Can we terminate any union staff. He is not coming to office since last 8 months. Every month he is sending letter from ESIC that he is not well. Now management want to terminate him. Can we do this.
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There is no clarity regarding letter from ESIC, ESIC will issue a leave certificate to employer every month if employee was undergoing medication. Every month ESI will extend leave according to his/her health. Once doctors in ESI declare fitness and rejoining they will certify to join duty in leave form. The employee will get salary from ESIC till his joining back to work. Employer has to show ESI in their attendance registers.
ESIC wont give any letter to employer regarding leave, they will issue leave certificates.
But there were clauses till how many days a person can attain Medical leave from ESIC.
Ex: For sickness benefit maximum of 91 days in a year. Kindly refer ESI portal.
Meera Sharif.
Even i faced the same situation with a Union Member, generally ESIC people will give the leave certificate based on the condition of the Employee, Maximum they will give upto 7 -10 days, after that if illness is not cured then they will renew the leave other wise they will give the fitness certificate .
In our case worker he is the union leader and he used to get leave certificate from ESIC Dispensary every week, During the leave period he used to participate in union activities actively.
Then we gave the warning letter to him saying that the misuse of the ESI leave and asked him for the explanation and also informed him that we will take a second opinion on his illness from ESIC and leave certificates issued by the authority.
Then worker took that letter and showed it to the ESIC doctor, immediately he called us and we asked them to give the proper and genuine report to avoid the Escalation of this matter & Second Opinion from ESIC Director, Then they gave the correct fitness report, Employee started working.
Every thing got screwed up once we follow the procedure.
Dear Friend,
In Addition to my previous post, termination should not be done instantly as your management ask you to do.
Please follow the procedure.
1) Issue the Memo followed by the charge sheet (Misusing the ESI Leave)
2) Suspend and conduct domestic inquiry
3) Pay the suspension allowance
4) At the same time get the evidences
5) Basing on the domestic inquiry issue the award.
Yes you can terminate him ,on continuous ill health under sec 2 (oo) of ID Act.
Dear Meera,
Employee got accident in 12th Feb 2019. And from Feb onward we are getting letter from ESIc to Extent his Leave for 1 Month. Now its almost 9 month he is not coming for Work.
Now Management want to terminate him immediate . But i want to know can we do this. Or else we have to give 1 Month Notice Period then terminate. As he is Union Staff. I want to Know proper process.
Dear Thakur,
We should not terminate employee who met with accident on humanitarian grounds, Please check whether the employee is temporary disable or Permanent disablement, If it is genuine case help him in getting the benefits from esic.
Even if you terminate with one month notice, he can challenge it in labour office judgement will come under his favor only.
Please go through the below ESIC Guide lines:
Sickness Benefit(SB) : Sickness Benefit in the form of cash compensation at the rate of 70 per cent of wages is payable to insured workers during the periods of certified sickness for a maximum of 91 days in a year. In order to qualify for sickness benefit the insured worker is required to contribute for 78 days in a contribution period of 6 months.
1. Extended Sickness Benefit(ESB) : SB extendable upto two years in the case of 34 malignant and long-term diseases at an enhanced rate of 80 per cent of wages.
2. Enhanced Sickness Benefit : Enhanced Sickness Benefit equal to full wage is payable to insured persons undergoing sterilization for 7 days/14 days for male and female workers respectively.
(c) Maternity Benefit (MB) : Maternity Benefit for confinement/pregnancy is payable for Twenty Six (26) weeks, which is extendable by further one month on medical advice at the rate of full wage subject to contribution for 70 days in the preceding Two Contribution Periods.
(d) Disablement Benefit
1. Temporary disablement benefit (TDB) : From day one of entering insurable employment & irrespective of having paid any contribution in case of employment injury. Temporary Disablement Benefit at the rate of 90% of wage is payable so long as disability continues.
2. Permanent disablement benefit (PDB) : The benefit is paid at the rate of 90% of wage in the form of monthly payment depending upon the extent of loss of earning capacity as certified by a Medical Board
(e) Dependants Benefit(DB) : DB paid at the rate of 90% of wage in the form of monthly payment to the dependants of a deceased Insured person in cases where death occurs due to employment injury or occupational hazards.
Jayendra,You are right but if management want to terminate then we have to do. Thank you for sharing ESIC Guide Line
Under Industrial Disputes Act, 1947 some protection is granted to 'Protected workman" for altering to the prejudice of such protected workman, the conditions of service applicable to him before commencement of such proceedings or by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Protected workman in relation to an establishment , means a workman who, being a member of the executive or other office bearer of a registered trade union connected with the establishment, is recognised as such in accordance with the rules made in this behalf. Pl refer to Section 33 (3) and (4) of the Industrial Disputes Act, 1947 and also Rule 61 of the Industrial Disputes (Central), Rules, 1971.
The the conditional immunity to union member as protected workmen is available only when there is a proceeding existing before an authority under ID Act.
What is the process if he is not covered under ESI? means if he exceeds the maximum ceiling of 21000? how we can terminate him?
If Management could get any documentary proof / photo evidence that the union member has been attending to activities of union or personal business or attending to other celebrations/ meetings during his ESI leave, then issue him a letter with a copy to ESI about his active role in public when he was ESI sick leave and can direct him to report for work within a specific date, failing which he may be informed that he is not interested in the job and accordingly he may be deemed to left his employment. Then issue him a charge sheet and conduct a domestic enquiry, adducing evidence by a presenting officer, and decide the case accordingly.
First of all agreed with Meera that ESIC issued certificate instead of letter. The Letter which is mentioned here must be scrutinized by HR department of the establishment from ESIC if found fake then go with the process issue notice chargsheet him conduct inquiry then terminate him.
Information is required
1)whether the employee met with accident while commuting between home and workplace or not.

If not

2) Management has the option to advise the employee to undergo medical examination if we have a company doctor.
3) Otherwise, he may be advised to undergo the medical examination in govt hospital / independent doctor and obtain the opinion.
Accordingly, if he is found unfit for any gainful employment in the organisation then only termination can be thought of. However, a notice can be issued mentioning the absenteeism of the employee and its impact on the business. depending on the reply and facts with regard to the health condition of the employee. Call may be taken by the management.
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