Dear all,
One of our employees has taken leave for more than 3 months due to illness, and now he is requesting an additional 2 months of leave. However, our management has instructed me to terminate the employee. Could you kindly explain the termination process in this case?
Thank you.
From India, Madras
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4One of our employees has taken leave for more than 3 months due to illness, and now he is requesting an additional 2 months of leave. However, our management has instructed me to terminate the employee. Could you kindly explain the termination process in this case?
Thank you.
From India, Madras
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If an employee is on authorized leave (approved leave), then their service cannot be terminated. To terminate their service, you should have documents to prove that the concerned employee is on unauthorized leave for 3 months.
Regards,
Kamal
From India, Pune
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Regards,
Kamal
From India, Pune
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True.
If an employee is on leave on medical grounds and has all the relevant documents to prove it, and has informed the immediate supervisor and HR, then he is following the right path. However, in the event that management needs to terminate him, they must first provide him with a notice to return within a stipulated time period, after which the next course of action will follow.
Thanks & Regards,
Nivedita
From India, Pune
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If an employee is on leave on medical grounds and has all the relevant documents to prove it, and has informed the immediate supervisor and HR, then he is following the right path. However, in the event that management needs to terminate him, they must first provide him with a notice to return within a stipulated time period, after which the next course of action will follow.
Thanks & Regards,
Nivedita
From India, Pune
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Get a legal opinion on this. You cannot terminate the employee if he has all the documents in place. You can ask him to go on loss of pay as the leaves he was entitled to would have already exhausted. Also, you can discuss with the employee and terminate him. But for that, his supervisor needs to ask him to come to the office and should not approve the leaves. Once he fails to report to the office, you can put him under unauthorized absence and terminate him on disciplinary grounds. But before terminating, see if you can get him to resign.
- Adarsh
From India, Gurgaon
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- Adarsh
From India, Gurgaon
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Dear All,
This is a different scenario altogether. First of all you cannot terminate any employee just for being ill as it is rightly said by Nivedita that the employee is on right path. Even if you will terminate him he will get the reinstatement from the Labour Court. So terminating him straight away is never an option that may only drag the Management into unnecessary litigation, which will lead to Legal Expenses and the Management would end up paying even more.
There is one provision in the Industrial Disputes Act which is given below.
section 2[(oo) “retrenchment” means the termination by the employer of the
service of a workman for any reason whatsoever, otherwise than as
a punishment inflicted by way of disciplinary action, but does not
include—
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment between the
employer and the workman concerned contains a stipulation in
that behalf; or
2[(bb) termination of the service of the workman as a result of the nonrenewal
of the contract of employment between the employer
and the workman concerned on its expiry or of such contract
being terminated under a stipulation in that behalf contained
therein; or]
(c) termination of the service of a workman on the ground of
continued ill-health;]
There is the provision but to invoke this you have to first apply before High Court to get the permission to terminate the employee. Which will refer the employee to a Medical Board, which will examine him and give its report to the Court. if in that report it comes that he is so sick that he is not able to recover in the near future and will not be able to perform his duties normally only then you will get the permission from Court to terminate the employee. In the given case it is only Three months since he is sick. please see whether he is in a position to recover or not. Do not terminate him if he may recover from his illness after two months. Ask him to deposit his Medical Documents and seek medical advice if necessary before choosing any option.
The best option available with the Management is that put him on without pay leave and let him resume services on recovery. Ask him to submit the copies of his Medical Records and Certificate of fitness from the Doctor. you may also ask to provide the medical certificate from doctor during the Period of illness.
Terminating such an ailing Employee is not correct Morally an Legally. We should not support this kind of Labour Practices.
Hope this will answer your Query. for any further query feel free to revert or call me.
From India, New Delhi
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This is a different scenario altogether. First of all you cannot terminate any employee just for being ill as it is rightly said by Nivedita that the employee is on right path. Even if you will terminate him he will get the reinstatement from the Labour Court. So terminating him straight away is never an option that may only drag the Management into unnecessary litigation, which will lead to Legal Expenses and the Management would end up paying even more.
There is one provision in the Industrial Disputes Act which is given below.
section 2[(oo) “retrenchment” means the termination by the employer of the
service of a workman for any reason whatsoever, otherwise than as
a punishment inflicted by way of disciplinary action, but does not
include—
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment between the
employer and the workman concerned contains a stipulation in
that behalf; or
2[(bb) termination of the service of the workman as a result of the nonrenewal
of the contract of employment between the employer
and the workman concerned on its expiry or of such contract
being terminated under a stipulation in that behalf contained
therein; or]
(c) termination of the service of a workman on the ground of
continued ill-health;]
There is the provision but to invoke this you have to first apply before High Court to get the permission to terminate the employee. Which will refer the employee to a Medical Board, which will examine him and give its report to the Court. if in that report it comes that he is so sick that he is not able to recover in the near future and will not be able to perform his duties normally only then you will get the permission from Court to terminate the employee. In the given case it is only Three months since he is sick. please see whether he is in a position to recover or not. Do not terminate him if he may recover from his illness after two months. Ask him to deposit his Medical Documents and seek medical advice if necessary before choosing any option.
The best option available with the Management is that put him on without pay leave and let him resume services on recovery. Ask him to submit the copies of his Medical Records and Certificate of fitness from the Doctor. you may also ask to provide the medical certificate from doctor during the Period of illness.
Terminating such an ailing Employee is not correct Morally an Legally. We should not support this kind of Labour Practices.
Hope this will answer your Query. for any further query feel free to revert or call me.
From India, New Delhi
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Hi Hema,
I'm sure that you would be in the HR department, so it is your duty to inform the management that what they are doing is not correct. Terminating an employee when they are sick or ill is illegal. Mr. Kamal Kant Tyagi has provided all the necessary information and references to relevant Acts for your better understanding. You can use this information to approach your management and advise them against such actions.
Make sure that in this case, you stand by the employee. All the best.
From India, Delhi
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I'm sure that you would be in the HR department, so it is your duty to inform the management that what they are doing is not correct. Terminating an employee when they are sick or ill is illegal. Mr. Kamal Kant Tyagi has provided all the necessary information and references to relevant Acts for your better understanding. You can use this information to approach your management and advise them against such actions.
Make sure that in this case, you stand by the employee. All the best.
From India, Delhi
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how many employees are in your company? Is it Proprietorship company? Is there any HR policy in place? Pon
From India, Lucknow
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From India, Lucknow
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Thank you very much to you all for the immediate reply. I checked with my management, and he has already taken leave without pay for the past 3 months. He requested leave for another two months. However, the management did not accept the leave and informed him to either return to the job or resign. The employee did not accept either option.
Please let me know if you need any further assistance.
From India, Madras
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Please let me know if you need any further assistance.
From India, Madras
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Hi,
Kindly do not let employees fall prey to management practices. Make your bosses understand the fact that the options they are providing the concerned employees suit them and not the employees.
He is not in a position to come to the office, and he cannot be forcefully asked to resign either. Management will have to follow the steps mentioned by Kamal Kant Ji.
Thanks & Regards,
Nivedita
From India, Pune
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Kindly do not let employees fall prey to management practices. Make your bosses understand the fact that the options they are providing the concerned employees suit them and not the employees.
He is not in a position to come to the office, and he cannot be forcefully asked to resign either. Management will have to follow the steps mentioned by Kamal Kant Ji.
Thanks & Regards,
Nivedita
From India, Pune
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Dear Hemavathy,
I don't think an employee can be terminated solely because of ill health. Moreover, an employer cannot approach the court straight away for the termination of an employee. If you feel the employee is medically unfit to work, then you can ask them to appear before a medical board for a complete examination. If the employee is covered under ESIC, such an opinion can be easily obtained from the board. Based on the board's recommendation, you can initiate action against the employee.
Furthermore, check your standing order to see if the termination of an employee based on ill health is specified or not. If it is specified, then you can take appropriate action based on the certified standing order.
V.SRI
From India, Madras
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I don't think an employee can be terminated solely because of ill health. Moreover, an employer cannot approach the court straight away for the termination of an employee. If you feel the employee is medically unfit to work, then you can ask them to appear before a medical board for a complete examination. If the employee is covered under ESIC, such an opinion can be easily obtained from the board. Based on the board's recommendation, you can initiate action against the employee.
Furthermore, check your standing order to see if the termination of an employee based on ill health is specified or not. If it is specified, then you can take appropriate action based on the certified standing order.
V.SRI
From India, Madras
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But to understand the problems of Hemavati, she needs to provide workable solutions to her employer. In a competitive business, the absence of such longevity is not acceptable as it hampers services and production.
Therefore, the best practice would be to ask the employee to appear before the company's doctor or a doctor arranged by the company if the company does not have a panel of doctors and get them examined. Ensure that you have a document regarding the employee making false claims and enjoying leave. Issue a charge sheet based on false claims of sickness, hold an inquiry, ensure that the doctor who examined the employee remains present to testify in the inquiry, record the inquiry proceedings and findings. Follow the process required in domestic inquiries and impose the punishment of termination or dismissal. Remember to highlight the absence of the employee on false grounds and the production of fake documents related to employment.
The above procedure is required if the employee is a workman. Otherwise, simply give a notice of 1/2 months or salary in lieu of notice, based on the terms of employment, and issue a termination simplicitor. If you are in the public sector or government, then you need to strictly follow the service codified rules of the company.
Good Luck,
Ashok Naik
From India, Mumbai
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Therefore, the best practice would be to ask the employee to appear before the company's doctor or a doctor arranged by the company if the company does not have a panel of doctors and get them examined. Ensure that you have a document regarding the employee making false claims and enjoying leave. Issue a charge sheet based on false claims of sickness, hold an inquiry, ensure that the doctor who examined the employee remains present to testify in the inquiry, record the inquiry proceedings and findings. Follow the process required in domestic inquiries and impose the punishment of termination or dismissal. Remember to highlight the absence of the employee on false grounds and the production of fake documents related to employment.
The above procedure is required if the employee is a workman. Otherwise, simply give a notice of 1/2 months or salary in lieu of notice, based on the terms of employment, and issue a termination simplicitor. If you are in the public sector or government, then you need to strictly follow the service codified rules of the company.
Good Luck,
Ashok Naik
From India, Mumbai
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It is very nearly impossible to terminate the service of employees unless there is solid and concrete proof of non-performance or bad behavior. A court case can take 13 years or more to settle, and by the time your witness against the employee disappears or becomes weak, they get reinstated with back wages.
That is why China is doing better with a flexible labor policy where there is an option for the employer to remove someone for whatever reason. The same applies to Brazil, Mexico, and other countries similar to us but with an exit policy. There, they have rules to remove workers with a compensation policy.
Here, an employer can hire 200 persons but can't sack a single person without rock-solid proof against that individual, and legal cases get settled after 13-15 years. I have seen many cases where an employee takes leave but works in another establishment to earn extra money, yet nothing can be done without solid proof.
From India, Surat
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That is why China is doing better with a flexible labor policy where there is an option for the employer to remove someone for whatever reason. The same applies to Brazil, Mexico, and other countries similar to us but with an exit policy. There, they have rules to remove workers with a compensation policy.
Here, an employer can hire 200 persons but can't sack a single person without rock-solid proof against that individual, and legal cases get settled after 13-15 years. I have seen many cases where an employee takes leave but works in another establishment to earn extra money, yet nothing can be done without solid proof.
From India, Surat
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If he has taken medical grounds falsely or intentionally to gain an advantage, you can follow the procedure below:
- Reject his leave request.
- Ask him to produce medical documents of treatment/certificate.
- Instruct him to appear before a medical board suggested by you.
Once the actual facts come to light, take appropriate action accordingly.
From India, Jamnagar
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- Reject his leave request.
- Ask him to produce medical documents of treatment/certificate.
- Instruct him to appear before a medical board suggested by you.
Once the actual facts come to light, take appropriate action accordingly.
From India, Jamnagar
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I fully accept what Kamal Kant has suggested. Let us speak in favor of the employee rather than the employer. Moreover, the employee has not committed anything intentionally. I stand by the employee - Principles of Natural Justice.
From India, Madras
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From India, Madras
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I have another question where in SHOPS & ESTABLISHMENT ACT- TAMILNADU refers to providing 4 complusary leaves on 26/01,01/5,15/8 & 02/10. is it manadatary.
From India, Madras
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From India, Madras
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Guys,
The question asked by a friend was not different. Nowadays, most of the companies' Managing Directors sing the same tune when it comes to sacking employees for irregular attendance. In HR, such methods cannot be employed on an employee without a relevant reason. Here, the HR's duty is to make the management understand and to discuss the employee's conduct record, rules, methods, and ways of treating employees. This doesn't mean that HR is against what the management prefers. HR has to handle situations appropriately.
Praveen
HR Manager
9731109087
From India, Bangalore
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The question asked by a friend was not different. Nowadays, most of the companies' Managing Directors sing the same tune when it comes to sacking employees for irregular attendance. In HR, such methods cannot be employed on an employee without a relevant reason. Here, the HR's duty is to make the management understand and to discuss the employee's conduct record, rules, methods, and ways of treating employees. This doesn't mean that HR is against what the management prefers. HR has to handle situations appropriately.
Praveen
HR Manager
9731109087
From India, Bangalore
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Never break a law! Sometimes, you might just be unlucky to be in a bad spot. If the law forbids you from doing something, inform the management to hold on. Meanwhile, start looking for a replacement. You may need one, regardless of how your operations are.
From United States, Daphne
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From United States, Daphne
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dear hema . its a unethical practice in a company...& u should not join this type of practices unless u have to tell the management to think over their decision again...
From India, Shimla
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From India, Shimla
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My dear friend,
Who is going long live reason illness to refer, take that person under ESI coverage. Is there any suggestion to take medical leave? ESI pay is 60% of the salary. That document's proof is required to terminate that employee. First, check if the employee is under ESI coverage or not. Please provide the above solution to the employee and your management. Additionally, your management needs to terminate some employees. I suggest addressing some employee complaints to the ESI labor office. The labor department would better handle this matter.
Thanks & Regards,
G. Pavankumar
From India, Hyderabad
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Who is going long live reason illness to refer, take that person under ESI coverage. Is there any suggestion to take medical leave? ESI pay is 60% of the salary. That document's proof is required to terminate that employee. First, check if the employee is under ESI coverage or not. Please provide the above solution to the employee and your management. Additionally, your management needs to terminate some employees. I suggest addressing some employee complaints to the ESI labor office. The labor department would better handle this matter.
Thanks & Regards,
G. Pavankumar
From India, Hyderabad
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Adopt the procedure of exiting employees who give false medical certificates. regards, Ashok Naik
From India, Mumbai
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From India, Mumbai
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Ms. Hema,
You can't get any better thoughts than those provided by Mr. Kamal, Ambattur, and Shah. They bring perfection to the table. Of course, we will also consider input from others.
In this scenario, if you can't retain him, you must write to him to express appreciation for his invaluable contributions to the company. Ensure he understands the current situation within the organization and the issues surrounding him.
Inform him that both the HR department and management will review his application should he reapply to the company in the future, once he is ready.
If all these strategies fail to address the issue, you can request a fitness certificate for him to continue his service with the organization. If he complies:
1. He might be lying.
2. The certificate could be false.
If he fails to provide the certificate promptly, send him a retrenchment letter along with three months' salary upon his acceptance. If he refuses to comply, seek guidance from the legal counsel of the company and the labor inspector.
Ravi S. S.
Email: sravi_shankar@rediffmail.com
From India, Madras
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You can't get any better thoughts than those provided by Mr. Kamal, Ambattur, and Shah. They bring perfection to the table. Of course, we will also consider input from others.
In this scenario, if you can't retain him, you must write to him to express appreciation for his invaluable contributions to the company. Ensure he understands the current situation within the organization and the issues surrounding him.
Inform him that both the HR department and management will review his application should he reapply to the company in the future, once he is ready.
If all these strategies fail to address the issue, you can request a fitness certificate for him to continue his service with the organization. If he complies:
1. He might be lying.
2. The certificate could be false.
If he fails to provide the certificate promptly, send him a retrenchment letter along with three months' salary upon his acceptance. If he refuses to comply, seek guidance from the legal counsel of the company and the labor inspector.
Ravi S. S.
Email: sravi_shankar@rediffmail.com
From India, Madras
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Hello,
You can terminate the employee only if he will not be able to perform in the future or is medically unfit to do his duties. You should have proof for the same. If there is, you can terminate the employee legally.
Ajay Padnekar
+91 9618626888
From India, Bangalore
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You can terminate the employee only if he will not be able to perform in the future or is medically unfit to do his duties. You should have proof for the same. If there is, you can terminate the employee legally.
Ajay Padnekar
+91 9618626888
From India, Bangalore
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Dear Respective,
The replies made by Nivedita, Adarsh, Kamal Kant, Archna, and V. Sri are appropriate and informative. Thanks a lot for the insights. In the context of illness, the employer cannot terminate an employee. There are special provisions under the Factory Act, Industrial Dispute Act, and Maternity Benefit Act that prevent the employer from terminating an employee due to illness. It may be possible to stop payment for the period the employee did not work. If the employee has complete documentation proving illness or sickness, such as advice from a doctor for bed rest, the employer cannot terminate them. If termination occurs, legal action can be taken.
For critical illnesses, an employee is entitled to leave without prior notice, but within 10 days, the company must be informed by the employee's family of the situation causing the employee's absence. If an employee is on continuous leave for more than two months without informing the company, the employer will send a show-cause notice to the employee's address, requesting a reply explaining the cause of absence within 10 days of the notice being issued. If the employee's response is satisfactory and supported by documentation of the absence, the employer cannot terminate the employee due to illness.
Thanks and Best Regards,
From India, Hyderabad
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The replies made by Nivedita, Adarsh, Kamal Kant, Archna, and V. Sri are appropriate and informative. Thanks a lot for the insights. In the context of illness, the employer cannot terminate an employee. There are special provisions under the Factory Act, Industrial Dispute Act, and Maternity Benefit Act that prevent the employer from terminating an employee due to illness. It may be possible to stop payment for the period the employee did not work. If the employee has complete documentation proving illness or sickness, such as advice from a doctor for bed rest, the employer cannot terminate them. If termination occurs, legal action can be taken.
For critical illnesses, an employee is entitled to leave without prior notice, but within 10 days, the company must be informed by the employee's family of the situation causing the employee's absence. If an employee is on continuous leave for more than two months without informing the company, the employer will send a show-cause notice to the employee's address, requesting a reply explaining the cause of absence within 10 days of the notice being issued. If the employee's response is satisfactory and supported by documentation of the absence, the employer cannot terminate the employee due to illness.
Thanks and Best Regards,
From India, Hyderabad
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in spite of helping the employeee, management what to terminate him. is it justified. if there is need of person they can keep the another person for the time being. Hari chand
From India
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From India
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Terminating an employee for his illness cannot be warranted. You can ask him to come to the office to provide necessary papers in support of his claim of sickness. You can also examine him by your company's medical practitioner or a qualified doctor. Upon seeing the report, only then can you propose anything. If your management is adamant in terminating him and you also follow their advice, then be prepared to face legal consequences.
Balaji
From India, Madras
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Balaji
From India, Madras
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Dear Hema,
Often, it has been found that an employee proceeds on leave using his sickness as a tool to substantiate his illness. It may be genuine sometimes, and on the other hand, it may be for any other reasons, such as alcoholism, etc.
Now, being in HR, we have to tackle the said problems as continuous absenteeism leads to an overall adverse effect in the relevant department.
Initially, try to find out from other employees and verify his past records. If he is a chronic absentee, then send him a letter asking for his medical records. Kindly ensure that he produces the record from the Registered Medical Practitioner, i.e., an MBBS doctor or an MD doctor. The history will itself depict the true story of his illness. Even if there remains a doubt about his certificate, then refer him to a medical board and get him examined.
If the medical board certifies him to be fit, then first register a complaint against the doctor issuing the medical certificate with the Medical Bar Council. Ask the employee to join immediately, clearly stating that his leave is not sanctioned, and he has to report for duty immediately.
If he does not report for duty, then issue a charge sheet and hold a domestic inquiry and then terminate him.
This advice pertains to an employee who is guided by the terms and conditions of employment and standing orders, i.e., a unionized employee.
For an employee who is in the executive cadre and who is guided by the terms and conditions of employment, issue him a termination letter in terms of the clause of the employment offer with one month's notice pay.
Hope the above will satisfy your query.
Jaikishen Kumtekar
9967542262
From India, Mumbai
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Often, it has been found that an employee proceeds on leave using his sickness as a tool to substantiate his illness. It may be genuine sometimes, and on the other hand, it may be for any other reasons, such as alcoholism, etc.
Now, being in HR, we have to tackle the said problems as continuous absenteeism leads to an overall adverse effect in the relevant department.
Initially, try to find out from other employees and verify his past records. If he is a chronic absentee, then send him a letter asking for his medical records. Kindly ensure that he produces the record from the Registered Medical Practitioner, i.e., an MBBS doctor or an MD doctor. The history will itself depict the true story of his illness. Even if there remains a doubt about his certificate, then refer him to a medical board and get him examined.
If the medical board certifies him to be fit, then first register a complaint against the doctor issuing the medical certificate with the Medical Bar Council. Ask the employee to join immediately, clearly stating that his leave is not sanctioned, and he has to report for duty immediately.
If he does not report for duty, then issue a charge sheet and hold a domestic inquiry and then terminate him.
This advice pertains to an employee who is guided by the terms and conditions of employment and standing orders, i.e., a unionized employee.
For an employee who is in the executive cadre and who is guided by the terms and conditions of employment, issue him a termination letter in terms of the clause of the employment offer with one month's notice pay.
Hope the above will satisfy your query.
Jaikishen Kumtekar
9967542262
From India, Mumbai
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Dear Hem,
As V. Sri said, you have to examine your leave rules along with the Standing Orders to determine whether such leave is permissible as per your service conditions. Additionally, as an extra precaution, ascertain through some sources whether his illness is genuine or not. If the information collected differs, you may issue a notice to report for duty within a reasonable time. If not, ask him to appear before a duly constituted medical board. Then consider the next course of action. Before initiating a termination decision/process, you must carefully exhaust all reasonable avenues to justify the termination process. In other words, plug all legal loopholes that are likely to go against your termination action. Explain how his absence in the organization has seriously affected your operations and why you are compelled to initiate termination and seek a replacement to fill the void created by him. However, also examine the situation from the perspective of compensation that is likely to arise.
Kumar
Bg.
From India, Bangalore
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As V. Sri said, you have to examine your leave rules along with the Standing Orders to determine whether such leave is permissible as per your service conditions. Additionally, as an extra precaution, ascertain through some sources whether his illness is genuine or not. If the information collected differs, you may issue a notice to report for duty within a reasonable time. If not, ask him to appear before a duly constituted medical board. Then consider the next course of action. Before initiating a termination decision/process, you must carefully exhaust all reasonable avenues to justify the termination process. In other words, plug all legal loopholes that are likely to go against your termination action. Explain how his absence in the organization has seriously affected your operations and why you are compelled to initiate termination and seek a replacement to fill the void created by him. However, also examine the situation from the perspective of compensation that is likely to arise.
Kumar
Bg.
From India, Bangalore
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In case an employee is deliberately giving a false medical certificate, an employer can convene their own medical board and declare the employee unfit to perform their duties. The employer must provide valid grounds for this decision, based on the recommendations of the attending doctors, the nature of the illness, etc.
If the employer can prove in a court of law that the employee is physically unfit to perform their duties in the near future and that the company would suffer financial losses as a result, the employee's challenge against their termination in court can be dismissed.
From India, Calcutta
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If the employer can prove in a court of law that the employee is physically unfit to perform their duties in the near future and that the company would suffer financial losses as a result, the employee's challenge against their termination in court can be dismissed.
From India, Calcutta
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Employment termination justified in case of long leave.pdf
Why did this talented employee leave.doc