Labour Law & Hr Consultant
Management Consultancy
Sr. Hr Executive
Insolvency N Gst Professional
Sankar Shome
Gm - Hr & Admin
+1 Other

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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.

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.

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.

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!

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.
From India, Mumbai
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.

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

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.
HR & Labour relations Advisor
Navi Mumbai

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.

From India, Kolkata
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?

From India, Mumbai

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