Umakanthan53
Labour Law & Hr Consultant
Manojkamble
Sr. Hr Executive
KK!HR
Management Consultancy
Sankar Shome
Gm - Hr & Admin
+2 Others

Thread Started by #Anonymous

Hi,
I come under factory act. A misconduct of Theft was committed by one of my employee against which a customer has given a written complaint for which the management of the company had issued him a show cause notice and later the employee was issued charge sheet and a departmental enquiry is going on. Where after knowing about this he alone from the employement has approached Union and now while he working he is talking rudely with management representative, talking in foul language, working slowly just as instructed by the Union representative. It is a clear case of harassment and also scouting other employees go join the Union as even his brother is in the employment but yet he has not joined the Union.
Please suggest what can be done against the employee as he is creating a tense atmosphere in the company.
I have issued him several letters regarding uninformed absenteeism and working slowly and also using mobile phone during working hours.
He keeps taking breaks to fill his water bottle, to go to toilet at least 10-15 times.
Please suggest what can be done till the outcome of the enquiry is does not come.
9th December 2017 From India, Mumbai
Dear Dharam,
1. As you have mentioned Inquiry is on then you can try to quickly end-up the enquiry and can terminate if found guilty.
2. As you already have issued several warning letters to him then you may evaluate his performance in writing and if it is not suitable then give him time to improve in writing such as for 3 months and after that also if performance is not approved you can terminate his service.
9th December 2017
Employees when cornered always join the union.
Here first important thing is to complete the enquiry quickly following principles of natural justice,Do not allow delays and adjournments etc.
Document all the acts of misbehaviour of employee-late coming foul language etc
You can issue hi further warnings etc but then employee will try to project these issues as witch hunting.
The enquiry needs to be completed fast.
Adequate punishment can be given if evidence is found in the customers complaint which can easily include dismissal.
The environment of the factory and likely union reaction can be factored in.
9th December 2017 From India, Pune
Dear Dharam,
It would have been better for the readers to understand the entire problem in a right perspective, had you explained the circumstances leading to the complaint of theft against the employee by an outsider viz., the customer. Whether the complaint of theft was name-specific or general without specifying any one of your employees? Have you conducted any discreet preliminary enquiry into the complaint before charge-sheeting the particular employee? If there was prima facie, what prevented you from placing the employee under suspension pending enquiry? Theft is a serious allegation casting aspersion on ones character and it might have caused serious and negative impact on his normal behaviour. Your allusion to his sudden union membership after being charge-sheeted is indicative of your organization's ill-disposition towards union of employees and it could have been reflected by the superiors or supervisors who directly handle the employee every day. There is no smoke without fire. No management would tolerate such freaky misbehavior of an employee who is facing a definite charge of misconduct and ask for suggestions from outsiders. I suspect that something fishy behind the complaint and to cover up this, the particular employee has been made a scapegoat - only the wearer knows where the shoe pinches!
10th December 2017 From India, Salem
Dear Sir, My experience shows this to be an act of desperation of the delinquent employee. The employee being accused of theft and the enquiry is in progress, probably may be feeling the heat and in his frustration becomes an activist of the union, misbehaves with senior officials and creates/spreads disaffection around, perhaps in the impression that this would compel management to bail him out. This is the time for Management to react and show that the limits of tolerance have been breached. One step could be to expedite the enquiry, secondly consider suspending him and a second disciplinary action could be initiated.
10th December 2017 From India, Mumbai
Mr.KK!HR,
I don't deny such a possibility. But the extent and the nature of the misdemeanor described, his new association with the union, the so-called allegation against the union representative's instruction to do so and the management's failure so far to muster the moral courage to place him under suspension apart from framing fresh charges on such undesirable behaviour smacking of further serious misconducts in utter defiance of the rules of discipline compel one naturally to take a different perception. If any management hesitates or fails to impose strict rules of discipline in the face of such continued misbehaviour of a single employee out of its fear of retaliation by the union or others, there must be some other reasons. That's the logical conclusion for my above response. Let the poster come out with full details, if he is willing.
10th December 2017 From India, Salem
Mr Umakanthan,
I have seen few employees are never members of any union.They shift allegiance to different unions as per their whims and fancy.
Unions also use such employees as an excuse for taking on the management.
Many managements lack moral courage to be proactive when union comes into picture.
Unions will bring out many skeletons from the cupboard.
That could be one reason why an employee accused of theft has still not been punished or even blamed by due process of enquiry.
Hesitancy of action is visible.
Only querist can give further details on the whole situation in his establishment.
We can only make educated guesses and read between lines.
If querist gives full facts, better advice can possibly be given
10th December 2017 From India, Pune
Very helpful inputs from the learned members to enable you to take a considered view in this case.Two factors need to be examined to nail the issue.
1) As Mr. Umakanthan pointed out whether there is evidence that can be acted up on to prove the charge of theft.It is important to prove the ownership of the property stolen but mere complaint is not enough. If your evidence is week, even if you dismiss him, he will in all probability be reinstated by the courts.That will be a huge embarrassment for the company.
2) If the allegations are backed by solid evidence, then expedite the inquiry and even suspend him pending inquiry if his presence is hostile to smooth functioning but note that you have to pay him subsistence allowance during the period of suspension.
B.Saikumar
HR & Labour relations Advisor
Navi Mumbai
11th December 2017 From India, Mumbai
After going through the thorough matter, my opinion is as follows:
01. If you have sufficient proof of theft, then you can terminate him from the service after going through thorough inquiry , but you have also to lodge a complaint with the local police station as because the theft is a congnizeable office which should come under under 379 IPC.
S SHOME
AGM - HR & ADMIN
JVL OIL REFINERY,
HALDIA, WB.
15th December 2017 From India, Kolkata
#Anonymous
Dear Mr. Umakanthan,
I completely Understand your thoughts and would like to elaborate the details so the problem is understood and a logical solution is suggested by the esteemed members of this community.
But before understanding the problem a little background of my business is necessary.
I have a Retail Outlet (RO) (Petrol Pump) and I come under Factory Act. As petrol and diesel comes under essential commodity.
A customer visited my RO to fill fuel in his vehicle worth Rs. 200 and my employee filled Rs. 200 fuel and charged him Rs.300 on his debit/credit card. The customer is regular at my RO and being in a hurry on that particular day he refused to take his customer copy of the receipt saying I will get it on mobile as confirmation and left the outlet trusting the reputation of my RO as we are almost completing 60 Years.
After learning from the SMS that he is over charged he again visited the RO and spoke to me regarding his issue on which I called my employees and he pointed at one of the employee who had committed the theft. I gave a chance to my employee as on if it was a mistake please return Rs.100 to the customer and the matter would end there on which he refused to agree and said he has not committed any theft. I saw the recording of the CCTV and it clearly shows that the customer was on a bike with his daughter and Rs.200 fuel was filled and I recovered Merchant copy of his swipe which was for Rs. 300 and it was a theft which was proved by CCTV footage and I also have submitted the footage.
The management then issued a Show-Cause notice to the employee and the employee went to a union and became a member after which he replied to my show-cause denying the theft.
I had no choice but to issue a charge sheet and on the other hand I have also given a written complaint to the police regarding the incident.
Enquiry is going on and the employee is using tactics to harass the management by many ways which are below: -
1. Talking on the mobile and carrying mobile to the Petrol Island which is prohibited by PESO.
2. Making false allegations against the employee.
3. Scouting for his Union membership to others who are new to the employment.
4. Taking unauthorized leave and providing with ESIC registered hospital which are false.
5. Talking rudely to the management representatives.
6. Taking frequent breaks for water, urinating, lunch and working slowly.
7. Not accepting any letters given to him by hand.
This employee is creating tense atmosphere at the RO.
The enquiry is in progress and I am going to depose on the next date.
What is the further action suggested by you all?
15th December 2017 From India, Mumbai
The above events show you to be very tolerant of the errant ways of the delinquent and this cannot be tolerated any further, particularly the indulgence in talking on the mobile and carrying mobile to the Petrol Island which is prohibited by PESO.You may suspend him with immediate effect , issue charge sheet cum inquiry letter (i.e., by appointing inquiry officer also) if he refuses send it by registered post and expedite both the inquiries. Such pernicious fellows cannot be tolerated in a small set up like yours.
15th December 2017 From India, Mumbai
You need to act swiftly by conduct of inquiry and action before he infects other employees also.
Now one question I have is when you use the swipe machine money comes to your company a/c, so extra amount of Rs100 must have got credited to your RO a/c.So refund is not an issue I presume anyway.
You have got evidence to suspend him and that will keep him away from the RO premises.
Non acceptance of letters can be solved by sending him Speed post letters for proof of delivery.
Since your RO may not have time for such lengthy enquiries, w/o delay suspend him and complete the enquiry and as per findings take action.
Is your specific RO unionised or is it a general union of RO employees
Delay in this case is neither desirable nor helpful in any way and will affect your RO.
15th December 2017 From India, Pune
Dear Dharam,
In my career as a State Government Official for about 33 years, I worked as a Deputy Controller of Legal Metrology for about 8 years. Though it is long back falling in the early 1990s , still I do remember how the retail outlets of Petroleum Products have been run with the employees and particularly in big cities where the sales are very high during peak hours, the conduct of sales and service in an orderly fashion would be very difficult for employees as well as supervisors/managers who supervise them. Therefore, in most of the outlets, pump operators/salesmen are permitted to collect the cash from the customers directly and finish the transactions then and there during their shifts and at the beginning and end of the shift they calculate the total sales during their shift from opening and closing meter readings of their respective dispensing units and hand over the total cash collected to the cashier. When sales are effected through card swiping, the retailers' copies are kept by them and submitted along with the cash at the end. If the card was swiped for a higher amount, the money would have come to the establishment only. Therefore, the only chance of fraudulent practice could be selling the proportionate quantity of the product to the value of the excess amount collected to some other customer without bill. Therefore apart from the CCTV footage, you ought to have verified the total quantity sold by him during the shift and the total cash remitted by him adding up the card sales effected by him on that day. Then only, you can come to the conclusion of misappropriation or theft.
This apart, from your further post what one can easily infer is that there is no effective control over the employees in your establishment. Union of employees can not have a say in the matter of maintenance of organizational discipline. Unless and otherwise there are some loose ends in the method of sales and service, payments to employees and the manner of over all work discipline as well, no possibility of tolerating such misdemeanors and unbecoming conduct of an individual employee.
Be firm in the matter of maintaining discipline.
15th December 2017 From India, Salem
Proving theft or misappropriation of Rs100 may be difficult.
If swiping was done money would have gone to RO bank a/c
Proving that he adjusted this Rs100 by giving more petrol etc and pocketed the cash may be difficult.
15th December 2017 From India, Pune
#Anonymous
Mr. Nathrao,
Employees and Employers of petrol pumps across the country follows one simple rule. We take the money from our employees as per the meter reading of all the dispensing unit. If he has taken Rs. 300 for which the customer has only got fuel with Rs. 200 then its a theft and it is also seen in the CCTV that he has filled only Rs.200 worth of fuel.
15th December 2017 From India, Mumbai
Mr.Dharam Kapadia
I understand the possibility of theft/misappropriation if the transaction between your pump operator and the customer took place in the form of cash.But in this case, the customer made the payment through his debit/credit card in which case, there could be no cash transaction and the amount must have been credited to the company's account in which case, how it can be theft?
B.Saikumar
HR & Labour Relations Advisor
Navi Mumbai
15th December 2017 From India, Mumbai
Mr Dharam,
We hope that the enquiry is completed fairly as fast as possible and just punishment imposed.
The problem of proving that employee has taken Rs300 from some random customer and tried to adjust the amount is difficult to prove regardless of CCTV.
Can CCTV show how much cash was being exchanged?
While advising on any issue, I try to visualise what could be the counter answer from the adverse party and see what we have to prove our case.
Not withstanding anything, issue here is now whether you can keep a defiant employee on your rolls??
He is now going out of his way to create problems.
HR policy and stricter administration will be needed to prevent other employees from getting afflicted by this disease .
16th December 2017 From India, Pune
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