Can Employers Warn Temporary Workers for Misconduct? Seeking HR Insights

Hi HR Fraternity, I need your opinion regarding issuing warning letters and show-cause notices to temporary employees. Can the principal employer issue any warning letters to temporary employees for misconduct?

When you mention 'Principal Employer,' does it mean that the temporary workmen are working through a contractor or directly recruited by you?

If they are working under a contractor (whether licensed or not), why can't you direct the contractor to remove the workmen and ask for a replacement?

How long have the temporary workmen been working in your establishment, directly or indirectly, on a continuous service basis?

Why do you want to retain a temporary workman, knowing the fact that they were found involved in misconduct?

To answer your query, I need clarification on all the above points.

Difference Between Temporary and Contract Employees

Temporary employees and contract employees are different. In the case of contract employees, you shall not issue any letter directly to them. They are the employees of the contractor, and all actions on service matters are to be taken by him. You have no role in such communications.

Handling Temporary Employees

As for your temporary employees, you are their direct employer and not the principal employer. Please have this clarity.

Clarification on Temporary Workmen

Q - When you mention 'Principal Employer', does it mean that the temporary workmen are working through a contractor or directly recruited by you?
A - The worker is employed under a contractor for housekeeping work.

Q - If working under a contractor (whether licensed or not), why can't you direct him to remove the workmen and ask for a replacement?
A - The worker has been with us for the last 7 years, so we want to give him a chance.

Q - How long has the temporary workman been working in your establishment, directly or indirectly, on a continuous service basis?
A - He has been working for 7 years as a sweeper.

Q - Why do you want to retain a temporary workman, knowing the fact that he was found involved in misconduct?
A - We need to give him a chance. Last week, he was found involved in misconduct and did not obey the supervisor's order.

To answer your query, I need your clarification on all the above points.

If he is a contract worker, this issue should be raised by your contractor. They will have to address this issue. You can record your observations and suggestions through mail to the contractor. They will conduct their internal disciplinary proceedings and share the results with you. If you are not satisfied with the action taken, you can escalate it to the senior management team of your contractor.

Contractor Compliance and Employee Rights

If you have been working under a contractor for 7 years without a valid license obtained by the contractor under the Contract Labour (Regulation and Abolition) Act, you face a "Damascus Sword" of eventual claims or liabilities. This includes the potential for permanent status, gratuity, and other benefits applicable to permanent workmen of your establishment at the time of attrition.

In your case, as rightly mentioned by the learned friends above, you may ask the contractor to correct or warn the workmen, as you have no control over the said workmen as per the contract agreement.

Dear Vinit,

Thank you for putting the details clearly.

1. Never have any direct communication with a contract employee except with regard to something directly connected with work procedure or quality. The moment you issue a notice of misconduct, you are giving proof that he is your employee, working under your direct supervision and control. After that, if the worker asks for permanency and shows this as proof, the court is likely to give a judgment in favor of the employee and make her your direct and permanent employee.

So what you need to do is to send an email/letter/notice to the contractor, bringing the matter to his attention, and then ask him to take appropriate action. Privately, you can tell him what you want him to do, but any show-cause to be issued must be by him.

2. Regarding the reply by Mr. Babu, he has brought out an important point that a contract worker working for 7 years is likely to be made permanent because it violates the rule that permanent jobs should not be contracted out. But it makes no difference whether the contract is licensed or not.

Guidance on Issuing Warning Letters to Contractor's Employees

Your question has been answered by senior members and experts of the CiteHR Forum. They have advised that as a principal employer, you must not issue a show cause or warning letter to a contractor's employee. I would like to emphasize that as a principal employer, you should exercise caution when dealing with female workers due to instances of complaints being made under the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013. It is important to be vigilant and address any concerns by discussing them with your contractor to find a suitable solution.

Regards,
Chandra Mani Lal Srivastava
Master Consultants
[Phone Number Removed For Privacy-Reasons]
[Email Removed For Privacy Reasons]
New Delhi.

As he is an outsourced employee, inform your observations and recommendations to the contractor. Any warning has to be given by the contractor, not by you as the "Principal Employer." He is employed by the contractor on behalf of the principal employer. You can warn verbally but not in writing. That part has to be done by the contractor. You can let the employee know what you would do if he were a good employee.

From your post, it seems that you have hired a contract employee as a temporary employee. In that case, the Principal Employer is the person hired by the original company. Your company is the hiring company from the Principal Employer. The employee is hired for a specific period as per their Purchase Order. Normally, the employee collects the Purchase Order and hands it over to the Principal Employer.

As long as this principal method exists, you can give notice to the employee with a copy to the Principal Employer. A copy is handed over to the employee and acknowledged by them with date and time. This is then sent to the Principal Employer immediately. By this, the Principal Employer knows the action from the Contractor who has a grievance and notice given to the employee for misconduct or work ethics. This will lead to appropriate action such as a monetary or verbal warning by the Principal Employer.

At times, the employee is changed and replaced with a new employee, and a new Purchase Order in their name is requested. In every case, the Time Sheet is to be filled out and mentioned as the final day of work, indicating action for the stoppage of this employee. This is because the Purchase Order and subsequent Time Sheet are relevant documents for the submission of invoices by the Principal Employer to the Company for the services rendered.