- Who is a ‘Workman’? How would you classify one? How would you classify a ‘Non-Workman’?
It is very difficult to decide whether an employee is a Workman or not. It entirely depends upon the dominant nature of service of the employee and the Court’s interpretation based on evidence produced by parties. While deciding whether an employee is a workman or not important aspects such as role played by the person in performance appraisal, benefits availed by the employee, authorization to initiate disciplinary action against employees are some of the considerations.
While examining whether the person is employed mainly in managerial or administrative capacity it is necessary to look into the duties performed by the person. Essentially if an employee engaged in a managerial capacity is called upon to look after the interest of the management, to discharge a part of the function of furthering the business of the employer and in a manner which would warrant a degree of independence in action within the limits of authority, then such a workman will not be covered under the definition of Workman.
In contrast, if a person’s employment predominantly involves manual, non-administrative or clerical work without any creative inputs or decision making powers he is considered a Workman.
- Managerial Work
- Administrative Work
- Supervisory Work
- Work involving high skill & training
- Creative Inputs
- Decision making powers
- Academic work
- Executive functions
If an individual’s work meets the below categories he is considered a Workman –
- Clerical Work
- Non Managerial
- Non Administrative
- Casual Worker
- No Decision Making Power
- No Creative Inputs
If an individual’s work meets the below categories he is considered a Non-Workman – For detailed information see How is ‘Workman’ defined under Indian Employment law?
- Prolonged absence – a major misconduct!
Relying on the cases of Delhi Transport Corporation V/s Sardar Singh, 2004 and State of Rajasthan and Anr. V/s Mohd. Ayub Naz, 2006 Hon’ble Karnataka High Court opined that, as per labour laws in India, prolonged absence without sanction of the Company is a major misconduct, workmen should not take for granted that they can rejoin duty as and when they deem fit. In Management, BMTC rep. by Chief Law Officer V/s E. Balakrishna, 2012, the Hon’ble Karnataka High Court held that the workman in question, in absenting from his duty for an inordinately long period, did not conduct himself in a disciplined manner and there was lack of interest and devotion to his duty and had therefore committed a major misconduct.
- Should there be a paid holiday on the day of a Poll?
Section 135 B of The Representation of the People’s Act, 1951 lays down that any person who is employed in any trade, business, industrial undertaking or any other establishment and entitled to vote at an election at the House of People or Legislative Assembly shall be granted a holiday on the day of the Poll. The terms, Trade, Business, Industrial Undertaking and any other establishment have not been specifically defined in the Act, therefore the definitions may have to be taken in their general sense to mean nearly all kinds of workplaces where commercial manufacturing activity takes place. However, in units carrying out continuous and uninterrupted manufacturing activity, giving effect to the notification becomes impossible. In power generating companies, petrol-chemical complexes, unites carrying out hazardous processes, chemical factories, call centers, IT Parks, super markets, malls, airports, it is not possible to declare a holiday. Therefore, in the Act itself Section 135b (4) provides that the section shall not apply to any elector whose absence may cause danger or substantial loss in respect of the employment in which he is engaged.
For detailed information see What Indian Employment Laws Say About Paid Holiday on the Day of Poll
- What is the cause for industrial violence? How should one tackle it effectively?
The exact cause for industrial violence is extremely hard to pin point. Instances of violence have erupted due to different reasons and circumstances. However, some of the common reasons are inordinate delay in hearing workmen’s pleas, unfair working conditions, huge disparity between increases in wages vis a vis inflation in essential commodities, widespread adoption of outsourced employees, exploitation of outsourced employees, huge difference in working conditions and benefits of permanent workmen and outsourced employees.
Tackling/ avoiding Industrial violence is a set of strategic steps, which if taken effectively can go a long way in avoiding and tackling industrial violence. For details see Industrial Violence and Industrial Relations in India
- What benefits does a pregnant female employee have under Indian employment laws?
Maternity Benefit Act, 1961 aims to secure just and humane conditions of work for women, pre and post child birth and is a beneficial employment law in India.
The Act entitles women to maternity benefits, pre and post child birth and in cases of miscarriage. This, however, is subject to fulfillment of some per-conditions. Under this Act an amount of Rs 3, 500/- is paid as medical bonus to women entitled to maternity benefit. The Act provides for 12 weeks of paid leave as maternity leave and 6 weeks in case of miscarriage or termination of pregnancy. In addition to the provisions for leave and cash benefits, the Act also makes provisions for matters like light work for pregnant women 10 weeks prior to her delivery, nursing breaks during daily work till the child attends age of 15 months, etc. The Act imposes punishment for a period of minimum three months or fine extending to Rs. 5000 on the employer, in the event of any failure to provide maternity benefits to female employees. For further details see Salient Features & New Developments in the Maternity Benefit Act Of 1961
- What benefits does an employee have under the ESI Act?
The ESI Act provides for Medical Benefits wherein full medical care is provided to an Insured person and his family members from the day he becomes insured, Sickness Benefits in the form of cash compensation is payable to insured workers during the periods of certified sickness for a maximum of 91 days in a year, Maternity Benefits, temporary and permanent Disablement Benefit, Dependent’s Benefit, Funeral expenses and other benefits like Vocational Rehabilitation, Physical Rehabilitation, Old Age Medical Care, Rajiv Gandhi Shramik Kalyan Yojana, Incentive to employers in the Private Sector for providing regular employment to the persons with disability etc. For further details see Employee’s Benefits under Employee’s State Insurance (ESI) Act 1948
- Can Bonus amount be forfeited?
An employer has the right to forfeit the Bonus of an employee under certain circumstances; Section 9 of the Payment of Bonus Act, 1965 states that notwithstanding anything contained in the Act, an employee shall be disqualified from receiving Bonus under this Act, if he is dismissed from his service for Fraud or Riotous or violent behaviour while on the premises of the establishment; or Theft, misappropriation or sabotage of any property of the establishment.
Further, Section 18 of the Act states that, if an employee is found guilty of misconduct causing financial loss to the employer, then, the employer can deduct the amount of loss from the amount of bonus payable by him to the employee under this Act. For further details see Bonus under Indian Employment Law
- How does one calculate his Gratuity amount?
Any employee completing 5 years of continuous service is entitled to Gratuity at the rate of 15 days of wages per years of completed service.
For the sake of wages, Basic and Dearness Allowance are taken into consideration. The following formula is used to calculate the amount of Gratuity payable.
Gratuity = Basic + Dearness Allowance x 15 x No. of years of continuous service.
For further details see Gratuity Law In India
- Can an employee be terminated without holding domestic enquiry?
The right to hearing is a Fundamental Right. That’s why Indian employment laws provide for conducting domestic enquiries when an employee commits misconduct. The employer per se cannot dispense with enquiry. But in the rarest of rare cases if the employer is unable to conduct domestic enquiry and it is not possible for the management, in the interest of the organisation, to continue with the services of the employee, the employer can terminate the services without holding a domestic enquiry. However, as per employment laws in India, such termination has to be justified before the Court and the employer shall have to place or record reasons for not conducting the enquiry. For further details see Do Indian Employment Laws allow Termination of an Employee without Domestic Enquiry?
- What is sexual harassment? How should it be dealt with?
Sexual Harassment has been defined in the guidelines laid down by the Hon’ble Supreme Court in the matter of Vishaka v. State of Rajasthan. According to the judgment sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as:
a) Physical contact and advances;
b) A demand or request for sexual favours;
c) Sexually coloured remarks;
d) Showing pornography;
e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The 12 guidelines of Vishaka V/s State of Rajasthan lay down duties for the employer and other responsible persons to prevent and deter sexual harassment at workplace, setting up Complaints Committee and a complaints mechanism for tackling cases, spreading of awareness, implementing sexual harassment policies etc.
For further details see Sexual Harassment and Labour Laws in India – The Vishaka Perspective
- What should an employee do when she feels that she has been sexually harassed?
Firstly, the employee must make sure to express clear objection at the conduct of the harasser. If the sexual harassment has been through SMSs and/or chats, the concerned employee must inform the sender clearly that such she finds such SMSs and chats offending. Thereafter, the employee may immediately report the incident to the concerned HR Department/officer or Complaints Committee about the incident and must take trusted colleagues into confidence.
- How should a complaint be made in the event of sexual harassment?
The complaint, firstly, must be in writing and addressed to The Presiding Officer / any Member of the Internal Complaints Committee / Local Complaint Committee who are also authorised to render assistance under the Act of 2010 to the woman if she’s unable to make a written complaint.
Also, if the concerned woman is physically / mentally incapable of complaining, or has passed away, then her legal heirs can make the complaint on her behalf.
- What steps must an employer take as per the Protection of Women Against Sexual Harassment at Workplace Act, 2010 to keep Sexual Harassment at bay?
An employer must ensure –
- Safe Work environment.
- Display conspicuously the order constituting Internal Committee.
- Regular Workshops and training programs for sensitizing employees regarding the Sexual
- Harassment of Women at Workplace Act.
- Provide facilities to Internal /Local Committee for dealing with complaint/inquiry.
- Assist in securing attendance of respondent &witnesses before the Committee