We have a workman in our plant who is found to be engaged in anti-management activities like inciting workmen against management, stopping workers to attend duties etc.
We are deciding to terminate him, however so far no charges have been levied against him. Can we terminate him without giving any charge sheet, show cause notice followed by domestic inquiry?
From India, Suri
4We are deciding to terminate him, however so far no charges have been levied against him. Can we terminate him without giving any charge sheet, show cause notice followed by domestic inquiry?
From India, Suri
No, you cannot terminate an employee without letting him know what all he has done against the policies of the company and without giving him an opportunity to defend himself of the charges levelled against him. If you do not follow the basic principles of natural justice, you will have to take him back at a later stage , ie, when the court interferes. Therefore, collect evidences of his taking part in anti management move, instigating others or preventing others from doing their duty and then issue a charge sheet on the basis of the evidences. He should be given adequate opportunities to be heard by asking him to reply to the charges or action sought against his misconducts and by allowing him to examine or cross examine the witnesses before the Enquiry Officer. Once these processes are over, you can take a final decision and that should also be communicated to him along with copy of the enquiry report. Termination will be valid only if you follow the above procedure.
Regards,
Madhu.T.K
From India, Kannur
Regards,
Madhu.T.K
From India, Kannur
Dear Rajeevji
Any termination of services of workman ( Except Retrenchment ) if it is without the legal domastic enquiry ,wherein sufficient opportunity is given to defend as per the principles of Natural Justice, will be illegal & the concern court will give stay order to such termination. More over while deciding the punishment you have to consider that " The punishment should not be dis-proporationate to the gravity of misconduct "
Regards
S D Patil
From India, Kolhapur
Any termination of services of workman ( Except Retrenchment ) if it is without the legal domastic enquiry ,wherein sufficient opportunity is given to defend as per the principles of Natural Justice, will be illegal & the concern court will give stay order to such termination. More over while deciding the punishment you have to consider that " The punishment should not be dis-proporationate to the gravity of misconduct "
Regards
S D Patil
From India, Kolhapur
Dear Rajeevji
You can not terminate any employee without giving opportunity to heard. and as per law you have to prove charges against workmen and if charges are proved then you can terminate with legal procedure.
From India, Mumbai
You can not terminate any employee without giving opportunity to heard. and as per law you have to prove charges against workmen and if charges are proved then you can terminate with legal procedure.
From India, Mumbai
Hello!
At the outset I completely agree with Mr. Madhu and others. You ought to follow the principles of natural justice before you terminate.
To help you troubleshoot your situation, I am trying to bring some aspects for your consideration:
1. In IR management, law cannot replace managerial courage of conviction. If employer is weak kneed, law cannot grant any strength, even when the workman is wrong!
2. I am assuming that the fellow you want to sack holds some nuisance value and may be, his opinion counts amongst the workmen. So please evaluate how other workmen will react and how will the company react upon termination and map how various situations will unfold and how you want the end-game to be. If employer needs to be in charge of situation even in adversity, there is no alternative to a good home work. Employer's usually approach rationally (or in cold blood!!!) and workmen - emotionally!
3. You can suspend the employee pending enquiry. Suspension notice can state that the chargesheet will follow. (And make sure it follows!). Keep a copy of the same at factory gate and serve it, if and hen he comes. Paste one copy on gate and another to be sent to his address by regd post ad. The messaging to general workmen that your company wishes to achieve will be accomplished. Complete the enquiry and if workman is found guilty, you issue the second show cause etc. and bring finlality. It will take managerial time, money and grit!
4. There is a provision under S-11A under Industrial Disputes Act 1947 where evidence can be adduced in the court, by rival parties in case the domestic enquiry is defective. In the eyes of law, no enquiry and defective enquiry are same! However, you need to examine all aspects under this provision vis-a-vis your facts with a good lawyer. In absence of data, its not fair for me to hazard an opinion :-)
5. If you are in Maharashtra or or are covered by any state law similar to Maharashtra's MRTU &PULP Act, you will need to also fortify yourself in case worker choses to go for Unfair Labour practice Complaint.
Do keep posting your developments and learnings in common interest!
Cheers and good luck!
At the outset I completely agree with Mr. Madhu and others. You ought to follow the principles of natural justice before you terminate.
To help you troubleshoot your situation, I am trying to bring some aspects for your consideration:
1. In IR management, law cannot replace managerial courage of conviction. If employer is weak kneed, law cannot grant any strength, even when the workman is wrong!
2. I am assuming that the fellow you want to sack holds some nuisance value and may be, his opinion counts amongst the workmen. So please evaluate how other workmen will react and how will the company react upon termination and map how various situations will unfold and how you want the end-game to be. If employer needs to be in charge of situation even in adversity, there is no alternative to a good home work. Employer's usually approach rationally (or in cold blood!!!) and workmen - emotionally!
3. You can suspend the employee pending enquiry. Suspension notice can state that the chargesheet will follow. (And make sure it follows!). Keep a copy of the same at factory gate and serve it, if and hen he comes. Paste one copy on gate and another to be sent to his address by regd post ad. The messaging to general workmen that your company wishes to achieve will be accomplished. Complete the enquiry and if workman is found guilty, you issue the second show cause etc. and bring finlality. It will take managerial time, money and grit!
4. There is a provision under S-11A under Industrial Disputes Act 1947 where evidence can be adduced in the court, by rival parties in case the domestic enquiry is defective. In the eyes of law, no enquiry and defective enquiry are same! However, you need to examine all aspects under this provision vis-a-vis your facts with a good lawyer. In absence of data, its not fair for me to hazard an opinion :-)
5. If you are in Maharashtra or or are covered by any state law similar to Maharashtra's MRTU &PULP Act, you will need to also fortify yourself in case worker choses to go for Unfair Labour practice Complaint.
Do keep posting your developments and learnings in common interest!
Cheers and good luck!
Dear All,
All the suggestions which you have given are absolutely correct and i am in the agreement with the same. I just want to add that " If that workmen making same mistake let him do, at least he suppose to make that mistake for three or more than three times. You can issue him show cause and then go for strong disciplinary action (Suspension ) etc on the Standing order background. Send the fillers on shopfloor to spread this information so the situation will be controlled."
Regards
Sachin Gaikwad
From India, Pune
All the suggestions which you have given are absolutely correct and i am in the agreement with the same. I just want to add that " If that workmen making same mistake let him do, at least he suppose to make that mistake for three or more than three times. You can issue him show cause and then go for strong disciplinary action (Suspension ) etc on the Standing order background. Send the fillers on shopfloor to spread this information so the situation will be controlled."
Regards
Sachin Gaikwad
From India, Pune
Bangladesh Labor Law 2006, Section 26.
26. Termination of employment by employers otherwise than by dismissal, etc. : (1) The employment of a permanent worker may be terminated by the employer, otherwise, than in the manner provided else-where in this chapter, by giving to him in writing-
(a) one hundred and twenty days’ notice, if he is a monthly rated worker;
(b) sixty days’ notice, in case of other worker.
(2) The employment of a temporary worker may be terminated by the employer, otherwise than in the manner provided elsewhere in this chapter, and if it is not due to the completion, cessation, abolition or discontinuance of the temporary work for which he was appointed, by giving to him in writing-
(a) thirty day’s notice, if he is a monthly rated worker;
(b) fourteen days notice, in case of other worker.
(3) Where an employer intends to terminate the employment of a worker without any notice, he may do so by paying to the worker, wages in lieu of the notice, which is enquired to be given under subsection (1) or (2), as the case may be.
(4) Where the employment of a permanent worker is terminated under this section, he shall be paid by the employer compensation at the rate of thirty day’s wages for every completed year of service or gratuity, if any, whichever is higher, in addition to any other benefit to which he may be entitled under this Act.
From Bangladesh
26. Termination of employment by employers otherwise than by dismissal, etc. : (1) The employment of a permanent worker may be terminated by the employer, otherwise, than in the manner provided else-where in this chapter, by giving to him in writing-
(a) one hundred and twenty days’ notice, if he is a monthly rated worker;
(b) sixty days’ notice, in case of other worker.
(2) The employment of a temporary worker may be terminated by the employer, otherwise than in the manner provided elsewhere in this chapter, and if it is not due to the completion, cessation, abolition or discontinuance of the temporary work for which he was appointed, by giving to him in writing-
(a) thirty day’s notice, if he is a monthly rated worker;
(b) fourteen days notice, in case of other worker.
(3) Where an employer intends to terminate the employment of a worker without any notice, he may do so by paying to the worker, wages in lieu of the notice, which is enquired to be given under subsection (1) or (2), as the case may be.
(4) Where the employment of a permanent worker is terminated under this section, he shall be paid by the employer compensation at the rate of thirty day’s wages for every completed year of service or gratuity, if any, whichever is higher, in addition to any other benefit to which he may be entitled under this Act.
From Bangladesh
As some colleague suggested it is a matter maintaining Discipline in the establishment. Please assess the situation before taking such a drastic action of terminating without enquiry. Keeping aside legal position for a while, how the other workmen reacts is important. If he had a stronghold on workers, take a little time, follow the procedure. If he is creating such a nuisance which is creating bigger problem or affecting discipline inside take immediate action by suspending him pending enquiry and give feelers to opinion makers about future course of action and loss to organisation because of his activities etc. This will help you to reduce adversity on management when final step is taken and also, people will be prepared mentally for such situation.
From India, Hyderabad
From India, Hyderabad
Why dont you think of transferring him to another place creating avenues, probably a different state. Provide him stay arrangements with promotion, so that it does not look malafide. It is employer's prerogative and if he does not accept, he will have choice to be shown the way or "keep quite" in the same place.
V. Balaji
From India, Madras
V. Balaji
From India, Madras
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Termination-emp loyment_563.pdf
Termination letter.doc