Hi,
I know that this question has come-up time and again, but I was not really sure what the case be in our scenario.
We are a Gujarat Based Software Development Firm with 35 employees.
Recently we found out that one of our senior employees had been tampering with our source code and deliberately delaying the project. Also, we found that more than 50% of the work that he had done was either faulty or incomplete.
Now, we did not have any proper HR policies until recently, and hence he was given only verbal instructions. The management now wants to terminate the employee with immediate effect after he has missed 3 project deadlines. He is currently on suspension from April 10, 2013.
My Question is:
1. Can we terminate him without initial written Warnings?
2. Is the company liable to him this month's salary? If yes, till 10th or for the whole month?
3. Can we terminate him without giving a notice period?
4. What would be the FNF if he decides to resign?
If you feel that these are answered in some other discussion, please share the link.
Thanks.
From India, Mumbai
I know that this question has come-up time and again, but I was not really sure what the case be in our scenario.
We are a Gujarat Based Software Development Firm with 35 employees.
Recently we found out that one of our senior employees had been tampering with our source code and deliberately delaying the project. Also, we found that more than 50% of the work that he had done was either faulty or incomplete.
Now, we did not have any proper HR policies until recently, and hence he was given only verbal instructions. The management now wants to terminate the employee with immediate effect after he has missed 3 project deadlines. He is currently on suspension from April 10, 2013.
My Question is:
1. Can we terminate him without initial written Warnings?
2. Is the company liable to him this month's salary? If yes, till 10th or for the whole month?
3. Can we terminate him without giving a notice period?
4. What would be the FNF if he decides to resign?
If you feel that these are answered in some other discussion, please share the link.
Thanks.
From India, Mumbai
First of all, you can not terminate the service of an employee without offering him an opportunity to defend the charges leveled against him and without following the basic principles of natural justice. Here, if the employee has been working as a managerial person ( simply by designation as Sr. Engineer one person need not become a manager unless he has functional responsibilities of a managerial person), certainly, you can take a call and ask him to leave or even terminate his service if his performance is found to be unsatisfactory. Whereas if he has not been given any supervisory role of authority over his subordinate employees either by way of granting of leave to his subordinates, initiating disciplinary action against his subordinates or appraising the performance of his subordinates, naturally, he will come under the definition of workman under the Industrial Disputes Act and if so, before initiating an action like termination of service you have to take the following steps:
1. Issue a show cause notice or charge sheet elaborating the misconducts, negligence or other leveled against him and ask him to show cause why action should not be taken against him.
2. Give him reasonable time to reply to the charge sheet/ show cause memo
3. If the reply submitted by him is not satisfactory , that is if he submits that he was regular and has not done any thing against the company policy, then grant him an opportunity to prove it before an officer, preferably an independent/ outsider.
Conduct a domestic enquiry and allow him to produce evidences in support of him
4. Based on the enquiry and the report of the enquiry officer decide whether he should be terminated or not.
In your case, you have already suspended him from service and it should be deemed as suspension pending enquiry. Therefore, now you have to prepare charge sheet which should be a complete description of the charges against him, what all wrong things, mistakes, negligence he has done, what all costs the company had to incur to repair it etc etc. and ask him to give a reply to it. If the reply is not satisfactory, proceed with an enquiry and decide.
Without following the above steps if you are terminating his services, he will return to your same office after getting an order of reinstation from the court.
Termination after following the above need not necessarily be dismissal but only discharge would suffice. In such cases he should be paid all terminal benefits, salary till the date of suspension, gratuity if applicable, leave encashment etc. No notice pay need to be given in such cases.
In case he decides to resign, relieve him with salary till the date he worked or even settle with one month pay because it is your wish that he should be sent out and at the same time you are relieved of all the procedures of terminating him. So take it in your favour and be proactive to accept it.
Note that during the period of suspension he is eligible to get subsistence allowance which will be equal to 50% of salary for the first 90 days of suspension.
Madhu.T.K
From India, Kannur
41931. Issue a show cause notice or charge sheet elaborating the misconducts, negligence or other leveled against him and ask him to show cause why action should not be taken against him.
2. Give him reasonable time to reply to the charge sheet/ show cause memo
3. If the reply submitted by him is not satisfactory , that is if he submits that he was regular and has not done any thing against the company policy, then grant him an opportunity to prove it before an officer, preferably an independent/ outsider.
Conduct a domestic enquiry and allow him to produce evidences in support of him
4. Based on the enquiry and the report of the enquiry officer decide whether he should be terminated or not.
In your case, you have already suspended him from service and it should be deemed as suspension pending enquiry. Therefore, now you have to prepare charge sheet which should be a complete description of the charges against him, what all wrong things, mistakes, negligence he has done, what all costs the company had to incur to repair it etc etc. and ask him to give a reply to it. If the reply is not satisfactory, proceed with an enquiry and decide.
Without following the above steps if you are terminating his services, he will return to your same office after getting an order of reinstation from the court.
Termination after following the above need not necessarily be dismissal but only discharge would suffice. In such cases he should be paid all terminal benefits, salary till the date of suspension, gratuity if applicable, leave encashment etc. No notice pay need to be given in such cases.
In case he decides to resign, relieve him with salary till the date he worked or even settle with one month pay because it is your wish that he should be sent out and at the same time you are relieved of all the procedures of terminating him. So take it in your favour and be proactive to accept it.
Note that during the period of suspension he is eligible to get subsistence allowance which will be equal to 50% of salary for the first 90 days of suspension.
Madhu.T.K
From India, Kannur
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