Can We Terminate an Employee for Being Absent Without Notice for 6 Days? Seeking Advice

Dear Members, We are a manufacturing company less than 2 years old in Tamil Nadu, employing about 40 people (22 of whom are workmen). We would like to terminate a workman because he has been absent for 6 consecutive days without prior permission from the company or any intimation to his supervisor. This is considered gross misconduct, and we would like to know if I can proceed with the termination due to disciplinary reasons. Please advise.

Thanks.

As an HR professional, the first step is to understand the employee's problem. If the employee is facing a critical issue, termination may not be the appropriate solution for their absenteeism. However, if the employee has a habit of being absent from duty, then necessary actions should be considered.

You will first need to call the employee and have a personal discussion with him to find out the reason for his absenteeism. You could ask him to "show cause" as to why he has been regularly failing to report to work. In the absence of a reasonable/valid response from him, the next ideal step would be to issue a warning letter asking him to be regular; failing which you will be forced to take necessary disciplinary action, including termination. If the absenteeism still continues, you may proceed with the termination.

Regards,

Addressing Absenteeism in the Workplace

Many organizations face the problem of absentee employees. You can issue a show-cause notice clearly stating the dates of absence, the number of days of absence since the initial date of absence, and the occasions (as per model standing orders). Then, charge the employee with clause 24(f) for habitual absence... (full clause).

Please ensure that this show-cause notice is issued to both the employee's address on record and their permanent address to ensure it reaches them. Thereafter, issue a charge sheet, conduct an inquiry, and provide the employee with an opportunity for defense. Please follow the proper disciplinary procedure.

Thank you all for your valuable replies. Please find my comments below.

Mr. Amit Thakkar

1. Employee joining date - September 2010

2. We do not have a standing order yet. Is it necessary to have a standing order for a company that has fewer than 30 workmen?

3. This employee has already been terminated from another company.

Mr. Satish Parimal

I understand what you mean, and I too second your opinion that as HR personnel, we should also have a humanitarian view on certain issues. However, the case here is that this particular workman did not inform the company or the supervisor about his leave and took six days' leave in a row. We have also identified that this person made his wife participate in the local body elections, which is the true reason for his absence. Unaware of the fact that the company knows the true reason, he wrote a letter stating that due to the ill health of his wife, he had to take leave. This isn't true.

Chonds

Please read my comments above and advise.

Thanks, and looking forward to your valuable feedback.

As posted above, can an employee be terminated by paying all dues? Do you mean any employee can be terminated by paying dues irrespective of their seniority?

Questions Regarding Employee Absence

When was the employee absent from work?

Had you issued a Show Cause Notice to him?

Did he provide a written explanation to the SCN or submit a document of ill-health?

If not submitted, have you requested the documents?

If an enquiry was conducted, what is its report? If not completed, what is the status of the enquiry?

Was the employee allowed to work after his 6 days of continuous absence from work?

Please answer these questions so I can provide you with suggestions.

Termination is not a solution for all problems. As you mentioned in this comment, he is terminated from another company. I have a question: if a person is terminated from another company, how do you recruit him without knowing the real reason for his termination in the previous company? Was it due to misconduct, absenteeism, health issues, or personal problems? First, know why he was terminated. If there is a proper reason like misconduct, you can terminate him; otherwise, see how critical the employee is for your concern and try to give him a warning, like deducting his salary amount, instead of terminating him. Without knowing the reason behind it, you should not dismiss him from the job. As you said, there is no standing order in your company. First, the company should frame the rules of Do's and Don'ts. Then only will employees follow the rules. Without proper implementation, how can you terminate an employee?

Is it necessary to have a standing order for a company that has less than 30 workmen? According to [section 1(3)], the Act is applicable to all industrial establishments employing 100 or more workmen.

Regards.

Procedure for Handling Absenteeism

First, we need to initiate a call for an explanation through a registered post. I want to know what clauses are included in the appointment order for absenteeism. Otherwise, please send a letter to his residential address as per the record through registered post, asking him to join duty immediately.

Following this procedure, start by sending three letters at intervals of 5 days each. After that, you can issue the termination order with all the necessary proofs.

I suggest that you visit the family of the employee and talk to the members. There are two benefits:

(i) You will know whether there is any genuine problem; in this case, take a soft approach.

(ii) If there is no issue on the home front, explain the consequences of termination due to absenteeism to the family (loss of income). In this case, the family members will exert pressure/motivate the employee. If the absenteeism continues, take appropriate action.

The other employees will appreciate your gesture.

Dear,

Kindly go through your company policy and Company Standing Order. If it's clearly mentioned in your policy/Standing Order for termination with such misconduct, then you can. Otherwise, you cannot. Secondly, if you have already issued him a show-cause notice for absence, then issue a strong show-cause notice again. Write in the notice that if you repeat such absences in the future, the management is bound to take strong action against you for which you are fully responsible.

Regards.

I would like to mention the following important notes from my point of view:

Establishing Clear Policies

When the mentioned employee joined the company, was there a clear policy on working hours and attendance? If not, you need to establish one as soon as possible and ensure all employees are aware of the disciplinary procedures. The same applies to the vacation policy; it should be clearly announced in a visible place for all employees to read.

Addressing Absenteeism

Absenteeism rate is closely related to employee satisfaction. We need to determine if this issue has occurred with other employees in the past or if it is specific to the mentioned employee. If it is a recurring problem, solutions should be sought at the source rather than merely addressing the outcome.

Legal Solutions

Warning letters and apology letters are effective legal solutions. The reason for the warning letter must be clearly specified. The employee's acceptance of the warning letter should be documented before placing it in their personnel file. As HR, it is essential to assess the employee's performance to understand if it was poor or acceptable. This procedure is crucial for ensuring all employees in your firm respect the rules.

Current Issues

Currently, we are addressing two main issues:
1. Absence from work without a valid reason.
2. Providing false declarations regarding absence. It is crucial to verify such claims rather than solely relying on hearsay.

Conclusion and Recommendations

In conclusion, I recommend the following:
- Issuing a warning letter is necessary.
- The content of the warning letter should be based on the responses to the above points.
- Clearly state in the warning letter that repeated actions will result in appropriate disciplinary measures, potentially leading to termination.

I hope these points prove helpful to you.

Best regards,

Rather than terminating, please review the concerns of the employee in question and work towards resolving them. Terminating 40 employees could result in significant losses for the company.

Regards,
Sumit

Termination is not always the final solution. It is important to first identify the root cause of the issue and then take necessary actions accordingly. If the behavior is habitual, consider issuing a warning letter advising the individual to improve their attendance. If there is no improvement, then strict action regarding their misconduct may be necessary.

Regards,
Lawrence S.

You cannot terminate him from the job. If he goes to the labor office, management will be bound to take him back. In this position, as an HR person, you will be in a humiliating position. You can issue a warning letter/show-cause notice but cannot terminate him. As you said earlier, your company does not have any certified standing order, so you can refer to the Model Standing Order for your reference.

Regards,
Ratikanta Rath

For six days of absenteeism, you need to first issue a call letter asking him to report for work. Thereafter, if he fails to do so, you can initiate disciplinary action.

Please see https://www.citehr.com/285737-legal-...-industry.html

Regards,
rajanlawfirm

I think the fact that he has lied about the reason for his leave is enough to initiate action on disciplinary grounds. You will need to issue a show cause notice, conduct an internal inquiry, and then you can terminate him following all the procedures.

However, you need to gather evidence that his wife was not sick but was very much actively campaigning.

Dear Friend,

Straight away, you cannot terminate any employee if they are in permanent roles. Even to issue a memo, you need to have a minimum of 7 days of absence without prior intimation. If your company doesn't have Standing Orders, then you can follow the Model Standing Orders, which you need to mention in the Warning letter/Memo/Show Cause Notice.

In any case, especially at the Workmen level, you need to build up the file. Hence, try to capitalize on such opportunities and start building the file by issuing Show Cause Notices/Charge Sheets. If the case is chronic, you can use all the documents as weapons.

Regards,
Murthy
GM - HR

Thank you for your valuable feedback. Please find my comments below.

Letter Sent for Explanation

By registered post, we have sent a letter asking for an explanation. We have also specified in the letter that termination without notice will be considered as disciplinary action, and the employee will be terminated without notice.

Discussion with Concerned Workman

I accept your suggestion, and as you said, we had a personal discussion with the concerned workman and found out that he is denying the true reason for his absence, unaware that we have the proof.

Standing Order Clarification

We do not have a standing order since we are less than 50 in strength.

Agreement on Points Raised

I agree with your point.

Evidence of Misconduct

We are sure that he has lied to us and continues to do so. We have evidence as well.

Thank you all for your valuable views. I appreciate your responses. It was of great help.

Thanks...

Dear All,

Thank you for your valuable feedback. Please find my comments below.

Dear Mr. Mahesh,

By registered post, we have sent a letter asking for an explanation. Also, we have specified in the letter that termination without notice will be considered as disciplinary action and terminated without notice.

Dear Chonds/Mr. Dheeraj,

I accept your suggestion and, as you said, we had a personal discussion with the concerned workmen and found out that he is denying the true reason for his absence, unaware that we have the proof.

Dear ommygautam,

We do not have a standing order since we are less than 50 in strength.

Dear Mr. Tarte,

I agree with your point.

Dear Saswata Bannerjee,

We are sure that he has lied to us and continues to do so. We have evidence as well.

Thank you all for your valuable views. Appreciate your responses. It was of great help.

Thanks...

Then you have to follow the Model Standing Order, and as I told you for issuing him notice, please issue him notice again and again. After 5 or 6 notices, you can make a decision for termination.

Language:

Dear Mr. X,

Please find the reference to your letters A, B, C, & D dated [insert date]. You were informed to stop your absences from duty without any information, but to date, you have not changed this habit of being absent. Based on this, I believe you are not interested in working with the company and have no attachment to the production. Therefore, management has decided to take strict action against you, and you are terminated from [insert date]. Your total amount of Full & Final is [insert amount of F&F], via cheque no. [insert cheque number] attached with this letter.

Thanks & Regards,

For [Company Name]

Authorized Signatory

CC to:

DLC

ALC

Labour Inspector.

(Please note that all notices given to the employee are also sent to the above offices.)

As an HR professional myself, you must have a company policy in place that clarifies these matters. For example, in my company's policy, I have clearly defined:

Absence Without Prior Approval

In the event that any employee is absent from service for more than 5 working days without prior approval from their immediate supervisor, it is the responsibility of the immediate supervisor to inform the HR Department, as well as the concerned department head, in writing.

The HR Department will send a registered letter to the employee's residence, asking them to state the reasons for their absence and to resume services within a maximum of 5 working days. If the employee does not return within 5 working days from the receipt of the notice, the HR Department will initiate the exit procedure by sending a Letter of Abandonment to the concerned employee (Registered AD). The Separation Note and other steps will follow thereafter.

Regards

I do agree with a few of my friends who have said that termination is not the solution. Being an HR person, first dig out the history of that employee to understand why they are behaving in a certain way and what is compelling them to do so, rather than directly referring to your standing orders. Terminating an employee without it being mentioned in your standing orders can lead to a major industrial relations issue. Therefore, you should start by giving warning letters to the employee, with government officials as CC, to make the termination process smoother.

I hope this helps you understand how sensitive the matter is when it comes to termination.

Regards,
Sandeep

Steps to Address Unauthorized Absence

Make attempts to get hold of him prior to hastily taking any decision to terminate his service. Send him a telegram which must read as follows:

According to our records, you have been absent from work without authorization as of _______ to date (Total number of days absent = ). Please note that you are in breach of your contract of employment and of your duty as an employee to provide your services. This situation is unacceptable.

You are requested to report to work immediately on receipt of this communication, failing which your continued absence will be regarded as desertion and will be dealt with in terms of XYZ Ltd Disciplinary Code. Please note that should you fail to report to work within 24 hours of receipt of this letter, you will be dismissed for desertion, and said dismissal will be confirmed in writing.

Steps to Strengthen Your Organization

Make your organization bigger and stronger by taking the following steps:

• Issuing a show cause notice.
• Sending a warning letter with the Legal Officer in CC.
• Establishing a disciplinary committee.

I hope this information is helpful to you.

Regards,
Sandeep Thakur

Replies in this thread seem to miss some vital points the original post makes.

1. It's not a question of habitual absence. It's a question of absence without approval and lying as to the reason for absence.
2. The company has less than 50 employees, and standing orders (model or certified) do not apply.
3. The person has already joined back. There is no question of sending a telegram asking him to join in 5 days, etc.

Validity of Termination Based on Misconduct

What is in question here now is whether his lying about his wife's illness is a valid ground for termination. I do not think it is a problem. But of course, I have limited experience in this matter.

As mentioned by one of our friends, the company has less than 50 employees, and standing orders do not apply. Therefore, I would like to request my friend to shed more light on this as I am not sure about this matter.

Regards,
Sandeep Thakur

It appears the information pertaining to this matter is rearing its head in fragmentation. It is now alleged that he lied about his wife's illness. What is the real problem, his absence or providing false information to the business?

This is what the act says:

1. Short title, extent, and application.

(1) This act may be called the Industrial Employment (Standing Orders) Act, 1946.
(2) It extends to [the whole of India [* * *]].
(3) It applies to every industrial establishment wherein one hundred or more workmen are employed, or were employed on any day of the preceding twelve months:
Provided that the appropriate Government may, after giving not less than two months' notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any industrial establishment employing such number of persons less than one hundred as may be specified in the notification.

So obviously for any factory in India where there are less than 100 employees, the standing orders do not apply by law. You are free to follow it voluntarily, but no one can go to court and force you to follow it. You are free to make your own rules and communicate them to your employees.

Though the standing orders apply when the company has 50 or more employees, in the case of punitive termination, the procedure normally followed is the same as that in the act. You have to comply with the rules of natural justice, review the past record, and then resort to punishment. Therefore, my earlier advice is correct. Even if he may have been terminated from another company, you have to take independent disciplinary action. So please follow the steps that I had previously stated.

I do not know whether you have actually terminated the worker as of today. However, I offer my views on the issue raised by you.

1. You mentioned that your company is employing thirty workmen, and therefore, the Industrial Employment (Standing Orders) Act will not apply. You have not indicated the State in which your establishment is situated. The I.E. Act grants power to the State Government to apply the provisions of the I.E.S.O. Act to industrial establishments employing fewer than 100 workmen. Please verify whether your State Government has issued any such notification and if it is applicable to your establishment.

2. Assuming that the I.E.S.O. is applicable and that you do not have certified standing orders, then the Model Standing Orders are applicable to you.

3. It is a well-established principle of industrial law that a workman can only be punished for misconduct after following the prescribed legal procedure. Therefore, if a workman is dismissed for conduct that is not misconduct, the dismissal is deemed illegal. In the scenario you described, assuming the I.E.S.O. Act is applicable to your establishment and there are no certified standing orders in place, the Model Standing Orders apply. It must be determined whether being absent for six consecutive days constitutes misconduct under the Model Standing Orders. If not, then the absence cannot be considered misconduct, and the worker should not be penalized. Please confirm whether absence for six days or providing false reasons for absence are considered misconducts under the Model Standing Orders. Otherwise, any dismissal would likely be overturned.

4. If the I.E.S.O. Act is not applicable, the situation would change. It remains a fundamental principle of industrial law that a worker cannot be penalized for an act that is not misconduct. In the absence of standing orders, you must first ascertain if the worker's appointment order or any applicable service regulations clearly state that being absent for six days or providing false reasons for absence are considered misconduct. If not specified, then absence for six days or providing false reasons cannot serve as valid grounds for initiating disciplinary action.

5. In the event that you have already dismissed the worker, if they approach the Labour Court, the dismissal is likely to be overturned on the basis that the punishment of dismissal is disproportionate to the charge of being absent for six days or providing false reasons for absence.

Regards,