Dinesh DivekarDear Rajiv,
Please provide us with the background of the case. Why does the company wish to terminate the employee? Is it because of the loss of business or underperformance of the employee? Did the employee commit misconduct?
If you wish to terminate the services of an employee on the grounds of poor performance or misconduct, then it is better to order a domestic enquiry. Let the accused employee be given a fair chance to defend his/her case. Depending on the outcome of the enquiry, the management can award a suitable punishment which could be termination of the services.
From India, Bangalore
AvinashDear Mr. Rajiv,
I am in full agreement to what Mr. Divekar has mentioned. However, I would like to add a point, the clauses of termination of services also need to be referred from the Service Terms & Conditions issued to the individual along with the Offer/Joining Letter.
Thanks & Regards,
From India, Thane
shobhit-kumar-mittalIf the employee does not belong to the "workman" category and it is stipulated in the terms of employment/ appointment letter that the services can be terminated with notice "or payment of salary in lieu thereof", then you can terminate the employee forthwith.
In fact you can terminate without there being any such clause, because if the employee is not "workman", the employer cannot be forced to continue the employee. In other words, in Employment Laws, non-workmen cannot be granted reinstatement, hence you can pay 3 months' salary in lieu of notice.
- S. K. Mittal
From India, Faridabad
' Dismissal ' is one among the methods of termination of the services of an employee irrespective of his employment capacity by the employer but carries with it a stigmatic connotation which generally acts as a bar on his future employment elsewhere.
As such, it should be preceded with a formal disciplinary proceedings based on the principles of natural justice as laid down in the service regulations or the contract of employment.
In the case of dismissal of an employee belonging to the cadre of workman under the ID Act,1947, it requires a formal disciplinary action comprising of issuance of charge memo by the competent authority, placing the employee under suspension pending enquiry if there be the need for it depending on the gravity of the charges leveled and paying subsistence allowance at the rates specified during the entire period of suspension, conduct of a domestic enquiry in case of rebuttal of the charges by the delinquent employee, analysing the findings of the enquiry officer, issuance of a second show cause notice on the proposed punishment of dismissal with the enquiry report and finally issuance of an orders of dismissal by the competent disciplinary authority generally with prospective effect. Any procedural lapse or violation of the principles of natural justice would be viewed seriously in judicial review later and the orders of dismissal would be set aside enabling the workman get reinstatement with back wages and all attendant service benefits. Therefore, no employer can resort to summary dismissal of an employee of the workman cadre forth with skipping all the above procedural formalities.
In the case of employees of superior cadre like supervisory, administrative or managerial cadre also, if the employer wants to dispense with his services by way of dismissal, he cannot act arbitrarily without giving a reasonable opportunity to the delinquent prior to dismissal as suggested by Mr.Dinesh for an aggrieved employee may knock the doors of the Civil Court for breach of the contract of employment. However, it need not be an elaborate procedure as in the case of an employee falling within the purview of the ID Act,1947. In such a case, it is better to strictly follow the unilateral separation clause of the contract of employment in letter and spirit. However, as the relation between the employer and managerial cadre employee is of fiduciary in nature, the employer may institute criminal action against such employee depending on the gravity of the misconduct and initiate simultaneous disciplinary action and dismiss him. Therefore, factual differences play a vital role in the dismissal of superior cadre employees and the employer has to dispassionately weigh all the options before him and decide whether it is enough to get rid of such unwanted employee by way of a 'discharge simpliciter' or a 'dismissal' but he cannot dismiss him forthwith a cryptic orders. Even the orders of 'discharge simpliciter' as per the exit clause of the contract of employment, if agitated by the employee later, the judiciary has the power to scan the orders and the actual facts precedent to such a decision of the employer and declare it as opposed to public policy u/s 23 of the Indian Contract Act, 1872 and award a higher compensation as held by the Supreme Court in CENTRAL INLAND WATER TRANSPORT CORPORATION v BROJONATH GANGULY [ 1986 SCR (2) 278 ]. Therefore, there should be valid documentary evidence based on which an orders of discharge simpliciter should actually rest.
From India, Salem
PRABHAT RANJAN MOHANTYDear Rajiv, The employee can be terminated by paying the 3 months notice. But the termination should not be on ground of misconduct.
From India, Mumbai
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