Union Staff Absence: Can We Terminate an Employee Who's Been Away for 8 Months?

Can we terminate any union staff? He has not been coming to the office for the last 8 months. Every month, he sends a letter from ESIC stating that he is unwell. Now, management wants to terminate him. Is it permissible for us to do this?

There is no clarity regarding the letter from ESIC. ESIC will issue a leave certificate to the employer every month if the employee is undergoing medication. Every month, ESI will extend leave according to his/her health. Once doctors in ESI declare fitness and the employee's readiness to rejoin, they will certify to join duty in the leave form. The employee will receive a salary from ESIC until he joins back to work. The employer has to show ESI in their attendance registers. ESIC won't give any letter to the employer regarding leave; they will issue leave certificates. However, there are clauses specifying for how many days a person can take Medical leave from ESIC, for example, for sickness benefit, a maximum of 91 days in a year. Kindly refer to the ESI portal.

Regards, Meera Sharif.

I faced a similar situation with a union member. Generally, ESIC provides leave certificates based on the employee's condition, typically granting up to 7-10 days. If the illness persists beyond that period, they may renew the leave or issue a fitness certificate.

In our situation, the worker, who is also the union leader, was obtaining leave certificates from the ESIC Dispensary weekly. During his leave, he actively participated in union activities. Upon realizing this misuse of ESI leave, we issued a warning letter to him, requesting an explanation. We also informed him that we would seek a second opinion on his illness from the ESIC and review the certificates issued.

The worker then showed our letter to the ESIC doctor, prompting a call from them. We requested a genuine report to prevent escalation, including a second opinion from the ESIC Director. Subsequently, they provided the correct fitness report, and the employee resumed work.

Everything fell into place once we followed the proper procedure.

Regards, Jayendra

Dear Friend,

In addition to my previous post, termination should not be done instantly as your management asks you to do. Please follow the procedure:

1) Issue the Memo followed by the charge sheet (Misusing the ESI Leave).
2) Suspend and conduct a domestic inquiry.
3) Pay the suspension allowance.
4) At the same time, gather the evidence.
5) Base the award on the domestic inquiry.

Regards,
Jay

Yes, you can terminate him on continuous ill health under Section 2(oo) of the Industrial Disputes Act.

Dear Meera,

An employee had an accident on 12th February 2019. Since February, we have been receiving letters from ESIC to extend his leave for one month. It has now been almost nine months, and he has not returned to work.

The management now wishes to terminate him immediately. However, I would like to know if we can do this, or if we are required to give a one-month notice period before terminating him, considering he is part of the union staff. I would appreciate understanding the proper process in this situation.

Thank you.

Termination of an Employee on Humanitarian Grounds

We should not terminate an employee who met with an accident on humanitarian grounds. Please check whether the employee is temporarily disabled or permanently disabled. If it is a genuine case, help him in getting the benefits from ESIC. Even if you terminate with one month's notice, he can challenge it in the labor office, and the judgment will come in his favor only. Please go through the below ESIC guidelines:

Sickness Benefit (SB)

Sickness Benefit in the form of cash compensation at the rate of 70 percent of wages is payable to insured workers during periods of certified sickness for a maximum of 91 days in a year. To qualify for sickness benefit, the insured worker is required to contribute for 78 days in a contribution period of 6 months.

1. Extended Sickness Benefit (ESB): SB extendable up to two years in the case of 34 malignant and long-term diseases at an enhanced rate of 80 percent of wages.
2. Enhanced Sickness Benefit: Enhanced Sickness Benefit equal to full wage is payable to insured persons undergoing sterilization for 7 days/14 days for male and female workers, respectively.

Maternity Benefit (MB)

Maternity Benefit for confinement/pregnancy is payable for Twenty-Six (26) weeks, which is extendable by a further one month on medical advice at the rate of full wage subject to contribution for 70 days in the preceding Two Contribution Periods.

Disablement Benefit

1. Temporary Disablement Benefit (TDB): From day one of entering insurable employment & irrespective of having paid any contribution in case of employment injury. Temporary Disablement Benefit at the rate of 90% of the wage is payable so long as disability continues.
2. Permanent Disablement Benefit (PDB): The benefit is paid at the rate of 90% of wage in the form of monthly payment depending on the extent of loss of earning capacity as certified by a Medical Board.

Dependants Benefit (DB)

DB paid at the rate of 90% of wage in the form of monthly payment to the dependants of a deceased Insured person in cases where death occurs due to employment injury or occupational hazards.

Regards,
Jayendra

Protection for Protected Workmen under the Industrial Disputes Act, 1947

Under the Industrial Disputes Act, 1947, some protection is granted to 'Protected workmen' against altering, to their prejudice, the conditions of service applicable to them before the commencement of such proceedings. This includes discharging or punishing, whether by dismissal or otherwise, such protected workmen, save with the express permission in writing of the authority before which the proceeding is pending.

Definition of a Protected Workman

A protected workman in relation to an establishment means a workman who, being a member of the executive or another office bearer of a registered trade union connected with the establishment, is recognized as such in accordance with the rules made in this regard. Please refer to Section 33 (3) and (4) of the Industrial Disputes Act, 1947, and also Rule 61 of the Industrial Disputes (Central) Rules, 1971.

No. The conditional immunity to union members as protected workmen is available only when there is a proceeding existing before an authority under the ID Act.

What is the process if he is not covered under ESI? This means if he exceeds the maximum ceiling of 21000. How can we terminate him?

If management can obtain any documentary proof or photo evidence that the union member has been attending union activities, personal business, or other celebrations/meetings during his ESI leave, then issue him a letter with a copy to ESI regarding his active role in public while on ESI sick leave. Management can direct him to report for work by a specific date. Failing to do so, he may be informed that he is not interested in the job, and consequently, he may be deemed to have left his employment. Then issue him a charge sheet and conduct a domestic inquiry, presenting evidence through a presenting officer, and decide the case accordingly.

First of all, I agree with Meera that ESIC issued a certificate instead of a letter. The letter that is mentioned here must be scrutinized by the HR department of the establishment. If it is found to be fake, then the process should involve issuing a notice, charging the individual, conducting an inquiry, and then terminating him.

Employee Accident and Medical Examination

Information is required to determine whether the employee met with an accident while commuting between home and the workplace or not.

If not, management has the option to advise the employee to undergo a medical examination if we have a company doctor. Otherwise, he may be advised to undergo the medical examination in a government hospital or by an independent doctor and obtain an opinion.

Accordingly, if he is found unfit for any gainful employment in the organization, then only termination can be considered. However, a notice can be issued mentioning the absenteeism of the employee and its impact on the business. Depending on the reply and facts regarding the health condition of the employee, a decision may be taken by the management.

Dear Takur, you cannot terminate an employee on his ESIC leave. If he is providing the proper ESIC leave approved slip through the correct channels to your office, it means you cannot do so suddenly.

Steps to Follow for Termination

Please issue a show cause notice while intimating total working days, present days, and ESI leave. Obtain the explanation in writing. Issue a charge sheet mentioning the Standing Order clause. Issue an enquiry initiation letter with the enquiry officer's name and venue of the enquiry. If the said TU leader is a protected workman under Section 33 (ID Act), follow the procedures. After conducting the enquiry, you can terminate him if found guilty. If there is already an ID existing in his name, please follow Section 33(2)(b).

Termination under ESI Act

Once a person is under ESI medical/sickness treatment, Section 73 of the ESI Act imposes a bar on the employer not to terminate their service. Such termination would be illegal.

So, first of all, the employer needs to bring such a person out of the ESI sickness certificate. For that, you can contact the concerned ESI doctor, ask for the details of the sickness and treatment provided by ESI, and the expected duration of the sickness. You can also mark such communication to the Medical Director of the state. This will build pressure on the ESI medical doctor. If the sickness certificate is being procured on false grounds, most probably the doctor will stop issuing further certificates and provide a fitness certificate. If the sickness is genuine, you need to wait.

Once ESI issues a fitness certificate, and even then if the employee does not join, then they can be put through disciplinary proceedings for unauthorized absence.

Regards

There is no direct linkage between union and sick leave officially. Take higher management into confidence and treat employees like anyone else. Empathy should guide you to take any legal recourse.

Yes, any employees may be discharged or terminated after following prescribed preconditions. Compliance with disciplinary requirements is applicable to all employees, including protected workmen who may also be subject to disciplinary actions.

Thank you!

Union members are not immune from any proceedings or disciplinary action. There are several judgments on that issue. Therefore, you can conduct a disciplinary inquiry against him for unauthorized absenteeism and dismiss him from services.

Dear Fellow Colleague, I want to share my experience on the same subject. Please collect all ESIC sickness information slips and visit the ESIC Regional office to submit a letter about this incident along with a copy of all sickness formats. Also, please gather information about the medical referee from the ESIC Regional office.

You can ask the employee to meet the medical referee and insist on obtaining a medical certificate from them immediately. The employee cannot deny this process under any circumstances, and there are two advantages to this process:

1. Your employee's health condition will be recertified by the medical referee (whether it is fake or real).
2. This document can be used as proof during any future inquiries.

Please consider trying this method.

Regards,
Malathesha K S
HRM

You have not provided detailed information about the workmen whom your management wants to terminate for long absences. Now you are revealing that the sickness post-accident of the workmen occurred sometime back.

Key Considerations for Termination

1. Was the workman's accident on or off work?
2. Is the employee a protected workman or just a member of the union?
3. What grounds/conditions are laid down in your standing orders for termination?
4. Management should also follow up with ESI to understand the facts of prolonged illness.
5. Similarly, management needs to discuss the matter with the Union before taking any action.

The management can consider termination but should ensure it is done properly to avoid any repercussions.