In my company, one employee joined on 15th January, and she applied for maternity leave on 25th August. However, her performance in August was not up to the mark. Consequently, the management decided to terminate her when she applied for maternity leave. Is the management's action justified? If not, what should the management do in this situation?
From India, Hyderabad
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From India, Hyderabad
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Termination during maternity leave will be against the law presently laid down. Employees cannot be discharged or dismissed during maternity leave period; neither can there be any disadvantageous change to conditions of employment. Exceptions - This can be overruled in cases of gross misconduct or if employees take up work for another establishment during their leave. It is important to note, however, that pregnant employees who are discharged or dismissed can still claim maternity benefit from the employer. The case quoted here does not appear to be gross misconduct.
From India, Pune
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3180From India, Pune
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then what the management can do if employee is poor performer and employee apply maternity leave also
From India, Hyderabad
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From India, Hyderabad
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what is the manager has to justify the employee and what should not do management for that employee
From India, Hyderabad
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From India, Hyderabad
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what is the manager has to justify the employee and what should not do management for that employee?
From India, Hyderabad
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From India, Hyderabad
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Employee has been working since January, and in August, her performance was not up to par. The employee can be put on a Performance Improvement Plan (PIP), issued warnings, etc. However, when she is pregnant and has applied for maternity leave, she cannot be dismissed.
From India, Pune
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From India, Pune
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Let us get the following legal aspects very clear:
1. Dismissal or discharge of a pregnant woman employee is prohibited only during maternity leave as per the Act (i.e., after the employee serves notice of maternity leave) and such dismissal or discharge is on account of her absence from work.
2. In the event of discharge or dismissal for gross misconduct at any time during her pregnancy, a pregnant woman would be entitled to maternity benefits.
3. As it is not very clear whether the pregnant woman employee was discharged for poor performance during maternity leave or prior to that, she is entitled to full maternity benefit. However, if she is discharged during maternity leave, that would be ipso facto unlawful as per Section 12 of the MB Act. The same is reproduced below:
12. Dismissal during absence of pregnancy.-
(1) When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.
(2) (a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus:
Provided that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both.
(b) Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within sixty days from the date on which the order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissed shall be final.
From India, Mumbai
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1. Dismissal or discharge of a pregnant woman employee is prohibited only during maternity leave as per the Act (i.e., after the employee serves notice of maternity leave) and such dismissal or discharge is on account of her absence from work.
2. In the event of discharge or dismissal for gross misconduct at any time during her pregnancy, a pregnant woman would be entitled to maternity benefits.
3. As it is not very clear whether the pregnant woman employee was discharged for poor performance during maternity leave or prior to that, she is entitled to full maternity benefit. However, if she is discharged during maternity leave, that would be ipso facto unlawful as per Section 12 of the MB Act. The same is reproduced below:
12. Dismissal during absence of pregnancy.-
(1) When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.
(2) (a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus:
Provided that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both.
(b) Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within sixty days from the date on which the order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissed shall be final.
From India, Mumbai
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Dear colleague,
I would like to give my views on the following assumptions:
1. The concerned lady employee, after completing 7 months of service, has duly applied for Maternity Leave as per the MB Act, and the management has approved the same.
2. She has not yet proceeded on ML.
3. She is on probation (though it is not mentioned).
4. Her performance was not satisfactory, and she has been informed about it well before.
5. As stated by learned colleagues, it will be illegal to terminate her services while she is on ML, and the action of termination on the basis of unsatisfactory performance has to be deferred until she resumes her duties after her ML of 26 weeks. At this stage, the action of termination, if taken, would be held malafide to deprive her of Maternity benefits, though reasons may be genuine.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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I would like to give my views on the following assumptions:
1. The concerned lady employee, after completing 7 months of service, has duly applied for Maternity Leave as per the MB Act, and the management has approved the same.
2. She has not yet proceeded on ML.
3. She is on probation (though it is not mentioned).
4. Her performance was not satisfactory, and she has been informed about it well before.
5. As stated by learned colleagues, it will be illegal to terminate her services while she is on ML, and the action of termination on the basis of unsatisfactory performance has to be deferred until she resumes her duties after her ML of 26 weeks. At this stage, the action of termination, if taken, would be held malafide to deprive her of Maternity benefits, though reasons may be genuine.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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Legal Clarification on Maternity Leave.pdf