Disciplinary Action / Termination Of Employee

Good Evening..
We have employees working on Field / Part-time / Piece rated
Pls guide the process of Disciplinary action to be taken on employees who are not regular and absconding to duties.
Employees are approaching labor court after terminating them.
How can we terminate the employees who are not regular, so that if the employee approaches the labor court what are the documents to be provided to resolve the issue.
Thanks in advance..
Regards,
K.SAIKISHORE

Dear Saikishore
Please tell us, so far how you have been Terminating employees; what is the procedure adopted.
Part-time and piece-rated - it is well known that they have a high rate of absenteeism.
How are they treated? Have you regularized their services ??
It would be appropriate to suggest, after more information is available.
Warm regards.

Dear Raj Kumar,

All the employees are working on rolls, issued appointment letters and designated as "Piece rated employee". they do billing services for door to door in assigned location.

Case 1 : As and when we receive complaints from consumers for wrong billing we hand over the billing machine and terminate.

Case 2 : Employees used to be continues in absence and absconding for few weeks. we treat it has employee left.

After few months in above both cases employees used to approach Labor court saying that they are terminated with out notice and not paid wages since they got absconded.

Our Appointment letter clause for your reference :

CLOSURE / TERMINATION OF CONTRACT

This offer of appointment is in view of the contract between A Ltd.and B LTD. For any reason, the contract between A Ltd.and B LTD gets terminated; your employment will automatically come to an end.

Your services will be terminated without any notice or compensation in lieu of notice, in the event you fail to complete the billing entrusted to you for two consecutive months or fail to achieve the targets from time to time over a period of time or it is found that you have altered / modified / erased / misused the data in the billing process activity.

Your services will automatically get terminated on completion of the term mentioned herein above.

You will be covered by the Rules and Regulations including conduct, discipline and administrative orders and any such other rules or order of the company that may come into force from time to time.

Your services will be terminated without any notice or payment in lieu of notice for your act/s of misconduct or loss of confidence, inefficiencies, disloyalty, commission & omission of your act which may adversely affect the reputation and business of the company or commission of any act involving moral turpitude.

If for any reason you become incapable of performing the duties assigned to you or in the event of giving false particulars in your application and deliberately not disclosing any information, then in such case your employment will be dispensed off without any notice and compensation thereof.

In the event of termination or resignation you shall hand over all the documents and papers, keys and other property of the Company as may be in your custody, care or charge to your immediate superior and obtain a clearance certificate from him.

Is the above clauses are suitable to terminate without notice? Employees have filed suit under ID Act Sec 25-F , 25-G, 25-H.

Pls guide.

Regards,

K.SAIKISHORE

This is a case of fixed term contract (FTC) employment for a certain work only. A FTC can be terminated on completion of the work for which the employee is engaged or a fixed period, say one year, two years, which is prefixed at the time of starting the contract itself. In your case since there is no fixed period mentioned but he was hired for a particular job and is expected to be terminated without notice on completion of the job for which he was hired. But at the same time when we say that your service will stand terminated when the contract between the company and an outsider/ vendor comes to an end, there is an uncertainty with regard to service. That will not be permitted by the court. Failure to achieve targets is also improper and will not stand before any court.

Secondly, even if the court accepts that termination clause , the termination should have been on the ground of termination of contract with company B and should not be on the ground of any misconduct or habitual absenteeism. If the employee on fixed term contract has been non performing or is a habitual absentee then you should have given him adequate opportunities to improve and or conducted a domestic enquiry before terminating his service. Failure to follow the procedures is non excusable even if your contract of employment with the employee provides that 'without notice' one can be fired. This includes any misconduct, moral turpitude misappropriation of cash or anything which a reasonable person should not do. Therefore, your act of terminating the employee without offering him an opportunity to be heard seems to be illegal and against the law.

Section 25 F says that one month notice is required to be served on the employee to be terminated or retrenched. Since you have not served notice or paid one month pay in lieu of notice and paid retrenchment compensation at the rate of 15 days pay for every completed year of service, the termination is illegal. Section 25 G says that it should be the last employed person in the same category who should be retrenched first and section 25G says that the retrenched employee shall be given first priority when a vacancy arises.

Now one more thing. If the employee has been on probation you could have terminated the service WITHOUT showing or assigning any reason for termination. Since you have already showed the reason for termination as absenteeism you can not defend by saying that termination was during probation period. Moreover, there is no such probation clause in the appointment order also.

Any way the matter will take another three or five years to settle. If they had send the matter for conciliation at least a settlement could be done by paying compensation as per ID Act.

Piece rate is only a wage arrangement and it has nothing to with dispute.

Madhu.T.K

Dear saikishore
It looks like you need to modify your terms of employment.
The exiting one talks of only termination on account of termination of agreement with the client
You need to include instead the condition regarding absence and mistakes as ground for the same.
Please check if these are already stated in your standing orders, else you may also introduce these terms in the SO. Also prepare a standard operating process on termination, which should include notices to the employee and opportunity of getting heard.
You can / should not terminate an employee for a single mistake (unless u can show the impact was really high). You should have a fair mechanism on that also

The termination of a workmen on fixed term can escape retrenchment only if the termination is as a result of non renewal of contract on its expiry or under a stipulation in that behalf contained in the contract.If the termination is for misconduct rules of principles of natural justice will apply to fixed term contract also like regular workmen.All other termination of fixed term employee will attract Sec 25F /25N of ID Act.
Varghese Mathew
9961266966

Mr. Sai Kishore,

There is a laid down procedure for terminating the employee on the grounds of continued unauthorised absenteeism. The procedure you can find in the Industrial employment (Standing Orders) Act. Even piece rated employees are also considered as regular employees in case they are given regular appointment orders with clear terms and conditions. You are not supposed to employee any persona on temporary tolls beyond 90 days.

In case you wish to terminate the services of an employee on habitual unauthorised absenteeism grounds as stipulated in the certified standing orders of your company (or model standing orders), he should first be served with a show cause notice (charge sheet) obtain his written explanation, on the basis of his explanation, if he accepts his guilt, he should be warned in writing, alternatively a domestic enquiry has to be conducted in the charges leveled against him and on the basis of the findings of the enquiry, he should be warned. After such disciplinary procedures being conducted for warned for 3 to 4 times, he should be suspended for similar misconduct again for 2 to 3 times. After giving such long opportunity to an employee only the final action of terminating the services of an employee can be done, as termination or dismissal of services of an employees is almost likened to death penalty. You need to build up a case like this on any employee, before he his terminated from the services of the company, in case of habitual unauthorised absence. Hope you could understand the procedure, when you do not follow this procedure, labour court is tend to recommend for reinstatement of the employee, which goes against the establishment.

A.V. RAMA JOGA RAO

Your question is restricted to employees

A. Who are not regular to work

B Who have absconded.

Before proceeding further, an information for cases already initiated.If the matter has been referred to the Labour Court, your advocate can opt for submission of witnesses before the labour court if you have not conducted proper enquiry. Discuss with him and explore possibilities. There are judgments on he same and it is possible to lead evidences before labour court.

Let us now examine your specific questions.

A, Employees who are not regular to work

Initiate disciplinary action once in three months/six months depending upon the number of days he/she has absented during this period. Follow procedures for conducting enquiry( I am not elaborating the same here as that is not the issue for discussion here) Punish the employee with suspension, then with sever warning and suspension and on the third occassion, dismiss the employee.Crtitical element here is that you can not initiate action on approved loss of pay hence it is important that Managers do not sanction leave for such of those employees who are irregular.

B Absconding from work

This relates to employees who do not come at all say for more than 10- 15 days.

Follow steps as under

Send a letter stating that he has been remaining absent for so many days and he has to report for work on or before a particular date.

send another communication on the date specified above, stating that inspiteof the letter he has chosen not to attend work and it will be presumed that he has no intention in continuing in employment if he does not report for work on a specified day

Step 1 and step 2 would have taken closer to 25 days or say one month

Send a communication stating that inspite of letter number 1 and letter number 2, he has chosen to remain absent and his name will be removed from the rolls of the on a specified date if he does not report on ( give another date with 7 days time) a date

This would have exausted 37 days.

Send a final communication stating tha the employee has chosen to abscond himself from work and hence his name is removed from the rolls of the company. If you want to be very safe, insert an advertisement in a local newspaper before issuing a final letter

.This may take another 10 days.Hence within 45 days you can remove an absconding employee from the rolls legally