I would like to inquire about the termination of an employee due to habitual unauthorized absences. According to our standing order, if an employee is absent without authorization for more than 8 days, their service will be considered as a voluntary abandonment of employment. Would this policy be upheld if we terminate the employee on these grounds? Kindly advise.
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From India, Bangalore
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5Regards
From India, Bangalore
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In case of termination due to habitual absenteeism, first of all, what does your HR policy say? Or do you have a registered standing order?
Standard Process for Lawful Termination
The standard process to handle this lawfully is to issue a show cause notice or charge sheet to the employee before termination. This notice should ask the employee to provide clarification on such behavior within the prescribed time limit, based on the principles of natural justice. If the employee fails to reply satisfactorily within the prescribed time limit, it can be treated as termination of their service.
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From India, Mumbai
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Standard Process for Lawful Termination
The standard process to handle this lawfully is to issue a show cause notice or charge sheet to the employee before termination. This notice should ask the employee to provide clarification on such behavior within the prescribed time limit, based on the principles of natural justice. If the employee fails to reply satisfactorily within the prescribed time limit, it can be treated as termination of their service.
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From India, Mumbai
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Thank you for your response. Yes, we do have a standing order registered. The standing order states that any employee not coming for duty without information beyond 8 working days can have their service treated as voluntary abandonment of service. Therefore, we have sent an unauthorized notice to the employee after 4 days of absence, instructing them to resume duty immediately.
Question on Termination Process
My question is, if the employee does not resume duty within the stipulated time and does not reply to the notice, can we terminate them without issuing any further charge sheet? The standing order clearly states that their service can be treated as voluntary abandonment of service.
Is this the correct course of action?
Regards,
Chaitra
From India, Bangalore
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Question on Termination Process
My question is, if the employee does not resume duty within the stipulated time and does not reply to the notice, can we terminate them without issuing any further charge sheet? The standing order clearly states that their service can be treated as voluntary abandonment of service.
Is this the correct course of action?
Regards,
Chaitra
From India, Bangalore
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Before taking any disciplinary action against the guilty, under the prevailing laws and adhering to the process of natural justice, an opportunity should be afforded to the employee concerned by way of a show cause notice, charge sheet, etc. You have given a notice of absenteeism which might have been received by the employee concerned, and if not responded to within the stipulated time period, at least two more opportunities may be given on the expiry of each show cause notice. The further process depends upon the reply/response, whether he accepts the charge or what kind of submission/documentation he presents.
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P. K. Sharma
From India, Delhi
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Regards,
P. K. Sharma
From India, Delhi
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Probably, you may like to consider the following:
Voluntary Abandonment and Termination Procedures
Voluntary abandonment does not hold good these days, even if a provision exists in standing orders. You need to conduct a domestic enquiry and terminate the employee after due procedures. There have been a lot of judgments in this respect. Even though this may take a little time, it is required for the drastic action that you are going to take. Since the charge will be "absence without leave/sanction/information," the employee may not turn up for the enquiry; hence, an ex-parte procedure should be followed without any flaw. You may also comply with sec.33 of the ID Act.
Regards,
V K Sajan
From India, Bangalore
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Voluntary Abandonment and Termination Procedures
Voluntary abandonment does not hold good these days, even if a provision exists in standing orders. You need to conduct a domestic enquiry and terminate the employee after due procedures. There have been a lot of judgments in this respect. Even though this may take a little time, it is required for the drastic action that you are going to take. Since the charge will be "absence without leave/sanction/information," the employee may not turn up for the enquiry; hence, an ex-parte procedure should be followed without any flaw. You may also comply with sec.33 of the ID Act.
Regards,
V K Sajan
From India, Bangalore
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Adding to what has been said by others, as the name itself suggests, 'habitual absentee' means that the individual should be continuously absent on more than one occasion. After exploiting other methods like issuing warnings and suspensions, then he could be charged. Even then, other options like increment cuts, downgrading to the lowest scale of pay, and/or demotion to lower posts could be considered as soft punishments before the capital punishment of termination is decided upon following a formal inquiry.
I think this should be a fair exercise of natural justice from the employee's perspective. However, any decision would depend on the past record, performance, and conduct of this individual. We have seen a few known good workers who sometimes happen to be habitual spendthrifts, boozers, or dealing with unresolved family problems, failed love affairs, or broken relationships. These could be reasons for behaviors like this, but considering their caliber, they are tolerated if they are otherwise normal and competent when on duty and cooperate well with their colleagues in discharging their duties.
From India, Bangalore
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I think this should be a fair exercise of natural justice from the employee's perspective. However, any decision would depend on the past record, performance, and conduct of this individual. We have seen a few known good workers who sometimes happen to be habitual spendthrifts, boozers, or dealing with unresolved family problems, failed love affairs, or broken relationships. These could be reasons for behaviors like this, but considering their caliber, they are tolerated if they are otherwise normal and competent when on duty and cooperate well with their colleagues in discharging their duties.
From India, Bangalore
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If a rule is specified in the standing order, then legally, you have the right to take action against him as mentioned in the standing order. However, as one of the members said, a domestic inquiry needs to be conducted. As I mentioned earlier, the first step of a domestic inquiry is to issue him the charge sheet. If he replies, then the inquiry can start or be initiated. However, he has not responded to the same, so it shall be presumed that he is guilty of the said charges.
Please note that not responding to the charge sheet may create a perception that the employee is not taking the company's policies, culture, rules, and regulations seriously and responsibly. As an employee, he is bound to follow and respect the same.
Labour laws are made to prevent the exploitation of employees. However, if an employee misuses or tries to hide behind them for personal interest, then the company also has the right to defend itself. The key is for the company to handle this case diplomatically and smartly.
Kindly let me know if you need further assistance or clarification.
Thank you.
From India, Mumbai
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Please note that not responding to the charge sheet may create a perception that the employee is not taking the company's policies, culture, rules, and regulations seriously and responsibly. As an employee, he is bound to follow and respect the same.
Labour laws are made to prevent the exploitation of employees. However, if an employee misuses or tries to hide behind them for personal interest, then the company also has the right to defend itself. The key is for the company to handle this case diplomatically and smartly.
Kindly let me know if you need further assistance or clarification.
Thank you.
From India, Mumbai
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VAOS - Voluntary Abandonment of Service - S.O.
Though the Standing Order (S.O.), as certified, provides for the removal of a person on the grounds of being absent for more than 8 days, the rules of natural justice should be followed. When a worker resigns, all HR problems are solved, but when a worker is removed under VAOS, all HR problems start. HR will be the target if the worker comes back and agitates to be taken back. Hence, even if there is a delay, the worker's intention should be understood. After all options are exhausted, such as issuing a Show Cause Notice, conducting an inquiry, publishing in newspapers, Notice Boards, etc., HR must be cautious, and every care should be taken before terminating.
Regards
From India, Bangalore
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Though the Standing Order (S.O.), as certified, provides for the removal of a person on the grounds of being absent for more than 8 days, the rules of natural justice should be followed. When a worker resigns, all HR problems are solved, but when a worker is removed under VAOS, all HR problems start. HR will be the target if the worker comes back and agitates to be taken back. Hence, even if there is a delay, the worker's intention should be understood. After all options are exhausted, such as issuing a Show Cause Notice, conducting an inquiry, publishing in newspapers, Notice Boards, etc., HR must be cautious, and every care should be taken before terminating.
Regards
From India, Bangalore
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I have gone through your query and the replies to the thread. I wish to add or amend as follows:
Clarification on Standing Orders
In reply to Sh Tushr's mail, you have clarified to him that "Yes, we do have a standing order registered." Let me make it clear that the standing orders of an establishment are regulated under the Industrial Employment (Standing Orders) Act, 1946, and rules made thereunder. There are no provisions for registration under the Act; rather, it is the "certification" of standing orders by the Certifying Officer.
Termination for Habitual Unauthorized Absence
You have inquired about termination due to habitual unauthorized absence. Let me clarify that it is not as simple as it appears. First of all, the management has to prove by showing the occasions on which the delinquent remained absent and should have warned him from time to time.
Principles of Natural Justice
Though it is customary to have such a clause in the standing orders of the establishment, in practice, you need to follow the "Principles of Natural Justice" by issuing a show cause notice (not a charge sheet as some members have mentioned) seeking his explanation for the absence. Then you have to examine his reply and take action.
Opinion on Termination Process
In my opinion, even following the proper procedure and terminating one's services for unauthorized absence for more than 8 days by applying the standing order clause of 'voluntary abandonment of service' will not be considered proper and just. Such an action may be considered as too harsh by the court of law when a lesser punishment of minor magnitude could have met the requirement.
Regards,
BS Kalsi
Member since Aug 2011
From India, Mumbai
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Clarification on Standing Orders
In reply to Sh Tushr's mail, you have clarified to him that "Yes, we do have a standing order registered." Let me make it clear that the standing orders of an establishment are regulated under the Industrial Employment (Standing Orders) Act, 1946, and rules made thereunder. There are no provisions for registration under the Act; rather, it is the "certification" of standing orders by the Certifying Officer.
Termination for Habitual Unauthorized Absence
You have inquired about termination due to habitual unauthorized absence. Let me clarify that it is not as simple as it appears. First of all, the management has to prove by showing the occasions on which the delinquent remained absent and should have warned him from time to time.
Principles of Natural Justice
Though it is customary to have such a clause in the standing orders of the establishment, in practice, you need to follow the "Principles of Natural Justice" by issuing a show cause notice (not a charge sheet as some members have mentioned) seeking his explanation for the absence. Then you have to examine his reply and take action.
Opinion on Termination Process
In my opinion, even following the proper procedure and terminating one's services for unauthorized absence for more than 8 days by applying the standing order clause of 'voluntary abandonment of service' will not be considered proper and just. Such an action may be considered as too harsh by the court of law when a lesser punishment of minor magnitude could have met the requirement.
Regards,
BS Kalsi
Member since Aug 2011
From India, Mumbai
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