How to Handle Employee Misconduct and Union Tensions in the Workplace?

Employee Misconduct and Union Involvement

I fall under the Factory Act. A misconduct of theft was committed by one of my employees, against whom a customer has lodged a written complaint. In response, the company's management issued a show cause notice to the employee, followed by a charge sheet, and a departmental inquiry is currently underway. Upon learning of this, the employee, acting alone, approached the union. While continuing to work, he is displaying rude behavior towards management representatives, using foul language, and working slowly, as instructed by the union representative. This situation amounts to harassment, with the employee also actively encouraging others to join the union, despite his brother being employed in the same organization but not being a union member.

Please advise on the actions that can be taken against the employee, as his actions are creating a tense atmosphere within the company. I have previously issued several letters regarding his uninformed absenteeism, slow work pace, and use of a mobile phone during working hours. Additionally, he frequently takes breaks to refill his water bottle and visits the toilet around 10-15 times.

Kindly suggest appropriate steps to address the situation until the outcome of the inquiry is determined.

Dear Dharam,

As you have mentioned that an inquiry is ongoing, you can expedite the investigation and terminate the individual if found guilty.

Considering the multiple warning letters that have been issued to him, you may assess his performance in writing. If his performance is unsatisfactory, provide him with a period of 3 months to show improvement. If his performance does not improve within this timeframe, you are then justified in terminating his employment.

Thank you.

Handling Employee Misconduct and Union Involvement

Employees, when cornered, often join the union. Here, the first important step is to complete the inquiry quickly, following the principles of natural justice. Do not allow delays or adjournments. Document all acts of employee misbehavior, such as late arrivals and foul language.

You can issue further warnings, but be aware that employees might try to portray these actions as witch-hunting. The inquiry needs to be completed swiftly. Adequate punishment can be given if evidence is found in the customer's complaint, which could include dismissal. Consider the factory environment and potential union reactions.

Dear Dharam, It would have been better for the readers to understand the entire problem in the right perspective had you explained the circumstances leading to the complaint of theft against the employee by an outsider, viz., the customer. Was the complaint of theft name-specific or general without specifying any one of your employees? Have you conducted any discreet preliminary inquiry into the complaint before charge-sheeting the particular employee? If there was prima facie evidence, what prevented you from placing the employee under suspension pending inquiry? Theft is a serious allegation casting aspersion on one's character, and it might have caused a serious and negative impact on his normal behavior. Your allusion to his sudden union membership after being charge-sheeted is indicative of your organization's ill-disposition towards the union of employees, and it could have been reflected by the superiors or supervisors who directly handle the employee every day. There is no smoke without fire. No management would tolerate such freaky misbehavior of an employee who is facing a definite charge of misconduct and ask for suggestions from outsiders. I suspect that something is fishy behind the complaint, and to cover up this, the particular employee has been made a scapegoat—only the wearer knows where the shoe pinches!

My experience shows this to be an act of desperation by the delinquent employee. The employee accused of theft, and the inquiry is in progress, may be feeling the heat. In his frustration, he becomes an activist of the union, misbehaves with senior officials, and creates/spreads disaffection, perhaps under the impression that this would compel management to bail him out. This is the time for management to react and show that the limits of tolerance have been breached. One step could be to expedite the inquiry, secondly to consider suspending him, and a second disciplinary action could be initiated.

I don't deny such a possibility. However, the extent and nature of the misdemeanor described, his new association with the union, the so-called allegation against the union representative's instruction to do so, and the management's failure so far to muster the moral courage to place him under suspension, apart from framing fresh charges on such undesirable behavior smacking of further serious misconduct in utter defiance of the rules of discipline, compel one naturally to take a different perception.

If any management hesitates or fails to impose strict rules of discipline in the face of such continued misbehavior of a single employee out of its fear of retaliation by the union or others, there must be some other reasons. That's the logical conclusion for my above response. Let the poster come out with full details if he is willing.

Employee Allegiance and Union Dynamics

I have noticed that a few employees are never members of any union. They shift allegiance to different unions as per their whims and fancies. Unions also use such employees as an excuse for taking on the management. Many managements lack the moral courage to be proactive when a union comes into the picture. Unions will bring out many skeletons from the cupboard. That could be one reason why an employee accused of theft has still not been punished or even blamed through the due process of inquiry. Hesitancy of action is visible. Only the querist can provide further details on the whole situation in his establishment. We can only make educated guesses and read between the lines. If the querist gives full facts, better advice can possibly be given.

Factors to Consider in Addressing Employee Misconduct

Very helpful inputs from the learned members to enable you to take a considered view in this case. Two factors need to be examined to nail the issue.

1) As Mr. Umakanthan pointed out, whether there is evidence that can be acted upon to prove the charge of theft. It is important to prove the ownership of the property stolen, but a mere complaint is not enough. If your evidence is weak, even if you dismiss him, he will, in all probability, be reinstated by the courts. That will be a huge embarrassment for the company.

2) If the allegations are backed by solid evidence, then expedite the inquiry and even suspend him pending inquiry if his presence is hostile to smooth functioning. However, note that you have to pay him subsistence allowance during the period of suspension.

Regards, B. Saikumar HR & Labour Relations Advisor Navi Mumbai

After going through the thorough matter, my opinion is as follows:

If you have sufficient proof of theft, then you can terminate him from the service after conducting a thorough inquiry. However, you also need to lodge a complaint with the local police station because theft is a recognizable offense that should be covered under Section 379 of the Indian Penal Code.

S. Shome AGM - HR & ADMIN JVL OIL REFINERY, HALDIA, WB.

Dear Mr. Umakanthan, I completely understand your thoughts and would like to elaborate on the details so the problem is understood and a logical solution is suggested by the esteemed members of this community. But before understanding the problem, a little background of my business is necessary.

Background of My Business

I have a Retail Outlet (RO) (Petrol Pump) and I come under the Factory Act as petrol and diesel are essential commodities. A customer visited my RO to fill fuel in his vehicle worth Rs. 200, and my employee filled Rs. 200 fuel and charged him Rs. 300 on his debit/credit card. The customer is a regular at my RO, and being in a hurry on that particular day, he refused to take his customer copy of the receipt, saying he would get it on his mobile as confirmation and left the outlet trusting the reputation of my RO, as we are almost completing 60 years.

Incident Details

After learning from the SMS that he was overcharged, he again visited the RO and spoke to me regarding his issue, on which I called my employees, and he pointed at one of the employees who had committed the theft. I gave a chance to my employee, as if it was a mistake, please return Rs. 100 to the customer, and the matter would end there, on which he refused to agree and said he had not committed any theft. I saw the recording of the CCTV, and it clearly shows that the customer was on a bike with his daughter, and Rs. 200 fuel was filled. I recovered the Merchant copy of his swipe, which was for Rs. 300, and it was a theft, as proved by the CCTV footage, which I have also submitted.

Actions Taken

The management then issued a Show-Cause notice to the employee, and the employee went to a union and became a member, after which he replied to my show-cause, denying the theft. I had no choice but to issue a charge sheet, and on the other hand, I have also given a written complaint to the police regarding the incident.

Current Situation

The enquiry is ongoing, and the employee is using tactics to harass the management in many ways, which are as follows:

1. Talking on the mobile and carrying the mobile to the Petrol Island, which is prohibited by PESO.
2. Making false allegations against the employee.
3. Scouting for his Union membership to others who are new to the employment.
4. Taking unauthorized leave and providing an ESIC registered hospital, which are false.
5. Talking rudely to the management representatives.
6. Taking frequent breaks for water, urinating, lunch, and working slowly.
7. Not accepting any letters given to him by hand.

This employee is creating a tense atmosphere at the RO. The enquiry is in progress, and I am going to depose on the next date.

Request for Suggestions

What further action is suggested by you all?

Immediate Actions for Employee Misconduct

The above events demonstrate a high level of tolerance towards the errant behavior of the delinquent, which can no longer be accepted. Particularly concerning is the indulgence in using a mobile phone and carrying it to the Petrol Island, which is prohibited by PESO. You may suspend him with immediate effect and issue a charge sheet cum inquiry letter (i.e., by appointing an inquiry officer as well). If he refuses to accept it, send it by registered post and expedite both inquiries. Such detrimental behavior cannot be tolerated in a small setup like yours.

You need to act swiftly by conducting an inquiry and taking action before he affects other employees as well.

Refund Process for Swipe Machine Transactions

Now, one question I have is when you use the swipe machine, money comes to your company's account, so an extra amount of Rs100 must have been credited to your RO account. Therefore, a refund is not an issue, I presume.

You have evidence to suspend him, which will keep him away from the RO premises.

Handling Non-Acceptance of Letters

Non-acceptance of letters can be resolved by sending him Speed post letters for proof of delivery.

Since your RO may not have time for such lengthy inquiries, without delay, suspend him and complete the inquiry. Based on the findings, take appropriate action.

Unionization Inquiry

Is your specific RO unionized, or is it a general union of RO employees?

Delay in this case is neither desirable nor helpful in any way and will affect your RO.

Experience as a State Government Official

In my career as a State Government Official for about 33 years, I worked as a Deputy Controller of Legal Metrology for about 8 years. Though it is a long time ago, back in the early 1990s, I still remember how the retail outlets of Petroleum Products were operated with employees, especially in big cities where sales were very high during peak hours. The conduct of sales and service in an orderly fashion was very challenging for both employees and supervisors/managers who oversaw them.

In most outlets, pump operators/salesmen were allowed to collect cash directly from customers and complete transactions during their shifts. At the beginning and end of their shifts, they would calculate the total sales based on the opening and closing meter readings of their dispensing units, then hand over the total cash collected to the cashier. When sales were made through card swiping, the retailers' copies were retained and submitted with the cash at the end. If a card was swiped for a higher amount, the money would only be received by the establishment. The only opportunity for fraudulent activity would be selling an equivalent quantity of the product to another customer without a bill.

Ensuring Accountability and Discipline

Therefore, in addition to the CCTV footage, it is essential to verify the total quantity sold during the shift and the total cash remitted, including card sales, to determine any misappropriation or theft. Based on your subsequent post, it is apparent that there is a lack of effective control over employees in your establishment. The employee union should not influence the maintenance of organizational discipline. Unless there are some weaknesses in the sales and service procedures, employee payments, and overall work discipline, there should be no tolerance for such misconduct by an individual employee.

It is crucial to be resolute in upholding discipline.

Best regards,
[Your Name]

Proving theft or misappropriation of Rs100 may be difficult. If swiping was done, the money would have gone to the RO bank account. Proving that he adjusted this Rs100 by giving more petrol, etc., and pocketed the cash may be difficult.

Mr. Nathrao,

Employees and employers of petrol pumps across the country follow one simple rule. We take the money from our employees as per the meter reading of all the dispensing units. If an employee has taken Rs. 300 for which the customer has only received fuel worth Rs. 200, then it is considered theft. This discrepancy is also visible in the CCTV footage, showing that he has filled only Rs. 200 worth of fuel.

Thank you.

Mr. Dharam Kapadia,

I understand the possibility of theft or misappropriation if the transaction between your pump operator and the customer took place in the form of cash. However, in this case, the customer made the payment through his debit/credit card. In such a scenario, there would be no cash transaction, and the amount must have been credited to the company's account. In this context, how could theft occur?

Regards,
B. Saikumar
HR & Labour Relations Advisor
Navi Mumbai

We hope that the inquiry is completed fairly and as quickly as possible, with just punishment imposed. The challenge of proving that an employee has taken Rs300 from a random customer and attempted to adjust the amount is difficult, regardless of CCTV evidence. Can CCTV footage show the exact amount of cash being exchanged?

When providing advice on any issue, I try to anticipate the possible counterarguments from the opposing party and assess what evidence we need to support our case. The central issue at hand is whether you can retain a defiant employee on your team. He is going out of his way to create problems, and it may be necessary to implement HR policies and stricter administration to prevent other employees from being negatively affected by his behavior.

Please let me know if you need any further assistance.

Thank you.