umakanthan53
5959

Dear Mr.Varghese,

I agree with you so far as sec. 12(1) is concerned. In this case, we are not sure whether the MBF Act,1961 is applicable to the establishment. In addition, we had to discuss the pros and cons of a discharge under the contract of employment. So my insistence is only on sec.12(2)(a) for the sake of an amicable settlement.

As per sec.5(2) of the MB Act,1961, the 80 days service should be reckoned backwards effective from the expected date of delivery only.

From India, Salem
varghesemathew
909

As posted by Mr Umakanthan the applicability of MB Act in this case is doubtful.
Now for academic interest ,sec 10 of the Act says that a women suffering from illness arising out of six conditions are entitled for leave with wages @ maternity benefit for a maximum period of one month. The word ' or' is not used inbetween the conditions.
In my opinion a pregnant women if taken 30 days leave for sickess out of pregnancy , is not eligible for such leave again for sickess out of miscarriage ,delivery or MTP.

From India, Thiruvananthapuram
tajsateesh
1641

In all this melee, where has Mr/Ms. Anonymous vanished after posting the Query on 28 Sept?

Everyone have been taking their time to give their suggestions/opinions making different assumptions in the lack of complete details from the Anonymous.
If his/her query has been answered, the basic courtesy of acknowledging it also seems to be missing.

I am not sure IF it's worth spending more time on guiding someone who doesn't value other's time.

Rgds,
TS

From India, Hyderabad
Anonymous
Hello Mr Tajsateesh,

I am reading the comments and different acts and rules honorable members have suggested. The second comment on the post is mine elaborating the topic further more.

In case if I confront the employee to put down resignation papers, since within the first week of joining they took 3 sick leaves followed by 2 more in the next week and none consecutively, makes it clear that they were concealing or not disclosing the fact during the interview and they were looking for a work from home kind of job which is why they did not disclose their unavailability to work or manage ppl.

I am only thinking I do not have any proof that they disclosed it or if they came to know about their health in past month itself and hence asking them to resign may turn things sour. And if they dont resign then can i even terminate them after asking them to resign?

From Canada, Vancouver
Anonymous
Dear Mr Umakanthan, Will the MB Act be applicable in this situation since its an IT firm with less than 10 employees?
From Canada, Vancouver
tajsateesh
1641

Nice to see your response & glad to know everyone's time is not going waste Anonymous.

Like some other member mentioned above, the performance related aspects--which includes taking frequent leaves that can effect work--may not be clubbed with the Maternity issue.
Since you don't have any proof for whatever has happened so far--to strengthen your position from the legal perspective, suggest begin to send mails of whatever you wish to convey to her from now onwards--that will force her also to reply back thru mails......thereby compiling evidence.
IF she is of the over-smart type who replies verbally to whatever is asked in-writing [to avoid building-up evidence], suggest take those inputs & write back to her summarizing whatever was discussed....what you said & what she said.
That way, you can build-up the evidence for the whole situation--driving it in the direction YOU wish it to take.
Hope you get the point.

All the Best.
Rgds,
TS

From India, Hyderabad
Anonymous
Thank you for all the detailed suggestions everyone.

I think I will keep a track of employee's hours and his ability to co-ordinate and work atleast a few hours with other employees. Only two of her sick leaves remain if she takes that and/or calls to say that she wont be able to work when the rest of the team members are working I will get that in writing. This will show her inability to communicate/stay in touch with other employees. Once i get enough evidence, I will ask her to put down her papers after two or three such incidents and get them in writing.

In our case primarily only Shops and establishment act is applicable. I will have to find out if maternity benefits are applicable for establishment with less than 10 ppl. Also, I read posts and was under the impression that termination during probation does not require lenghty process of documentation for poor performance and issuance of warnings and suspension. That process is only required once probation is completed.

Can a clause like "Your services shall be liable to be terminated in case you are found physically or mentally unfit to execute the employment duties. The company reserves the right to require you to undergo medical examination." can be added for future avoidance of such issues? Also, is asking questions about personal health and family is acceptable as per laws? Wouldnt it be a basis of discrimination if hiring decision is made after asking such questions?

From Canada, Vancouver
Madhu.T.K
3809

The terms " physically and mentally unfit to execute the duties" should be avoided because it is relative term and not quantifiable and you may have to prove that the employee is 'mentally' unfit to do the work and that is not possible always. Better you can use, 'your services shall be terminated without notice and without assigning any reason thereof'. In such cases termination order will not speak the reasons but only says that you are terminated as per contract of employment. It can be due to non performance, it can be due to failure of vendors to give projects, or it can be downsizing. Only thing is that in the letter terminating the employee.
From India, Kannur
umakanthan53
5959

Dear questioner,

If your establishment has not employed 10 or more employees in total in the past or as of now, the Maternity Benefit Act,1961 will not be applicable and as such you do not have the legal obligation to extend the maternity benefits.
However, terminating her services as per the conditional clause in the orders of appointment on the grounds alleged without giving her a reasonable opportunity in accordance with the principles of natural justice is not advisable as suggested by other members.

As a format, you can simply mention that if the performance of the employee is not satisfactory during probation period including the period if any extended, the employer has the right to terminate the services of the probationer with/without notice and assigning no reasons thereof. This is called discharge simpliciter or simple discharge.

However, it can also be questioned by the aggrieved employee in a Court of Law. Therefore, to substantiate such a decision, it is better to fix the parameters of performance, behaviour etc of the probationer and document them well.

From India, Salem
Anonymous
Can the employee's inability to perform daily tasks like communicating with other team members, attending meetings and taking too many planned leaves during probation, be a parameter of poor performance? Today again the employee has emailed for two planned leaves for this month...

As per guj shops n establishment act employees are given 7 sick, 7 casual and Every employee who has worked for a period of two hundred and forty days or more the year shall be allowed during the subsequent year,leave with wages for a number of days. calculated at the rate of oneday for every twenty days of work performed by him during theprevious calendar year.

From Canada, Vancouver

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