Dear All,
Can we terminate an employee for insubordination without even giving him a show-cause notice? What will be the consequences of such termination? Can he challenge such termination in the court of law?
Thank you.
From India, Madras
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Can we terminate an employee for insubordination without even giving him a show-cause notice? What will be the consequences of such termination? Can he challenge such termination in the court of law?
Thank you.
From India, Madras
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Dear,
You cannot terminate an employee without giving him the opportunity to explain himself or defend himself. You have to follow the principles of natural justice and complete all formalities. However, termination can be challenged even after completing all formalities, but your case will be a little stronger.
Thank you.
J.S. Malik
From India, Delhi
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174You cannot terminate an employee without giving him the opportunity to explain himself or defend himself. You have to follow the principles of natural justice and complete all formalities. However, termination can be challenged even after completing all formalities, but your case will be a little stronger.
Thank you.
J.S. Malik
From India, Delhi
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Dear Friend I am attaching a PPT on disciplinary action which can be useful for u to go further. regards alphonse 9443625359
From India, Madras
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From India, Madras
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Hi Pramod!
You cannot terminate an employee for the cause of "insubordination." The employee you are referring to may claim that he/she is being subjected to mental harassment by the boss (whoever it is). In such a case, the employee will have a strong case.
If the employee is not performing the assigned job properly or as per the requirements, the employer can issue a warning letter stating that within a specified time frame, if he/she fails to enhance his/her skills to meet the company's needs, appropriate action will be taken, which could lead to termination of service.
Such grounds should be established before taking any steps to remove troublesome employees to prevent legal issues.
RP
From India, Bhopal
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You cannot terminate an employee for the cause of "insubordination." The employee you are referring to may claim that he/she is being subjected to mental harassment by the boss (whoever it is). In such a case, the employee will have a strong case.
If the employee is not performing the assigned job properly or as per the requirements, the employer can issue a warning letter stating that within a specified time frame, if he/she fails to enhance his/her skills to meet the company's needs, appropriate action will be taken, which could lead to termination of service.
Such grounds should be established before taking any steps to remove troublesome employees to prevent legal issues.
RP
From India, Bhopal
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Dear [Name],
Our friend has provided a presentation, but to summarize, you must issue a show cause notice. This should include explaining the complete charges, requesting an explanation, setting up a domestic inquiry, issuing a second show cause notice, and only then proceeding with termination. Please note that the punishment should be proportionate to the gravity of the offense.
Thank you.
J. S. Malik
From India, Delhi
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Our friend has provided a presentation, but to summarize, you must issue a show cause notice. This should include explaining the complete charges, requesting an explanation, setting up a domestic inquiry, issuing a second show cause notice, and only then proceeding with termination. Please note that the punishment should be proportionate to the gravity of the offense.
Thank you.
J. S. Malik
From India, Delhi
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Dear,
As per the judgment of various courts, termination for insubordination for the first time will not be the right course of action. First, give him a memo asking for an explanation. If he repeats the behavior for a third time after a second memo, you can proceed with the process of an inquiry, and the inquiry officer should be satisfied. Insubordination can be remedied through effective counseling.
With kind regards,
V. Sounder Rajan
Chennai – 600 001
E-mail: rajanassociates@eth.net
Off: 044-42620864, 044-65874684
From India, Bangalore
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As per the judgment of various courts, termination for insubordination for the first time will not be the right course of action. First, give him a memo asking for an explanation. If he repeats the behavior for a third time after a second memo, you can proceed with the process of an inquiry, and the inquiry officer should be satisfied. Insubordination can be remedied through effective counseling.
With kind regards,
V. Sounder Rajan
Chennai – 600 001
E-mail: rajanassociates@eth.net
Off: 044-42620864, 044-65874684
From India, Bangalore
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Employee is a general term, which can further be subdivided into those governed by the definition of a WORKMAN and others. It is necessary to state whether the Standing Orders Act is applicable to your establishment. Therefore, some more details are required. However, the general proposition that no one should be punished unheard is a basic principle of natural justice and is applicable to all cases.
From India, Pune
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From India, Pune
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Hi, Pls help me out. My query is: In case we want to rehire our ex- employee who left with completing all formalities. Do we need to issue fresh Appointment letter to him/her Pls help ASAP. Gaurav
From India, Delhi
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From India, Delhi
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Hi Pramod,
You can terminate an employee without giving him any show cause notice. Note one more thing - you can forfeit his gratuity as well. You must send him a termination letter stating the reasons for his termination, explaining his rude and insubordinate behavior, and stating that his services are no longer required. If you need guidance, I can provide assistance.
From India, Indore
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You can terminate an employee without giving him any show cause notice. Note one more thing - you can forfeit his gratuity as well. You must send him a termination letter stating the reasons for his termination, explaining his rude and insubordinate behavior, and stating that his services are no longer required. If you need guidance, I can provide assistance.
From India, Indore
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MILLi yes u need to issue him fresh appointment letter a as per industrial standing orders it is the basic requirment to issue appointment letter to u r employee .
From India, Indore
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From India, Indore
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Dear Pramod,
Hope this details will help. Which i got it recently.
Sources of regulation
The main statutes which regulate termination of employment are the Industrial Employment (Standing Orders) Act (IESA), 1946, and the Industrial Disputes Act (IDA), 1947, as amended. Some States have also passed legislation dealing with dismissal.
Regulations concerning termination of employment are also found in standing orders made pursuant to the IESA. Standing orders are written documents dealing with terms and conditions of employment. Drafted by employers in all establishments, standing orders are documents on which trade unions or workers are given an opportunity to object. They are certified by the government Certifying Officer who adjudicates upon the fairness and reasonableness of the provisions of any standing order and upon its conformity to the model standing order (MSO).
Another source of regulation is the case law of the courts. Any questions arising from the application or the interpretation of a standing order can be raised before the Labour Court and its decision will be final and binding (sec. 17(2), IDA).
In 2002, the 2nd National Commission on Labour produced a report suggesting rationalisation and harmonisation of existing labour legislation, as well as creation of an “umbrella” legislation to ensure a minimum level of protection for the workers in the unorganised (informal) sector. [1] In 2007, labour law reforms are still the subject of tripartite discussions in India.
It should be recalled in this context that 93 per cent of the Indian workforce are employed in the informal sector. [2]
Scope of legislation
The IESA applies to all industrial establishments employing 100 workers or more (sec. 1(3)). The IESA (sec. 2(i)) and IDA (sec. 2(s)) both exclude managerial and administrative employees, those in supervisory positions earning more than a specified statutory amount, as well as members of the Air Force, Army and Police services who are covered by specific legislation.
Contracts of employment
Workers are classified as permanent, probationers, badlis (a “badli” means a worker appointed in the post of a permanent worker or probationer who is temporarily absent), temporary, casual and apprentices (sec. 2, MSO).
Termination of employment
The contract of employment can terminate, not at the initiative of the employer, in certain circumstances, including by:
The law relating to termination of employment in India distinguishes broadly between three different situations: dismissal for misconduct, discharge and retrenchment. Indian law starts from the common law premise that an employer has a right to terminate the services of an employee without giving a reason. [3] However, this position has been affected by legislative intervention and by the development by the courts of natural justice requirements.
As regards termination of employment for disciplinary reasons, some instances of misconduct which may justify dismissal without notice and any compensation in lieu of notice are listed in the MSO and include (secs. 14(2)-(3), MSO):
Thus, the concept of discharge at will can be said to apply only to employees not covered by the IDA, and not dismissed for misconduct.
Termination of employment is unlawful if it is for reasons related to trade union membership or activity; filing complaints concerning the employer; race, colour, sex, marital status, pregnancy, religion, political opinion or social origin. In addition, termination of employment in violation of fair labour practices as defined by legislation or case law will not be valid. The IDA (Fifth Schedule) lists some practices which will be considered to be “Unfair Labour Practices”. These include dismissal on account of trade union activity or membership; dismissal by way of victimization; dismissal not in good faith but in “the colourable exercise of the employer's rights”; dismissal by falsely implicating a worker in a criminal case or on false or trumped-up allegations of absence without leave, dismissal without due regard to natural justice or for minor misconduct leading to disproportionate punishment. The list is not exhaustive.
The Maternity Benefit Act, 1961, provides that absence from work during maternity leave, as allowed under the statute, should not be considered as a valid reason for termination of service. Similarly, employees may not be dismissed or discharged while they are in receipt of a sickness benefit or disablement benefit for temporary disablement or are receiving medical treatment for sickness or are absent from work as a result of certified illness arising out of pregnancy (sec. 73, Employees' State Insurance Act).
Notice and prior procedural safeguards
Under the IESA, employers are required to give in writing one month's notice or payment in lieu of such notice in order to lawfully terminate the employment of permanent monthly-paid workers. The two weeks' notice is required for workers paid on other basis. Notice is not required either for probationers, badlis or temporary workers (sec. 13, MSO).
Notice is not required for workers found guilty of serious misconduct such as would constitute summary dismissal. In case of dismissal on disciplinary grounds, the worker must be given an opportunity of explaining the charges of misconduct alleged against him/her (sec. 13(2), MSO).
Furthermore, despite the fact that an employer is entitled to dismiss an employee for serious misconduct or inadequate performance of work, the rules of natural justice have now influenced labour law jurisprudence in India to the extent that the employer will be required to give the employee a “hearing” to answer the charges before the dismissal is effected. This may take the form of a written complaint to initiate departmental proceedings with a view to disciplinary proceedings, and the hearing may be a mere explanation from the employee or may be a full departmental inquiry into the matter with the necessary documentary evidence. Questions into the legality of dismissal due to misconduct often hinge on the nature of this internal inquiry and the Indian courts, in the interest of good industrial relations, have consistently affirmed the need for the usual rules of natural justice to apply. Central to these rules are the requirements that the employee has a fair hearing, including the right to adduce evidence on his or her behalf and to cross-examine witnesses, and that the hearing be free from bias. An employee who faces a charge of misconduct may also generally expect only a warning if it is a first offence or is not habitual conduct. Where a matter relating to termination is pending before a conciliatory or adjudicatory body, the conditions applicable to the worker may not be altered (sec. 33, IDA).
Under sec. 25F of the IDA, an employer proposing to retrench workers, who have been continuously employed for more than one year, must give one month's notice or pay in lieu of such notice to the worker, and must also notify the relevant governmental authority, giving the reasons for the proposed retrenchment.
Special provisions under the IDA are applicable in relation to industrial establishments employing 100 workers or more. In this case, workers may not be retrenched unless three months' written notice, stating reasons for the retrenchment, or pay in lieu of notice, is given to the worker. In addition, the employer must seek prior authorization from the relevant governmental authority before the retrenchment can be carried out (sec. 25N, IDA).
The concept of “prior authorization” in this context perhaps needs some elaboration here. The Supreme Court of India has recognized the right of management to run its own business as it pleases without any interference by the courts. The decision to retrench is thus left solely up to the discretion of management. The court will inquire only into the closure to verify that it is bona fide and for economic reasons and will not question the motive behind it. The concept of a bona fide redundancy does not, for example, include a situation where retrenchment is carried out in accordance with unfair labour practices or to victimize workers. Consequently, the proper governmental authority is required to examine the reasons given in the notice for the proposed retrenchment to ascertain whether they are in accordance with good labour practice and are for bona fide reasons of redundancy. If this is not found to be so, the governmental authority may refuse permission for the retrenchment, giving its reasons in writing.
In the absence of any agreement between the employer and the workers retrenched as regards the procedure for retrenchment, the employer retrenches the worker who was the last person to be employed in the category, unless for reasons to be recorded the employer retrenches any other worker (sec. 25G, IDA).
Severance pay
In case of retrenchments, employees with more than one year's service, and other than temporary or casual employees, are entitled to compensation equivalent to 15 days' pay for each completed year of service (sec. 25F(b), IDA).
However, a distinction is made for cessation of business for reasons beyond the control of the employer. This might include force majeure, frustration of contract, etc., but does not include financial difficulties or loss of stock. In such circumstances, the employee is still entitled to a redundancy payment, but the amount is less than that given for termination of employment due to other reasons, being a sum equivalent to no more than the average of three months' pay (sec. 25FFF, IDA).
Under the Payment of Gratuity Act, 1972, a worker continuously employed for five years or more is entitled to a gratuity payment upon termination of service, except where such termination has been as a result of his or her wilful omission or negligence resulting in damage or loss of the employer's property, in which case the gratuity is forfeited to the extent of the damage caused. Where the employee has been dismissed on account of his or her riotous, violent or disorderly conduct or for an offence involving moral turpitude committed in the course of employment, the gratuity shall be wholly or partly forfeited. The sum is calculated at 15 days' average pay for every completed year of service.
Avenues for redress
Since the 1965 amendments to the IDA (sec. 2A), the dismissal or retrenchment of an individual is deemed to be an industrial dispute, hence the ability of a worker to take his or her claim to the Labour Courts. Under sec. 2(a) of the IESA, a worker dissatisfied with his or her termination of employment is entitled, in the first instance, to raise the matter as a labour dispute with an officer from the conciliation department of the Ministry of Labour. The officer will attempt to conciliate the matter and must submit a report to the Government if conciliation fails, pending a decision from the governmental authority on whether the matter merits adjudication before the Labour Court or Tribunal.
Challenges to dismissal can be made to the Labour Court under sec. 11A of the Industrial Relations (Amendment) Disputes Act, 1971. The Labour Court may review a termination of employment and set aside a dismissal if it decides that the dismissal was not justified.
No time limit is prescribed within which an aggrieved worker may raise a labour dispute. However, excessive delay may prejudice a worker's case. The burden of proving that dismissal was for a valid reason rests with the employer.
The Labour Court, Industrial Tribunal and National Tribunal have wide discretion to review disputes relating to termination of employment, including the examination of the evidence, and to award relief as they see fit including compensation in the form of damages and reinstatement (sec. 11A, IDA). Before reinstating an employee, the judicial body will inquire into the feasibility of reinstatement; for example, whether the employee has lost confidence in the employer and whether industrial peace and harmony will be threatened.
Regards,
Deva
From India, Madras
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Hope this details will help. Which i got it recently.
Sources of regulation
The main statutes which regulate termination of employment are the Industrial Employment (Standing Orders) Act (IESA), 1946, and the Industrial Disputes Act (IDA), 1947, as amended. Some States have also passed legislation dealing with dismissal.
Regulations concerning termination of employment are also found in standing orders made pursuant to the IESA. Standing orders are written documents dealing with terms and conditions of employment. Drafted by employers in all establishments, standing orders are documents on which trade unions or workers are given an opportunity to object. They are certified by the government Certifying Officer who adjudicates upon the fairness and reasonableness of the provisions of any standing order and upon its conformity to the model standing order (MSO).
Another source of regulation is the case law of the courts. Any questions arising from the application or the interpretation of a standing order can be raised before the Labour Court and its decision will be final and binding (sec. 17(2), IDA).
In 2002, the 2nd National Commission on Labour produced a report suggesting rationalisation and harmonisation of existing labour legislation, as well as creation of an “umbrella” legislation to ensure a minimum level of protection for the workers in the unorganised (informal) sector. [1] In 2007, labour law reforms are still the subject of tripartite discussions in India.
It should be recalled in this context that 93 per cent of the Indian workforce are employed in the informal sector. [2]
Scope of legislation
The IESA applies to all industrial establishments employing 100 workers or more (sec. 1(3)). The IESA (sec. 2(i)) and IDA (sec. 2(s)) both exclude managerial and administrative employees, those in supervisory positions earning more than a specified statutory amount, as well as members of the Air Force, Army and Police services who are covered by specific legislation.
Contracts of employment
Workers are classified as permanent, probationers, badlis (a “badli” means a worker appointed in the post of a permanent worker or probationer who is temporarily absent), temporary, casual and apprentices (sec. 2, MSO).
Termination of employment
The contract of employment can terminate, not at the initiative of the employer, in certain circumstances, including by:
- Mutual agreement;
- Resignation by the employee;
- Employee's retirement; and
- The expiry of a fixed-term contract.
The law relating to termination of employment in India distinguishes broadly between three different situations: dismissal for misconduct, discharge and retrenchment. Indian law starts from the common law premise that an employer has a right to terminate the services of an employee without giving a reason. [3] However, this position has been affected by legislative intervention and by the development by the courts of natural justice requirements.
As regards termination of employment for disciplinary reasons, some instances of misconduct which may justify dismissal without notice and any compensation in lieu of notice are listed in the MSO and include (secs. 14(2)-(3), MSO):
- wilful insubordination or disobedience;
- theft, fraud or dishonesty;
- wilful damage or loss of employer's property;
- bribery;
- habitual lateness or absence; and
- striking unlawfully.
Thus, the concept of discharge at will can be said to apply only to employees not covered by the IDA, and not dismissed for misconduct.
Termination of employment is unlawful if it is for reasons related to trade union membership or activity; filing complaints concerning the employer; race, colour, sex, marital status, pregnancy, religion, political opinion or social origin. In addition, termination of employment in violation of fair labour practices as defined by legislation or case law will not be valid. The IDA (Fifth Schedule) lists some practices which will be considered to be “Unfair Labour Practices”. These include dismissal on account of trade union activity or membership; dismissal by way of victimization; dismissal not in good faith but in “the colourable exercise of the employer's rights”; dismissal by falsely implicating a worker in a criminal case or on false or trumped-up allegations of absence without leave, dismissal without due regard to natural justice or for minor misconduct leading to disproportionate punishment. The list is not exhaustive.
The Maternity Benefit Act, 1961, provides that absence from work during maternity leave, as allowed under the statute, should not be considered as a valid reason for termination of service. Similarly, employees may not be dismissed or discharged while they are in receipt of a sickness benefit or disablement benefit for temporary disablement or are receiving medical treatment for sickness or are absent from work as a result of certified illness arising out of pregnancy (sec. 73, Employees' State Insurance Act).
Notice and prior procedural safeguards
Under the IESA, employers are required to give in writing one month's notice or payment in lieu of such notice in order to lawfully terminate the employment of permanent monthly-paid workers. The two weeks' notice is required for workers paid on other basis. Notice is not required either for probationers, badlis or temporary workers (sec. 13, MSO).
Notice is not required for workers found guilty of serious misconduct such as would constitute summary dismissal. In case of dismissal on disciplinary grounds, the worker must be given an opportunity of explaining the charges of misconduct alleged against him/her (sec. 13(2), MSO).
Furthermore, despite the fact that an employer is entitled to dismiss an employee for serious misconduct or inadequate performance of work, the rules of natural justice have now influenced labour law jurisprudence in India to the extent that the employer will be required to give the employee a “hearing” to answer the charges before the dismissal is effected. This may take the form of a written complaint to initiate departmental proceedings with a view to disciplinary proceedings, and the hearing may be a mere explanation from the employee or may be a full departmental inquiry into the matter with the necessary documentary evidence. Questions into the legality of dismissal due to misconduct often hinge on the nature of this internal inquiry and the Indian courts, in the interest of good industrial relations, have consistently affirmed the need for the usual rules of natural justice to apply. Central to these rules are the requirements that the employee has a fair hearing, including the right to adduce evidence on his or her behalf and to cross-examine witnesses, and that the hearing be free from bias. An employee who faces a charge of misconduct may also generally expect only a warning if it is a first offence or is not habitual conduct. Where a matter relating to termination is pending before a conciliatory or adjudicatory body, the conditions applicable to the worker may not be altered (sec. 33, IDA).
Under sec. 25F of the IDA, an employer proposing to retrench workers, who have been continuously employed for more than one year, must give one month's notice or pay in lieu of such notice to the worker, and must also notify the relevant governmental authority, giving the reasons for the proposed retrenchment.
Special provisions under the IDA are applicable in relation to industrial establishments employing 100 workers or more. In this case, workers may not be retrenched unless three months' written notice, stating reasons for the retrenchment, or pay in lieu of notice, is given to the worker. In addition, the employer must seek prior authorization from the relevant governmental authority before the retrenchment can be carried out (sec. 25N, IDA).
The concept of “prior authorization” in this context perhaps needs some elaboration here. The Supreme Court of India has recognized the right of management to run its own business as it pleases without any interference by the courts. The decision to retrench is thus left solely up to the discretion of management. The court will inquire only into the closure to verify that it is bona fide and for economic reasons and will not question the motive behind it. The concept of a bona fide redundancy does not, for example, include a situation where retrenchment is carried out in accordance with unfair labour practices or to victimize workers. Consequently, the proper governmental authority is required to examine the reasons given in the notice for the proposed retrenchment to ascertain whether they are in accordance with good labour practice and are for bona fide reasons of redundancy. If this is not found to be so, the governmental authority may refuse permission for the retrenchment, giving its reasons in writing.
In the absence of any agreement between the employer and the workers retrenched as regards the procedure for retrenchment, the employer retrenches the worker who was the last person to be employed in the category, unless for reasons to be recorded the employer retrenches any other worker (sec. 25G, IDA).
Severance pay
In case of retrenchments, employees with more than one year's service, and other than temporary or casual employees, are entitled to compensation equivalent to 15 days' pay for each completed year of service (sec. 25F(b), IDA).
However, a distinction is made for cessation of business for reasons beyond the control of the employer. This might include force majeure, frustration of contract, etc., but does not include financial difficulties or loss of stock. In such circumstances, the employee is still entitled to a redundancy payment, but the amount is less than that given for termination of employment due to other reasons, being a sum equivalent to no more than the average of three months' pay (sec. 25FFF, IDA).
Under the Payment of Gratuity Act, 1972, a worker continuously employed for five years or more is entitled to a gratuity payment upon termination of service, except where such termination has been as a result of his or her wilful omission or negligence resulting in damage or loss of the employer's property, in which case the gratuity is forfeited to the extent of the damage caused. Where the employee has been dismissed on account of his or her riotous, violent or disorderly conduct or for an offence involving moral turpitude committed in the course of employment, the gratuity shall be wholly or partly forfeited. The sum is calculated at 15 days' average pay for every completed year of service.
Avenues for redress
Since the 1965 amendments to the IDA (sec. 2A), the dismissal or retrenchment of an individual is deemed to be an industrial dispute, hence the ability of a worker to take his or her claim to the Labour Courts. Under sec. 2(a) of the IESA, a worker dissatisfied with his or her termination of employment is entitled, in the first instance, to raise the matter as a labour dispute with an officer from the conciliation department of the Ministry of Labour. The officer will attempt to conciliate the matter and must submit a report to the Government if conciliation fails, pending a decision from the governmental authority on whether the matter merits adjudication before the Labour Court or Tribunal.
Challenges to dismissal can be made to the Labour Court under sec. 11A of the Industrial Relations (Amendment) Disputes Act, 1971. The Labour Court may review a termination of employment and set aside a dismissal if it decides that the dismissal was not justified.
No time limit is prescribed within which an aggrieved worker may raise a labour dispute. However, excessive delay may prejudice a worker's case. The burden of proving that dismissal was for a valid reason rests with the employer.
The Labour Court, Industrial Tribunal and National Tribunal have wide discretion to review disputes relating to termination of employment, including the examination of the evidence, and to award relief as they see fit including compensation in the form of damages and reinstatement (sec. 11A, IDA). Before reinstating an employee, the judicial body will inquire into the feasibility of reinstatement; for example, whether the employee has lost confidence in the employer and whether industrial peace and harmony will be threatened.
Regards,
Deva
From India, Madras
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Alphonse,
Your presentation is very good. I would also add that whoever is the custodian of Industrial Relations is well-versed and ensures that before issuing a final letter of termination or discharge, they should countercheck that all processes have been adhered to. This should help colleagues who do not have a clearly defined Disciplinary Procedure/Policy.
From Kenya
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Your presentation is very good. I would also add that whoever is the custodian of Industrial Relations is well-versed and ensures that before issuing a final letter of termination or discharge, they should countercheck that all processes have been adhered to. This should help colleagues who do not have a clearly defined Disciplinary Procedure/Policy.
From Kenya
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Hi Pramod,
Termination is the ultimate weapon to be used by the employer - the 'Brahma Astra.'
For it, the employer has to build up the case over a period of time.
In this case of insubordination, the employer may give repeated advisory/warning memos, conduct inquiries after issuing charge sheets, and decide on the quantum of punishment thereafter.
Finally, when the termination order is issued, the world will be with you as he has a history of insubordination, and you have borne with it and given him ample opportunity to improve, which he has failed to do.
In view of the above, your case will be stronger.
Being a democratic setup, your action can be challenged in the court of law. But this time you have a strong case to defend and prove his chronic nature of insubordination and exhibit your good nature of having given him a chance to improve.
However, in cases where the employee's presence itself will prove to be a hindrance to the working of others and the organization, in that case, he may be placed under suspension pending inquiry, and the decision on the punishment aspect may be taken after the inquiry report is available to the disciplinary authority.
Regards,
Premson
From India, Mangaluru
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Termination is the ultimate weapon to be used by the employer - the 'Brahma Astra.'
For it, the employer has to build up the case over a period of time.
In this case of insubordination, the employer may give repeated advisory/warning memos, conduct inquiries after issuing charge sheets, and decide on the quantum of punishment thereafter.
Finally, when the termination order is issued, the world will be with you as he has a history of insubordination, and you have borne with it and given him ample opportunity to improve, which he has failed to do.
In view of the above, your case will be stronger.
Being a democratic setup, your action can be challenged in the court of law. But this time you have a strong case to defend and prove his chronic nature of insubordination and exhibit your good nature of having given him a chance to improve.
However, in cases where the employee's presence itself will prove to be a hindrance to the working of others and the organization, in that case, he may be placed under suspension pending inquiry, and the decision on the punishment aspect may be taken after the inquiry report is available to the disciplinary authority.
Regards,
Premson
From India, Mangaluru
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The PowerPoint presentation is self-explanatory and useful with drafts. However, the punishment should not be shockingly disproportionate to the misconduct. The courts can intervene in such cases. Principles of natural justice require to be followed during disciplinary proceedings. Termination is a capital punishment and should be given only in cases of extreme and serious misconduct after following due process of law.
Regards,
V.S. SARODE
9833989246
From India, Mumbai
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Regards,
V.S. SARODE
9833989246
From India, Mumbai
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Hello,
When an employee refuses to work, it is the duty of HR to bridge and balance the situation rather than opting for termination. There could be various reasons for his/her insubordination. Understand that the reason an employee leaves the organization is often because of the managers.
If it is just the attitude and ego playing a major role, then you should educate them on the serious consequences that could lead to termination. Issue warning letters and reprimands, and if there is no change, proceed with termination.
From India, Bangalore
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When an employee refuses to work, it is the duty of HR to bridge and balance the situation rather than opting for termination. There could be various reasons for his/her insubordination. Understand that the reason an employee leaves the organization is often because of the managers.
If it is just the attitude and ego playing a major role, then you should educate them on the serious consequences that could lead to termination. Issue warning letters and reprimands, and if there is no change, proceed with termination.
From India, Bangalore
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Hi Alphonse,
The PowerPoint presentation on DISCIPLINARY PROCEDURE is quite illuminating and an excellent piece for beginners and those in need of a refresher. I understand that the book on the subject by BR Ghaiye in two volumes can only satisfy those who still need more knowledge on the subject. Please keep posting many more PowerPoints.
Regards,
Yours sincerely,
Satish Kumar
Sr. Manager (HR)
NTPC Ltd., Noida
9810544388
From India, Delhi
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The PowerPoint presentation on DISCIPLINARY PROCEDURE is quite illuminating and an excellent piece for beginners and those in need of a refresher. I understand that the book on the subject by BR Ghaiye in two volumes can only satisfy those who still need more knowledge on the subject. Please keep posting many more PowerPoints.
Regards,
Yours sincerely,
Satish Kumar
Sr. Manager (HR)
NTPC Ltd., Noida
9810544388
From India, Delhi
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Sir,
Hello to all the members,
I require advice on the following issue:
An employee absconded from work a couple of months ago. He is a north Indian in the Sales Team. We later learned that he has been discontinued from service by his Head. Neither have we sent him any communication regarding his absconding nor has he given his resignation. He has now sent a legal notice through his advocate claiming salary from the date of his absconding to the present date. Can anybody suggest, help, or guide me on how to proceed further in this case?
B. Saravanan
98402 74797
Email: sarannbala@gmail.com
From India, Madras
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Hello to all the members,
I require advice on the following issue:
An employee absconded from work a couple of months ago. He is a north Indian in the Sales Team. We later learned that he has been discontinued from service by his Head. Neither have we sent him any communication regarding his absconding nor has he given his resignation. He has now sent a legal notice through his advocate claiming salary from the date of his absconding to the present date. Can anybody suggest, help, or guide me on how to proceed further in this case?
B. Saravanan
98402 74797
Email: sarannbala@gmail.com
From India, Madras
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Hi,
You will need to follow certain steps before initiating a termination. This is only to safeguard the company and to give an opportunity to the employee to justify his/her actions. All actions and evidence must be communicated to the employee along with consequences and the final action that can be initiated (termination in this case). If all evidence is against the incumbent, termination may be initiated. The termination letter must document all facts effectively.
Hope this helps.
Regards, Aparna
From India, Mumbai
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You will need to follow certain steps before initiating a termination. This is only to safeguard the company and to give an opportunity to the employee to justify his/her actions. All actions and evidence must be communicated to the employee along with consequences and the final action that can be initiated (termination in this case). If all evidence is against the incumbent, termination may be initiated. The termination letter must document all facts effectively.
Hope this helps.
Regards, Aparna
From India, Mumbai
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Dear Saravanan,
First of all, please look at the "standard format of Appointment Letter and the clauses therein". In general, every employer includes a clause stating that if an employee abstains or absconds from duties without any written communication to the employer for a week's time, their appointment will be terminated automatically.
If you find such a clause in the standard format, you can respond to the notice under that clause indicating that the appointment has been terminated, eliminating the need to notify the dismissal.
RP
From India, Bhopal
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First of all, please look at the "standard format of Appointment Letter and the clauses therein". In general, every employer includes a clause stating that if an employee abstains or absconds from duties without any written communication to the employer for a week's time, their appointment will be terminated automatically.
If you find such a clause in the standard format, you can respond to the notice under that clause indicating that the appointment has been terminated, eliminating the need to notify the dismissal.
RP
From India, Bhopal
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Have you documented the insubordination? Has the Manager/Supervisor handed in a written complaint? What does your SOP say? What constitutes insubordination - exactly? Is it disobeying a direct order or questioning a stupid one? Was the employee rude, abusive, or ignorant? Please check the statements and make your inquiries before taking the easy route of dismissal. Yes, if you terminate an employee based on hearsay insubordination, you are liable for unfair dismissal in a court of law. Furthermore, if the employee belongs to a union, you will have to answer to the tribunal.
PVQ
From United Arab Emirates, Dubai
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PVQ
From United Arab Emirates, Dubai
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Dear Gigi,
You cannot terminate an employee just like that. Try to find out the facts. Issue a show cause notice. Ask him/her why disciplinary action will not be initiated against him/her. Give him/her full liberty to defend himself/herself. If you are not satisfied, go for disciplinary action accordingly.
Pranab
pranabchak68@yahoo.com
From India, Mumbai
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You cannot terminate an employee just like that. Try to find out the facts. Issue a show cause notice. Ask him/her why disciplinary action will not be initiated against him/her. Give him/her full liberty to defend himself/herself. If you are not satisfied, go for disciplinary action accordingly.
Pranab
pranabchak68@yahoo.com
From India, Mumbai
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Dear Pramod,
Management should not terminate an employee on the basis of insubordination. You should analyze the root cause for the same. Try to understand his problem since it is a behavioral matter. We should provide him with some sort of training to motivate him towards work, analyze his workload and pressure. Even after putting efforts, if an employee is not cooperating, then we should be ready with groundwork, i.e., performance appraisal. There should be no increments if confirmed or probation extension if on probation. The employee should be reviewed every 3 months. If even after these efforts he doesn't change, on the basis of his insubordination, he should be issued a warning, a show cause, or a suspension letter leading to a domestic inquiry.
This inquiry should be fair from the management perspective or engage Mr. Leekha as the inquiry officer. He will guide on how this termination will take place.
Regards,
Krishnavat75
From India, New+Delhi
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Management should not terminate an employee on the basis of insubordination. You should analyze the root cause for the same. Try to understand his problem since it is a behavioral matter. We should provide him with some sort of training to motivate him towards work, analyze his workload and pressure. Even after putting efforts, if an employee is not cooperating, then we should be ready with groundwork, i.e., performance appraisal. There should be no increments if confirmed or probation extension if on probation. The employee should be reviewed every 3 months. If even after these efforts he doesn't change, on the basis of his insubordination, he should be issued a warning, a show cause, or a suspension letter leading to a domestic inquiry.
This inquiry should be fair from the management perspective or engage Mr. Leekha as the inquiry officer. He will guide on how this termination will take place.
Regards,
Krishnavat75
From India, New+Delhi
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Dear Promod,
Please do not terminate without giving a charge sheet to the concerned employee and holding a proper domestic enquiry. If you do not do this, then the termination will be bad in law.
Secondly, an act of insubordination may not justify termination. How serious and grave is it? Is it a solitary instance or a repeated one? Does it impact the entire organization? Did you warn him before? These will be some of the basic considerations while awarding punishment even if you choose to charge sheet him. Please remember that the intended punishment must match the severity of the misconduct.
Best of luck,
Mohan.
From India
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Please do not terminate without giving a charge sheet to the concerned employee and holding a proper domestic enquiry. If you do not do this, then the termination will be bad in law.
Secondly, an act of insubordination may not justify termination. How serious and grave is it? Is it a solitary instance or a repeated one? Does it impact the entire organization? Did you warn him before? These will be some of the basic considerations while awarding punishment even if you choose to charge sheet him. Please remember that the intended punishment must match the severity of the misconduct.
Best of luck,
Mohan.
From India
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dear mr mohan said the correct thing .you may put clause in appointment letter but you can not terminate sdomeone without proper enquiry. tks j s malik
From India, Delhi
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From India, Delhi
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Dear All,
Can we terminate an employee for insubordination without even giving him a show cause notice? What will be the consequence of such termination? Can he challenge such termination in the court of law?
Dear Pramod,
Termination is the last resort after you have explored all possibilities. If the need arises in the future, in a labor court, you have to prove that no other alternative was available to you but to terminate the services due to the employee's repeated failure to comply with the employment conditions to which he/she is subject. Even a show cause notice is the first step, followed by your not accepting the given reply/assurance, followed by a second/third similar instance, followed by information to the labor officer/Government labor commissioner, followed by termination - make the case airtight before you 'terminate' a man! Termination is similar to a divorce!
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Can we terminate an employee for insubordination without even giving him a show cause notice? What will be the consequence of such termination? Can he challenge such termination in the court of law?
Dear Pramod,
Termination is the last resort after you have explored all possibilities. If the need arises in the future, in a labor court, you have to prove that no other alternative was available to you but to terminate the services due to the employee's repeated failure to comply with the employment conditions to which he/she is subject. Even a show cause notice is the first step, followed by your not accepting the given reply/assurance, followed by a second/third similar instance, followed by information to the labor officer/Government labor commissioner, followed by termination - make the case airtight before you 'terminate' a man! Termination is similar to a divorce!
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Dear All,
Can we terminate an employee for insubordination without even giving him a show cause notice? What will be the consequence of such termination? Can he challenge such termination in the court of law?
We cannot terminate an employee without giving him/her sufficient opportunity to defend himself/herself. He can be given a show cause notice. If not satisfied, an impartial inquiry should be conducted, and further action can be taken based on the outcome. This process is detailed in the attached PPT. The PPT can be downloaded using the "Search" function at the top of the page.
Regards,
Ashok Malik
From India, New Delhi
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Can we terminate an employee for insubordination without even giving him a show cause notice? What will be the consequence of such termination? Can he challenge such termination in the court of law?
We cannot terminate an employee without giving him/her sufficient opportunity to defend himself/herself. He can be given a show cause notice. If not satisfied, an impartial inquiry should be conducted, and further action can be taken based on the outcome. This process is detailed in the attached PPT. The PPT can be downloaded using the "Search" function at the top of the page.
Regards,
Ashok Malik
From India, New Delhi
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Dear All,
Thank you for the attachment. However, what happens in case the company decides to wind up its operations? Is it fair to offer only one month's salary with a termination letter and no prior notice?
Pankaj Garg
From India, Delhi
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Thank you for the attachment. However, what happens in case the company decides to wind up its operations? Is it fair to offer only one month's salary with a termination letter and no prior notice?
Pankaj Garg
From India, Delhi
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A help required please.
One of our project sites is ending on 31st July. We have nearly 8 employees working on it, and their last contract was until 31st July 2009. I need to terminate their contracts due to the cessation of work. I am already past the 3-month notice period. Can I simply issue a termination letter since their contracts cannot be renewed at all?
It's urgent. Thank you in advance.
From India, Mumbai
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One of our project sites is ending on 31st July. We have nearly 8 employees working on it, and their last contract was until 31st July 2009. I need to terminate their contracts due to the cessation of work. I am already past the 3-month notice period. Can I simply issue a termination letter since their contracts cannot be renewed at all?
It's urgent. Thank you in advance.
From India, Mumbai
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Hi Promod,
Termination, in the manner as mentioned by you, will not be upheld by law. Termination without an inquiry can be resorted to in circumstances where it is not practically possible to hold an inquiry. This will have to be proved to the satisfaction of the court if the termination is later challenged.
The act of insubordination on the part of the employee will have to be proved. What was the specific act? Was that a solitary act or has it occurred before? Was the act so severe as to warrant the extreme punishment of termination, or would a lighter punishment suffice to maintain discipline? These are some of the considerations the court will examine if the termination is challenged. Therefore, please do not terminate in the manner you have described. It will likely be contested in a court of law.
Best,
Jai
From India
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Termination, in the manner as mentioned by you, will not be upheld by law. Termination without an inquiry can be resorted to in circumstances where it is not practically possible to hold an inquiry. This will have to be proved to the satisfaction of the court if the termination is later challenged.
The act of insubordination on the part of the employee will have to be proved. What was the specific act? Was that a solitary act or has it occurred before? Was the act so severe as to warrant the extreme punishment of termination, or would a lighter punishment suffice to maintain discipline? These are some of the considerations the court will examine if the termination is challenged. Therefore, please do not terminate in the manner you have described. It will likely be contested in a court of law.
Best,
Jai
From India
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I have recently joined a company as an Assistant Manager HR. It's only been 45 days, and now my company is terminating me without giving any notice. The reason for termination is that I approached my CEO regarding an issue related to the organization, which was suggested by the Executive Director of my company. I am not at fault. The management staff is manipulating things, and no one is providing me with a specific reason or answer. I feel cheated.
Please let me know what actions I can take against the company to protect my rights.
Please send valuable suggestions to my email at [Email Removed For Privacy Reasons].
Thank you.
From India, Delhi
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Please let me know what actions I can take against the company to protect my rights.
Please send valuable suggestions to my email at [Email Removed For Privacy Reasons].
Thank you.
From India, Delhi
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Employee Motivation.ppt