We have a workman in our plant who is found to be engaged in anti-management activities, such as inciting workmen against management and stopping workers from attending duties.
Considering Termination Without Charges
We are considering terminating him; however, so far, no charges have been levied against him. Can we terminate him without giving any charge sheet, show cause notice, followed by a domestic inquiry?
From India, Suri
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4Considering Termination Without Charges
We are considering terminating him; however, so far, no charges have been levied against him. Can we terminate him without giving any charge sheet, show cause notice, followed by a domestic inquiry?
From India, Suri
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No, you cannot terminate an employee without informing him of the actions he has taken against company policies and without giving him an opportunity to defend himself against the charges leveled against him. If you do not follow the basic principles of natural justice, you may have to reinstate him at a later stage, i.e., when the court intervenes.
Therefore, collect evidence of his involvement in anti-management activities, instigating others, or preventing others from performing their duties, and then issue a charge sheet based on the evidence. He should be given adequate opportunities to be heard by asking him to reply to the charges or actions sought against his misconduct and by allowing him to examine or cross-examine the witnesses before the Enquiry Officer. Once these processes are over, you can make a final decision, and that should also be communicated to him along with a copy of the inquiry report. Termination will be valid only if you follow the above procedure.
Regards,
Madhu.T.K
From India, Kannur
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Therefore, collect evidence of his involvement in anti-management activities, instigating others, or preventing others from performing their duties, and then issue a charge sheet based on the evidence. He should be given adequate opportunities to be heard by asking him to reply to the charges or actions sought against his misconduct and by allowing him to examine or cross-examine the witnesses before the Enquiry Officer. Once these processes are over, you can make a final decision, and that should also be communicated to him along with a copy of the inquiry report. Termination will be valid only if you follow the above procedure.
Regards,
Madhu.T.K
From India, Kannur
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Any termination of services of a workman (except for retrenchment), if done without a legal domestic inquiry wherein sufficient opportunity is given to defend as per the principles of natural justice, will be deemed illegal. The concerned court will issue a stay order against such termination. Furthermore, when deciding on the punishment, you must consider that "The punishment should not be disproportionate to the gravity of the misconduct."
Regards,
S D Patil
From India, Kolhapur
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Regards,
S D Patil
From India, Kolhapur
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Dear Rajeevji, you cannot terminate any employee without giving them the opportunity to be heard. As per the law, you have to prove the charges against the worker, and if the charges are proven, then you can terminate them following the legal procedure.
From India, Mumbai
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From India, Mumbai
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At the outset, I completely agree with Mr. Madhu and others. You ought to follow the principles of natural justice before you terminate.
Considerations for Termination
To help you troubleshoot your situation, I am trying to bring some aspects for your consideration:
1. In IR management, the law cannot replace managerial courage of conviction. If the employer is weak-kneed, the law cannot grant any strength, even when the workman is wrong!
2. I am assuming that the fellow you want to sack holds some nuisance value and maybe, his opinion counts amongst the workmen. So please evaluate how other workmen will react and how the company will react upon termination. Map how various situations will unfold and how you want the end-game to be. If the employer needs to be in charge of the situation even in adversity, there is no alternative to good homework. Employers usually approach rationally (or in cold blood!) and workmen - emotionally!
3. You can suspend the employee pending an inquiry. The suspension notice can state that the chargesheet will follow (and make sure it follows!). Keep a copy of the same at the factory gate and serve it if and when he comes. Paste one copy on the gate and another to be sent to his address by registered post. The messaging to general workmen that your company wishes to achieve will be accomplished. Complete the inquiry, and if the workman is found guilty, you issue the second show cause, etc., and bring finality. It will take managerial time, money, and grit!
4. There is a provision under S-11A under the Industrial Disputes Act, 1947, where evidence can be adduced in court by rival parties in case the domestic inquiry is defective. In the eyes of the law, no inquiry and defective inquiry are the same! However, you need to examine all aspects under this provision vis-a-vis your facts with a good lawyer. In the absence of data, it's not fair for me to hazard an opinion.
5. If you are in Maharashtra or are covered by any state law similar to Maharashtra's MRTU & PULP Act, you will need to also fortify yourself in case the worker chooses to go for an Unfair Labor Practice Complaint.
Do keep posting your developments and learnings in common interest!
Cheers and good luck!
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Considerations for Termination
To help you troubleshoot your situation, I am trying to bring some aspects for your consideration:
1. In IR management, the law cannot replace managerial courage of conviction. If the employer is weak-kneed, the law cannot grant any strength, even when the workman is wrong!
2. I am assuming that the fellow you want to sack holds some nuisance value and maybe, his opinion counts amongst the workmen. So please evaluate how other workmen will react and how the company will react upon termination. Map how various situations will unfold and how you want the end-game to be. If the employer needs to be in charge of the situation even in adversity, there is no alternative to good homework. Employers usually approach rationally (or in cold blood!) and workmen - emotionally!
3. You can suspend the employee pending an inquiry. The suspension notice can state that the chargesheet will follow (and make sure it follows!). Keep a copy of the same at the factory gate and serve it if and when he comes. Paste one copy on the gate and another to be sent to his address by registered post. The messaging to general workmen that your company wishes to achieve will be accomplished. Complete the inquiry, and if the workman is found guilty, you issue the second show cause, etc., and bring finality. It will take managerial time, money, and grit!
4. There is a provision under S-11A under the Industrial Disputes Act, 1947, where evidence can be adduced in court by rival parties in case the domestic inquiry is defective. In the eyes of the law, no inquiry and defective inquiry are the same! However, you need to examine all aspects under this provision vis-a-vis your facts with a good lawyer. In the absence of data, it's not fair for me to hazard an opinion.
5. If you are in Maharashtra or are covered by any state law similar to Maharashtra's MRTU & PULP Act, you will need to also fortify yourself in case the worker chooses to go for an Unfair Labor Practice Complaint.
Do keep posting your developments and learnings in common interest!
Cheers and good luck!
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All the suggestions that you have given are absolutely correct, and I am in agreement with them. I just want to add that if a workman makes the same mistake repeatedly, let him do so. He is supposed to make that mistake three or more times. You can issue him a show cause notice and then proceed with strong disciplinary action (suspension, etc.) based on the Standing Orders. Send out notices to the shop floor to spread this information so that the situation can be controlled.
Regards,
Sachin Gaikwad
From India, Pune
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Regards,
Sachin Gaikwad
From India, Pune
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Bangladesh Labor Law 2006, Section 26
26. Termination of employment by employers otherwise than by dismissal, etc.:
(1) The employment of a permanent worker may be terminated by the employer, otherwise than in the manner provided elsewhere in this chapter, by giving to him in writing:
- (a) One hundred and twenty days' notice, if he is a monthly rated worker;
- (b) Sixty days' notice, in the case of other workers.
(2) The employment of a temporary worker may be terminated by the employer, otherwise than in the manner provided elsewhere in this chapter, and if it is not due to the completion, cessation, abolition, or discontinuance of the temporary work for which he was appointed, by giving to him in writing:
- (a) Thirty days' notice, if he is a monthly rated worker;
- (b) Fourteen days' notice, in the case of other workers.
(3) Where an employer intends to terminate the employment of a worker without any notice, he may do so by paying to the worker wages in lieu of the notice, which is required to be given under subsection (1) or (2), as the case may be.
(4) Where the employment of a permanent worker is terminated under this section, he shall be paid by the employer compensation at the rate of thirty days' wages for every completed year of service or gratuity, if any, whichever is higher, in addition to any other benefit to which he may be entitled under this Act.
From Bangladesh
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26. Termination of employment by employers otherwise than by dismissal, etc.:
(1) The employment of a permanent worker may be terminated by the employer, otherwise than in the manner provided elsewhere in this chapter, by giving to him in writing:
- (a) One hundred and twenty days' notice, if he is a monthly rated worker;
- (b) Sixty days' notice, in the case of other workers.
(2) The employment of a temporary worker may be terminated by the employer, otherwise than in the manner provided elsewhere in this chapter, and if it is not due to the completion, cessation, abolition, or discontinuance of the temporary work for which he was appointed, by giving to him in writing:
- (a) Thirty days' notice, if he is a monthly rated worker;
- (b) Fourteen days' notice, in the case of other workers.
(3) Where an employer intends to terminate the employment of a worker without any notice, he may do so by paying to the worker wages in lieu of the notice, which is required to be given under subsection (1) or (2), as the case may be.
(4) Where the employment of a permanent worker is terminated under this section, he shall be paid by the employer compensation at the rate of thirty days' wages for every completed year of service or gratuity, if any, whichever is higher, in addition to any other benefit to which he may be entitled under this Act.
From Bangladesh
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As some colleagues suggested, it is a matter of maintaining discipline in the establishment. Please assess the situation before taking such a drastic action of terminating without an inquiry. Keeping aside the legal position for a while, how the other workmen react is important. If he had a stronghold on the workers, take a little time and follow the procedure. If he is creating such a nuisance that is causing a bigger problem or affecting discipline inside, take immediate action by suspending him pending an inquiry. Also, give feelers to opinion makers about the future course of action and the loss to the organization because of his activities. This will help you to reduce adversity on management when the final step is taken. Additionally, people will be mentally prepared for such a situation.
From India, Hyderabad
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From India, Hyderabad
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Consider Transferring the Employee
Why don't you consider transferring him to another location, creating new opportunities, perhaps in a different state? Provide him with accommodation arrangements along with a promotion, so it does not appear malicious. It is the employer's prerogative, and if he declines, he will have the option to either leave or remain in the same position quietly.
Regards,
V. Balaji
From India, Madras
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Why don't you consider transferring him to another location, creating new opportunities, perhaps in a different state? Provide him with accommodation arrangements along with a promotion, so it does not appear malicious. It is the employer's prerogative, and if he declines, he will have the option to either leave or remain in the same position quietly.
Regards,
V. Balaji
From India, Madras
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ou should terminate employees by giving them valid reason, you should take take this step as soon as possible because it may be create dispute with other employee.
From India, Ahmedabad
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From India, Ahmedabad
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On matters which are before the Court, we cannot make any formal opinion. Moreover, you have not shared much of the vital information through the post. For instance, you mentioned that you approached the "Shops and Establishment" to get your salary paid "as per an Apex Court Order." Can you quote which order of the Supreme Court of India you referred to before the District Labour Officer-IR (I presume you have approached the Labour Officer)?
When the case came up for hearing, you absented yourself, and the verdict was passed ex-parte by the Labour Court/Tribunal. Why did you absent yourself from the hearing? I don't think that they did not give you enough opportunities, and all this time you had family problems. However, attending the hearing is also a very important issue which you should not have ignored. If the departmental enquiry was conducted following the required procedure, you cannot say that the order is illegal. If so, no court can interfere in the findings and punishments awarded based on the findings of the Enquiry Officer. Certainly, if the order of dismissal was given without giving you an opportunity to be heard or without following the procedures required for a departmental enquiry, you could expect a reinstatement. But since you were absent from the hearings, the court would have upheld the order of dismissal in the absence of any evidence from your side. Now you have to wait and see what will happen.
Regards,
Madhu.T.K
From India, Kannur
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When the case came up for hearing, you absented yourself, and the verdict was passed ex-parte by the Labour Court/Tribunal. Why did you absent yourself from the hearing? I don't think that they did not give you enough opportunities, and all this time you had family problems. However, attending the hearing is also a very important issue which you should not have ignored. If the departmental enquiry was conducted following the required procedure, you cannot say that the order is illegal. If so, no court can interfere in the findings and punishments awarded based on the findings of the Enquiry Officer. Certainly, if the order of dismissal was given without giving you an opportunity to be heard or without following the procedures required for a departmental enquiry, you could expect a reinstatement. But since you were absent from the hearings, the court would have upheld the order of dismissal in the absence of any evidence from your side. Now you have to wait and see what will happen.
Regards,
Madhu.T.K
From India, Kannur
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All the suggestions you have given are absolutely correct, and I am in agreement with them. I just want to add that if the workman is making the same mistake, let him do so; at least he is supposed to make that mistake three or more times. You can issue him a show cause notice and then proceed with strong disciplinary action (suspension, etc.) based on the standing order background. Send the fillers to the shop floor to spread this information so that the situation can be controlled.
Regards,
Suman K
From India, Hyderabad
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Regards,
Suman K
From India, Hyderabad
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