Thread Started by #anil kaushik

Genpact case of sexual harassment and unfortunate suicide of AVP due to the charges of SH against him by two women employees and managementís action of his suspension has sent chilling waves among HR professionals, internal committee members and women employees across board .
After Me-too movement, the issue of sexual harassment has once again come in centre of debate but this time it has different angle. The incident has brought forward few dimensions to understand and take some lessons too from it because the senior executive who has committed suicide, has left a note behind stating that the allegations of sexual harassment against him were false and he was not given opportunity of hearing and was suspended and his wife has lodged an FIR against Top company management executives and IC members for committing the offence of abetment of suicide. The matter is under investigation. Without commenting upon the merit of the case, organisations and specially HR professionals may draw following lessons:
1-Though the complaint of sexual harassment should be taken up with due sensitivity and priority, panic button should not be pressed in all incidents. In this case, it appears as reported in media, that on the day of complaints, the AVP was put under suspension, he was not allowed to work from home and his access to his computer was also disallowed. Here the complaints, first, should have gone to IC, then it was for IC chairperson or any member as may be deputed to initially investigate in to the complaints to assess the correctness and gravity, interview the complainants in camera and if prima facie the complaints were found to have case of SH, the IC is under obligation to issue show cause notice to respondent (Harasser) with copy of complaints and documents provided by complainants asking him to reply the complaints. Though , management has powers to suspend the employee as per his terms of employment or service rules in cases of misconduct, The POSH law does give any powers to employer to suspend the respondent ( Harasser) immediately on receiving the complaint against him. The employer can transfer such person to some other location on the recommendation of IC after request from aggrieved woman employee. If the organisation has no such rules or policy or terms of employment prescribing the disciplinary procedure, drawing powers of suspension, duly agreed by employee, it may be difficult for any organisation to justify such action because it is not a case of workman who falls under certified standing orders applicable on him. The matters of SH not only involve two employees but two independent lives leaving impact on their families and society at as a whole. It can make or break.
2-Instead of preferring for redressal mechanism only having in place, Organisations also need to invest much on prevention of incidents of sexual harassment, because it is more of social evil having its deep root in male dominated society than a workplace or legal issue, by constantly coaching , training and making all aware on doís and doníts about such issues. Workplace culture has to be tuned up with zero tolerance about such incidences so that safe and dignified environment is provide to women employees but at the same time it should not be undermined that male colleagues do also have some social existence and dignity. Need to strike a balance between the two is a must. Unless charges of sexual harassment are proved, organisations must hide the identity of the respondent too as mandated by law. Nowhere law permits to disclose the identity of complainants and the respondent. Proceedings are to be held in camera.
3- There is still much confusion among employees and organisations as to what constitutes sexual harassment or sexual abuse. Workplace culture determines the acceptable behaviour to much extent. Employees should be well versed of. IC members are also not fully trained to conduct inquiries in to the complaints of sexual Harassment. The inquiry under POSH law is quite different from the normal domestic inquiry management conduct in disciplinary matters involving acts of misconduct. Organisations should prioritise to get IC members trained in this respect.
4- IC members should act impartially and judiciously. They should not be afraid of any consequences, because IC is discharging the duties by investigating and inquiring in to the charges of complaint mandated by law. IC cannot be accused of abetting the suicide of someone, merely because the committee is inquiring into the matter against him unless deviating from the laid down procedure or acting with bias or their actions or orders indicate abetment to suicide.
5- Women employees should not get discouraged or scared of such unfortunate incident. They should continue to speak up but truthfully and genuinely. Law has given the women a legal arm to guard them against sexual harassment at workplace but it is a double edged weapon. If it is used to malign someone or take revenge or meet self interest, it may harm not only that woman but cast a shadow on other genuine victims at large also.
6- Organisations should not act mechanically in such incidents and overreact just to demonstrate their sensitivity towards such matters. Every complaint should be dealt with same sensitivity and dignity otherwise in long term organisations may have to bear heavy cost in terms of image and employer branding.
7- There are judgments of Supreme Court where it is held that management officers are be held responsible for abetment to suicide merely on the note of deceased unless some other material evidence and facts exist and co-relate confirming abetment. However, it depends on facts and circumstances of each case.
26th December 2018 From India, Delhi
The Write-Up posted in CiteHR on 26.12.18 "captioned " Lessons From Genpact Sexual Harassment Case By Anil Kaushik" contains certain Anomlies, aberration and Factual Errors as are noted below:
1. Internal Committee constituted by Employer under Section-4 of the "Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013 has "no locus standi" nor "Obligation" whatsoever to issue a "Show-Cause " the Respondent with copy of Sexual Harassment Complaint or Allegations asking him to reply to the Complaints/Allegations as written in Lesson-1 .
The Internal Committeee is not purported to be a Disciplinary Authority

The Employer has the absolute, Non-Negotiable, Prerogative, Priviledge, Right to intiate Disciplinary Actionagainst any Acts of Misconduct within the meaning of the Standing Orders or the Services Rules which are framed under respective Laws authrizing the Employer to do so. For and on behalf of the Employer, the Occupier or any other Agent commonly referred to as Management, the Manager, the Punishing Authority do initiate Disciplinary Action including Issuing the Show-Cause Notice/Letter or Charge-Sheet or Explanantion Letter
i) informing him/her of the "allegation" leveled /reported against him or her and
ii) asking/directing the concerned Employed Person to submit Written Explanation
as to Why necessary further Disciplinary Action should not be taken against
him/her for the alleged act of Misconduct and
iii) on receipt of the Written Explanation /Reply in defence or otherwise,
iv) the SH Complaint with connectd Documents is forwarded to the Internal Committee addressed to the Presiding Officer to act according to Sectios- 9, 10, 11 etc of the SHWW Act 2013 and the Rules framed thereunder and gazetted on 9.12.2013; and
v) Forward/submit teir Definite and Conclusive Findings for further Disciplinary Action to be determined by the Employer (the Punishing Authority)
The Employer decides on Quantum of Proportionate Punishment or Condonation as the Findings may be. The IC Findings is whether the SH Complaint was Found True or Found False , Frivolous and Malicicious with reasons supporting the Findings.
2. Not only the Aggrieved Woman-Complainant can Lodge/submit her SH Complaints, the aforesaid Act provides for other Persons so authorized to subit , on her behalf her SH Complaint for neceesary Action including Inquiries.
3. Now that SHe Box-an On-line e- Portal- has since been launched in Nov 2017, any SH Complaint can be Registered on-line and the Ministry of Women & Child Development, the Monitoring Authority is active and shall forward the Registered SH Complaint for necessary "Redressal" as stipulated in the Act of 2013.
In view of the the aforesaid, the " Opinion" of the Author of the Writeup that ........
......the Complaints, first, should have gone to IC,
.....then it was for IC Chairperson or any member as may be deputed to
.... initially investigate in to the complaints to assess the correctness and gravity,
.... interview the complainants in camera and
.....if prima facie the complaints were found to have case of SH...".
is invalid and and travesty of Justice. The Internal Committee Presiding Officer is titled/addreesed as such whereas the Local Committee has the Chairperson.
The IC is an Independent Legal Entity created to conduct their own Proceedings in accordance with the Principles of Natural Justice without Need to assess the "correctness" and or "gravity" of the SH Complaint/Allegations before the Committee proceeding with " its Prime Duty & Responsibility to " ascertain the facts of the SH Complaint"; there is No Interview as such made out, in camera for the entire IC Proceedings ought to be /must be in line with Principles of Natural Justice hwen may be either the Aggrieved Woman-Complainant and or the Respondent insist on Examining and or Cross-Examining their respective Witnesses and or Documentary Evidemce.
Every Employer is duty-bound to constitute the IC under Section-4 and File Annual Report of action taken under Section-22. Hence, the " exhortation", as it were, ..... that "Instead of preferring for redressal mechanism only" appearing in Lesson -2 is uncalled for.
Employers have No Chioce, No Exemtion but to constitute the IC. Howere, no stone should be left unturned/ No efforts be spraed to seek "Collaboration" of all the stake-holders in the Orga/Esta towards Co-Creating a "Safe and Secure Workplace Where No Women Shall Be Subjected to Sexual Harassment and More Importantly the Fundamental Rights of Women to Live with Dignity is Protected, Honoured in Letter and Spirit, faithfully and properly.
The Acts which shall constitute Sexual Harassment and the Circumstances, Likly to lead to /causing SH are Crystal Clear as stipulated in the aforesai Act 2013 and though "illustrative' and not "exhaustive"
Sh means and includes any act or Behiviour, veral or Non-verbal or otherwise Which is or are Unwelcome and or Humiliating to her likely to affect her Health and Sense of Safety.
The definition is almost all encompassing/ covering any Act etc which theAggrieved Woman defines as or describes as Unwelcome and or Humiliating to her and SHE is now made aware that any False, Frivolous and Malicious SH Complaints /allegation reported/lodged by her and found to be so by the IC shall be punishable, shall be an Offence, too n cthe evnt an Appeal before the Judiciary is filed and the Judciciary concludes so considering the ?materials -on-record."
This is for reveie /consideration. Risks on the part of few of the Readers of the Write-Up is not ruled out who may "Learn" /internalize factual error
Kritarth Team of Spl Educators,
30 Dec 2018,
30th December 2018 From India, Delhi
Dear Sir,
thanks for pointing out technical "errors". Having no intent to enter into any argument on the issue on public platform, As you are entitled to have your own opinion and understanding on the subject, I should also be allowed to have my opinion and understanding on the issue raised.
regds
2nd January 2019 From India, Delhi
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