Navigating Employee Termination: Can Poor Performance and Excessive Leave Justify It?

A female employee in my company has taken 66 leaves, well above the annual leave quota, and has not been performing well. Last time she took 8 days off without informing anyone; when she reported back, she claimed it was due to medical reasons. Do the employers have justified grounds for termination? She recently mentioned that she is 3 months pregnant. Could this situation lead to complications if the employers decide to terminate her? Would there be any legal or statutory violations involved?

Dear Ms. Priyanka.6986,

Justified Grounds for Termination

Thus proposing your first point, "Are the employers having justified grounds for terminating?" A company probably won't terminate any employee due to excessive absenteeism for illness if you have a legitimate medical condition. Understand that employers need to be a little careful on the grounds of terminating their employees (especially females) as it may lead to discrimination. Before you consider any certainty, you may want to conduct a thorough investigation on why these many leaves have been taken, and the lack of intimation is certainly an employee's mere negligence towards workforce gratitude.

Employee's Responsibility

Implying on the employees' gesture—she should have actually found out the rules of sick leave in your company and its applicability in case of mere health issues. "She's incontestably at fault."

Pregnancy and Legal Implications

To the concerned point, "3 months pregnant can this lead to complications if the employers decide to terminate her, will they face any legal/statutory violations?" According to the Maternity Benefits Act, under Sec. (3), the maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks, of which not more than six weeks shall precede the date of her expected delivery (i.e., 6 weeks before the expected delivery and 6 weeks after the delivery).

Then U/s. 5(2) states, "No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery."

Refer to the Maternity Benefit Act, as I don't see any legal situation sustaining at the moment.

Regards,

Termination of Pregnant Employees: Legal Considerations

Dismissing or discharging a female employee while she is pregnant can be interpreted as an act of depriving her of maternity benefits and medical bonuses, and thus it is illegal. However, there is nothing wrong with terminating her service on the grounds of misconduct. If habitual absenteeism is considered serious misconduct as per your Standing Orders or HR Manual, then you can initiate disciplinary proceedings against the employee. There should be documented evidence to support the charges against the employee.

If you find that she has been a poor performer, that can also be a charge against her. In this case, proper and regular performance appraisals should have been conducted, and it should not be a one-time arrangement just to frame charges against a pregnant woman. While doing so, you should also have a record of performance appraisals conducted for others during the same period. Otherwise, it will be treated as a fabricated document just to frame an employee.

Regards,
Madhu.T.K

Rules on Absenteeism

Male or female, the rules on absenteeism are the same. If you have sanctioned 66 days' leave and all are approved, you cannot initiate any action now. Of the 66 days' leave she availed last year, how many days were approved and how many days were not approved? If the management has approved all, you cannot do anything now.

If she has remained absent for 8 days now, issue a letter stating that she has been absent and proceeded without intimation. Even in the case of sickness, the employee is supposed to inform the management immediately, and it is within your right to initiate action if you have not received intimation.

Action During Pregnancy

Initiating action during pregnancy per se is not illegal as many think. You need to examine the past records of the employee, her current behavior, and keep all records intact.

Section 12 of the Maternity Benefit Act has your answer to some extent. The same is reproduced here for your reference:


"12. Dismissal during absence of pregnancy.—(1) When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.

(2)(a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus:

Provided that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both.

1[(b) Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within sixty days from the date on which the order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissed shall be final.]

(c) Nothing contained in this sub-section shall affect the provisions contained in sub-section (1)."

Now, if I see this section and compare it with your case at hand, I see two very important things:

- She absented herself for 66 days in a year, which is on the higher side.
- But on the other hand, you say that she absented herself due to bad health.

Now, if we dismiss her for her absenteeism, she may take a stand that she absented herself due to illness, which is not wrong. The fact of her pregnancy also complicates things badly. Please see section 12 B above; the dismissal shall be final only when the appeal is decided by the authority if she contests her dismissal. Even if we assume that she was not pregnant, even then, to terminate any employee for continued ill health is not an easy task.

I would request you to carefully weigh your options before taking any step. Although much depends upon the nature of her absenteeism and her overall working performance otherwise. Yes, for sure, it won't be easy to terminate her.

Regards.