Anonymous
Hi, We are a small business with less than 7 employees and We were looking for urgent hiring in IT, we hired someone with 4.5LPA n 6 yrs exp on a package of 11LPA and work from home. She was hired for a senior position since we have a new project coming n we needed someone senior. Her first day was aug 25 and today is sep 27. She has already taken 5 sick leaves out of 7sick7casual15vacation. It has only been a month. She wanted more sick leaves this week and since she had already used 5 she in less than a month she revealed to us that she is pregnant. Due to her leaves in the first month itself, my work is getting compromised. Since it is work from home even without knowing her pregnancy, all our employees are allowed flexible work hours. But now she called us yesterday n told her that she may or may not be able to work daily since she has depression n anxiety due to pregnancy.

It hasn't even been a full month and I only hired her because we have a crucial project where we needed her. I cannot fire her for being pregnant but I feel like she should have disclosed this since we clearly stated that we need a senior to train and be a senior supervisor for all juniors. Given her health she clearly wont be able to fulfill the business requirements.

I do not want to be mean and cruel but can we fire her based on her inability to fulfill business requirements that we clearly told her before. Please guide what we can do.

From Canada, Vancouver
Dear member,

You have employed the woman employee on 25-Aug-2021. Therefore, hardly a month is passed. Have you issued her the appointment letter? You say that she is on probation. In that case, when her probation period will complete. Have you included the separation clause in the appointment letter and if yes, then what are the conditions if the employee is on probation?

The employee is pregnant. However, did she disclose this? Has she given any formal intimation to you?

You have the following options: -

a) Talk to her and find out the condition of her health. Since she suffering due to depression and anxiety, on medical grounds, ask her to put up a letter of resignation.

b) The second option is to serve her a show-cause notice on account of poor performance. If the reply is not satisfactory, then you can terminate her services.

Conditions of Maternity Benefit Act, 1961 (with an amendment in 2017): - Maternity benefit in India is mainly governed by the Maternity Benefit Act, 1961 that applies to all shops and establishments with 10 or more employees. Those women who work in factories with 10 or more workers are given maternity benefits as available under the Employees’ State Insurance Act, 1948. Since you do not employ 10 or more employees, the act does not apply to your company.

Secondly, the same act provides that a woman will be paid maternity benefit at the rate of her average daily wage in the three months preceding her maternity leave. However, the woman needs to have worked for the employer for at least 80 days in the 12 months preceding the date of her expected delivery.

Since the woman employee has not completed 80 days of her employment, provisions of the said Act do not apply to her.

To know more about these conditions, you may click the following link:

https://www.livemint.com/money/perso...655754106.html

If you wish to download a copy of the Act, then you may click the following link:

https://www.citehr.com/581449-matern...tive-date.html

So hurry up! You can very well close the case in this week itself. Do not drag it any further.

Thanks,

Dinesh Divekar

From India, Bangalore
Anonymous
Dear Mr. Dinesh,

Thank you for sharing your valuable knowledge with me. The employee was issued an appointment letter with the clause "On affirmative acceptance of this offer, a separate Probationary Appointment Letter shall be issued to you for this position. Your probation period shall be 8 months. After probation you shall be issued a confirmation appointment letter. During probation, the company reserves the right to terminate the employment without any notice if your performance is not deemed satisfactory. In case the employee wants to leave the company during probation period, he/she is required to give one month’s prior notice to the management." Now that I see the documents sent to the employee for signature have been signed, but i forgot to attach seperate probationary appointment letter as mentioned in the clause. The seperate probationary letter basically reiterated everything in the offer letter.

Can i provide her a seperate probationary letter now saying that as mentioned in offer letter, i am issuing her seperate probationary letter that i forgot to attach previously. Although conditions of probational seperation are clearly mentioned in offer letter.

The employee is pregnant. However, did she disclose this? Has she given any formal intimation to you?
No. The employee took 5 sick leaves out of 7 for the year before 20 aug i.e. within first month of her joining. Only yest when she needed more leaves she called her reporting manager to verbally inform that she has doctor appointment tomorrow for her pregnancy and that she is pregnant. And she may or may not work the day before her appointment since lately she is depressed and anxious.

I agree that during interview we did not ask her personal question like if she is family planning because we did not think about it but now it seems like she only joined us because we are a small business with work from home options n flexible hours.

Frequent absence and misuse of flexible hours i.e. working 5am when entire team is not working is not appropriate. Her position requires her to update business analysts and communicate, join meetings and work with other employees. She cannot work at say midnight and say she is pregnant n depressed so we should allow that. Can she do that?

I was looking to train her for 2-3 months and then ask her to supervise and train junior but clearly she will not be able to fulfill that given her health. I am a very small business owner and i dont have enough team to compensate for her work or hire another employee and pay her too.

Can i terminate or ask her to resign if her performance is affected?

From Canada, Vancouver
This employee being an employee in senior level will not get protection of labour laws. But when you prepared the appointment order (separate probation letter is not required though) you have committed a mistake to include a sentence that during probation your services shall be terminated without notice and assigning any reason. Since you have mentioned that service shall be terminated if performance is bad, then you will have to grant her an opportunity to be heard and, obviously, an opportunity to improve her performance. This will take time. You may be having quantifiable results of her performance but that will not serve when you terminate on the ground of poor performance because a termination order due to poor performance is a stigmatic order and that may be challenged saying that she was not given an opportunity to defend the charges. In a period of one month it is very difficult to assess the potentials of an employee.

Now the only way is to have a open discussion with the employee and say what you expect from her or why was she given the offer and the way in which the things are going now. You can make her understand that she was hired basically to take care of the project in pipeline and if she is expecting to take more leaves or expecting more flexible timing, it will not be feasible for you to keep her in service. You can finally ask her to put paper. Under normal circumstance she will agree.

From India, Kannur
Hello,
Further to what Dinesh Divekar & Madhu have suggested, suggest focus on her depression & anxiety issues rather than her pregnancy--ask her to submit her resignation mentioning these reasons instead of terminating her. That's always safer. Many employees get smarter once they get well--this lady might as well say company terminated her for all the wrong reasons once she passes this phase of life.

Coming to your line "I do not want to be mean and cruel"--there are situations when one needs to think thru the heart & situations when one needed to think thru the head. Never reverse your thinking....which leads to the wrong actions.
Had this lady been transparent in Aug, 2021 itself, MAYBE she deserved some empathy & 'thinking thru the heart'.
You have not mentioned which month is she in the term--if she was >1 month in Aug, chances are she knew about it even when you offered her the job with all the criticality of the position explained. Then all the more a reason to take tough steps--keeping the legalities in mind like already suggested by Dinesh & Madhu.

And begin to look for a new person ASAP--when hiring women, make questions about family background, marraige or kid plans a part of the Interview process.
I have had my 100% workforce working on the WfH model since 2016--unlike the rest of the world since last year--and
I never miss to get to know about the family situations [here it's pregnancy, but there can be situations where the prospective employee has family issues.....with husband, in-laws, etc] that surely CAN effect the work.

All the Best.
Rgds,
TS

From India, Hyderabad
The poster seems to have raised the question from Canada and if she were employed in Canada, the issues raised by her have to be in the back drop of the labor law of Canada only. No use of answering in the context of Indian labor laws.
From India, Salem
I have noticed that Umakanthan.
The most probable scenario seems to be: the Company is in Canada & has hired an Indian working from home in India--pl see the references to salary figures in LPA.
Such hiring is pretty common in IT sector.

Not withstanding the above, my focus was on the human nature & response perspective--there are many better experts in CiteHR to suggest on the legality issues than me. And I guess human nature would be by & large the same all over the globe....with minor differences based on the local culture.

Rgds,
TS

From India, Hyderabad
Thank you, TS, for correcting my mistake.
Whatever the hierarchical position of employment, an employee is an employee only and the conditions of employment cannot be antihumanitarian or inconsiderate just because he or she happens to be out of the purview of labor law. That's why certain labor laws like the Maternity Benefit Act,1961, the Payment of Gratuity Act,1972 applies to all paid employees alike. At the same time, when the performance of the employee is not conducive to the purpose of his/her appointment, the hardships faced by the employer cannot be simply brushed aside on humanitarian grounds alone and the employer cannot be found fault with if he tries for a decent and peaceful separation in a both-gain atmosphere as suggested by you all the learned people.

As rightly observed by Mr.Madhu, the discharge simpliciter clause in the contract of employment shall not be couched in a language indicating a stigmatic connotation to the termination is the ratio decidendi of the Apex Court in several judgments including the recent one in 2020 viz., Vijayakumaran.C.P.V v Central University of Kerala. That apart, now it is known to the employer that the employee is pregnant and her frequent sickness due to pregnancy would be a continual interruption to carry out her job even at WFH. At this stage, it would be unlawful to terminate her services as per sec.12 (1) of the MB Act,1961 even after a formal enquiry and her maternity benefits cannot be normally deprived of as per the provisions of sec. 12(2)(a) if the Act is applicable to the establishment..

Therefore, it is better to initiate an open negotiation with her to put down her papers with the employer's assurance to the payment of her maternity benefits later and waiver of notice condition.

From India, Salem
She is not entitled for maternity benefits u/s 5 as she has not worked for 80 days. She can take 30 days of leave u/ s 10. Ban on dismissal is only when women on leave as per the Act.
From India, Thiruvananthapuram
The 30 days leave under section 10 applies only when she has already utilised 26 weeks' maternity leave and it shall not accrue just because she is pregnant. Correct me if I am wrong.
From India, Kannur

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