How Should We Handle Employees Not Returning Post-Lockdown and Union Pressure?

Dear Leaders,

Please guide us in a genuine way on how to handle the below situation.

Background of the Situation

We are a manufacturing organization in Maharashtra. Our plant is in a rural area, Zone III. Due to the nationwide lockdown, many of our workers and supervisors went back to their hometowns. From 31st May, as partial manufacturing operations resumed with 30% of employees, we sent out emails instructing our employees to return to work from 15th June.

Some employees provided a timeline for their return and stayed in continuous communication with us. We paid their salaries, and they resumed duty by mid-July, considering the transportation feasibility based on their location.

Current Issue with Non-Responsive Employees

However, there are still 12-15 employees who have not reported back to work. They have been unresponsive to emails, messages, and calls from HR and HOD, leading us to withhold their salaries.

Union Involvement and Challenges

Today, a local union (Name confidential) visited our office, claiming that these employees have approached them to form a union and have accused the employer of termination.

Despite presenting all call logs, messages, and emails to the union body to demonstrate the employees' lack of attendance, the local union is pressuring us to allow union formation, citing the employees' active status within the organization. They are also persuading internal employees to sign union forms.

Request for Guidance

Please advise on how to proceed in this situation.

We have all the necessary evidence to show that these employees failed to report to work, necessitating their replacement and the issuance of termination letters as per the terms outlined in the appointment letter. The company must continue its operations, and we waited until July before considering termination. However, the union rejects the termination letters along with settlements.

We are an MSME with 225 staff, all falling under the supervisor category.

Thank you for your guidance.

I understand the situation you are in. Dealing with hostile labor unions is no easy task. On the one hand, the union government is interested in promoting "ease of doing business," and on the other side, the factory owners face this kind of situation.

Nevertheless, the city of Mumbai is not new to labor union militancy. Today's unions are carrying the legacy of Datta Samant. Because of this misplaced aggressiveness by the labor unions, a lot of factories were either closed or moved to other states. The state of Maharashtra has paid a heavy price for the parochialism by the labor unions.

Each labor union is affiliated with some political party. The labor unions cannot muster the courage without patronage by a political party. Therefore, explore the possibility of taking the labor union into confidence. In the meantime, as a temporary measure, try filling the vacancies through contract labor.

Keep the absent workers on your roll. Stop contacting them. However, when they return, you may take them on the roll but remove them one by one through some other reason and not the reason for their absence.

I have offered you the solution from my side. Other senior members may provide their valuable inputs.

Thanks,

Dinesh Divekar

Managing Contract Labor in Challenging Times

In these difficult times, we must navigate carefully. Managing with contract labor might pose issues of permanency since the work is ongoing. At the same time, without separating the employees who have not reported yet but are still on the roll, decisions must be made. Imagine if all employees report back and you still have contract labor, resulting in surplus labor. If the contract labor forms a union backed by an active party, they might demand permanency.

I suggest issuing a final notice by registered mail with acknowledgment due, providing only one week's time to report. Those who report can be taken on duty, treating them as "absent with leave without pay" after obtaining the necessary letters of request. In case of non-compliance, proceed with termination and fill the vacancies with contract labor. Ensure to keep the Labor Commissioner updated on every step you take. Do not encourage 'idle wages' for those not reporting. Yielding to pressure and allowing them to continue like this would affect the morale of employees who have already reported and are on regular duty. In the worst-case scenario, consider declaring a 'lockout' if they resort to agitations.

Thank you for your valuable guidance. Yes, we will do the same. We stopped their salary because the workers who are working all raised a flag together against us paying the salary to employees sitting at home. We are badly stuck in the situation.

Dear colleague, you have to make a decision on whether to confront the union formation process or deal with it as and when it is formed.

Remember that the formation of the union is their fundamental right. However, you can stall it by winning over the workers who have reported for work or are working on your side and persuading them not to join the union. If you succeed, in case a union is formed, it will be a minority union that cannot have as much influence as a majority union.

Regarding those to whom you have sent termination letters that were returned unaccepted, keep the matter pending for a possible solution. However, do not recruit anybody at this stage to replace them.

The success or failure of the union formation needs to be monitored, and during this transitional phase, it is better to wait and observe for things to become favorable.

In the meantime, continue to seek advice from a local competent labor advocate or consultant to manage any potential escalation.

Regards,

Vinayak Nagarkar HR and Employee Relations Consultant

Check your staff attendance and issue notices to all those who are absent. If the notices are returned as 'undelivered,' 'refused,' or 'addressee not found,' publish an advertisement in local newspapers quoting their names and warning them to report to duty immediately. Failure to do so will result in them being treated as absconders. This group may try to organize a protest or gate meeting, which is prohibited under Covid-19 guidelines. If they proceed with such actions, file a police complaint noting their names. There is no room for raising an 'industrial dispute' or issuing a 'strike notice' as their actions are unlawful. Address each case individually by initiating disciplinary action for absenteeism.

Dear HR leader, we have faced this issue with many of our clients. We advised them to initiate disciplinary action against the absentee workers. Accordingly, inquiries were conducted. You cannot send the message to other workers that the high-handed attitude of the union threats will be tolerated and the management bows down to pressure. If they get violent, you should seek help from police authorities to maintain law and order. The union will have to realize that arm-twisting tactics don't help in IR situations; otherwise, they will use this as a tool to get their demands met.

Disciplinary Action Procedure

I endorse the view to proceed with disciplinary action. Issue a charge sheet quoting the relevant misconduct under the Certified Standing Orders, if the establishment has one. If not, refer to the clauses relating to unauthorized continuous absence for more than 10 days in the Model Standing Orders. Send the letter through RPAD, email, or WhatsApp. If you see a double blue tick, take a color photocopy and keep it safe.

If no reply is received within 3 days, please issue a reminder notice. If there is still no reply, or if a reply is received, send an inquiry notice. It is advisable to conduct the inquiry outside the establishment. The inquiry officer can be an internal or external person. Allow a co-worker to assist the delinquent. Conduct a transparent inquiry adhering to the principles of natural justice, such as audi alteram partem.

If the individual is absent for the inquiry, record the proceedings and send a copy through RPAD, email, or WhatsApp each time, allowing for three adjournments. Treat the individual as ex parte, and the inquiry officer will submit the inquiry findings report. Based on the report, issue a termination order. If my memory serves me correctly, in Maharashtra, a second show-cause notice is not required. You can also conduct the inquiry through Zoom or Teams to ensure safety against COVID-19 and external forces.

Regards, K. S. PASUPATHI