How Do You Handle Terminating a Long-term Union Worker with Poor Performance?

Can anyone let me know how to terminate/dismiss/suspend a permanent worker who is a member of a labor union? He has been working in the factory for the past 15 years. Management has observed his very low performance/attitude, which has not improved even after giving warnings. Are there any laws protecting them, or how much should we bear extra as a settlement?

Thank you.

Legal Framework for Disciplinary Action Against Trade Union Leaders

There is no law that protects a non-performing or troublesome trade union leader. Section 33(3) of the Industrial Disputes Act, which deals with protected employees (of a trade union), only states that during a pending dispute in conciliation before a Labour Officer or Courts, disciplinary action cannot be taken against a protected laborer without permission from the conciliation officer/labor court. However, if disciplinary action is initiated for misconduct not related to the pending dispute, action can be taken even if the person is a protected worker.

Challenges in Framing Charges

In theory, there is nothing illegal in taking action against a trade union member. However, in practice, it is very difficult to frame charges against the worker, especially when it relates to 'attitude,' which is non-measurable or unquantifiable human behavior. Charges like theft, insubordination, smoking inside the factory premises, or sleeping while on duty are provable and quantifiable. On the other hand, labeling a worker's attitude as bad is subjective, as different individuals may perceive it differently. There might be followers or witnesses supporting the worker, saying the attitude is not bad or even good.

Evaluating Employee Productivity

If charges can be based on employee productivity, a comparative study of the average output per worker should be conducted. This analysis should consider qualifications, experience, training, and employee grade to conclude that the union leader is not meeting expectations. The disciplinary process should be thorough to avoid being seen as victimizing a long-term union leader.

Practical Considerations

Initiating disciplinary action against a union leader may lead to non-cooperation from workers following them, resulting in further production losses. It is essential to be practical and conduct thorough preparation before dealing with such employees.

Regards,
Madhu.T.K

Issuing a Charge Sheet for Misconduct

Any worker, including a trade union member, can be issued a charge sheet for misconduct, and an inquiry can be constituted to investigate the charges.

Dismissal and Approval Requirements

However, only in the event of a dismissal as a punishment and when there is conciliation or a pending dispute, approval or permission is required, as the case may be. Dismissal of an employee for non-performance does not fall under the category of misconduct. Therefore, after a proper inquiry and substantial evidence, the non-performer, whoever it may be, can be terminated from employment.

We have checked with Conciliation about this issue. The Commissioner said, "I can take action on them as per their standing instructions." He doesn't have any issue. However, we have not been given any standing instructions 15 years back with his appointment order. In those days, the company provided appointment orders on a single paper with pen writing.

Can We Use the 3-Year Workmen Agreement as Standing Instructions?

Can we follow their 3-year workmen agreement as standing instructions? We want to take legal action. Thank you.

Steps for Termination of Employment of a Permanent Workman

The termination of employment of a permanent workman must be followed by certain cautious steps:

1. The charge sheet and enquiry must be conducted.
2. The enquiry shall be a fair one, which gives ample opportunities to the charge-sheeted workman in the enquiry.
3. Principles of natural justice must be followed in the enquiry.
4. The enquiry report (duly proved) shall be given to the workman for explanation.
5. The punishment must be based on the principle of proportionality to the gravity of misconduct.
6. In case of serious misconducts such as theft, dishonesty, violent behavior, willful insubordination causing damage to the employer's business, instigation for go slow, etc., the extreme punishment of termination of employment is advisable.

Any termination of a workman's service without the proper and legal enquiry will be illegal. The employer has to face further consequences like reinstatement with full back wages, etc., depending on each case.

In the present case of low performance, which I assume is low productivity as compared to the past record of the workman, this is considered as go slow. Conduct an enquiry, prove it, assess the damage, and make a proper decision based on the above points.

Regards