not
10th November 2017 From India, Mumbai
Anonymous 
Thank you very much for the riverts, it was getting too stressful for me so i have left it to karma, if the money belongs to me any how it will come to me, the management is giving me cold shoulder and wont reply to any of my emails. They say that the fact that the organisation will take you after 6 months of unpaid leave means the school is obliging you and since its going to be unpaid leave they say the education department will question them if i am shown as hc when the employee is absent.
I am not savy enough or do not know how to take up this matter further so have left it to karma ( what goes around comes around).
Thank you
10th November 2017 From India, Mumbai
Though at last the poster seems to have taken refuge in the karmic theory out of her frustration, the most pertinent issues arising in the thread still remain to be discussed are -
A) Whether any continuous and statutory leave of absence of an employee such as maternity leave would affect his/her continuity of service?
B) What is the impact of such longer spell of authorized leave particularly on the probationary status of the employee concerned?

The answer for issue-A is that any leave of absence granted by the employer to his employee under the service regulations or the provisions of any statute applicable, whether with or without wages/salary, is to be construed as duty only irrespective of its duration or type. Maternity Leave is a statutory leave with wages/salary. Hence by implication ML entitles an employee to all service benefits other than the monetary effect of annual increment falling due during the leave period. Therefore, maternity leave will not affect the service continuity of the concerned employee.

Regarding issue-B, probationary period, in employment parlance,is a specific stretch of period of time during which the character and abilities of a new employee to the role or job assigned to on his/her placement in the organization is tested or observed by the employer. At the end of the period, the employer will take a decision whether to continue his/her services or not based on his/her performance during such period.If the performance is okay, there will be a declaration to the effect that the individual has completed the period of probation successfully and confirmation on the job in writing. Otherwise,either his probation would be extended further or his services would be terminated as provided for in the contract of service. Any authorized longer spell of leave like M.L availed of by the employee during the course of probationary period would naturally shorten it and therefore the proportionate extension of the period becomes imperative.

Coming to the comments of our learned friend Mr.Saswata Banerjee, I am afraid whether it reflects the management's/employer's perspective alone. I am in agreement with him only to the extent that there is nothing in Law compelling an employer to confirm a probationer after completion of the probationary period and give him a permanent job. But, I am not able to accept that the School is free to tell the employee to be at home on the expiry of her ML just because it has interrupted the probationary period and they don't wish to employ her and free to give a service break after ML and reemploy during the next academic year. I don't think that such a stand can be substantiated both legally and ethically for it would defeat the very purpose of the Maternity Benefit Act,1961 and make a mockery of the concept of probationary status of employees.

Regarding the School's observation cited by the poster in the last one, it is none of the business of the Education Department to question the head count unless the school is aided by Govt. funds. Even otherwise, since the employee is on statutory M.L and after the expiry of the ML she is going to be working in extended period of probation, how comes the question of head count? Simply put, the school does not want to pay for the Statutory M.L.- that's all.
At times, excessive belief in Karmic Theory renders the suppressed remain docile to the core!
10th November 2017 From India, Salem
Now they say that ours is a private unaided igcse school which is run by a trust, so we dont come under the perview of the maternity act.
But as per rte we have admitted certain children.
10th November 2017 From India, Mumbai

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