Decided to take a Disciplinary action? Process of Disciplinary proceedings
(Volume – 47 of Coffee Break Compliance Guide from Anandan Subramaniam)
Where discipline by an employee in an organization obeys the lawful orders of the Management and discharges his/her duties faithfully towards achieving the organizational goal. Whereas the misconduct is considered when an act of Omission or Commission by an employee involving a conduct which is not conducive to the policies of the employer. Such policies includes, Code of Ethics, HR Policy, HR service rules, Certified Standing Order, etc. of an establishment.
The process of disciplinary proceedings shall be Legal, Ethical and Transparent. Following is the best practice in the industry:
- Complaint: Where a misconduct or any action which is not conforming to the policies of the establishment, the reporting Manager or the Supervisor shall inform to the HR or Management
- Preliminary enquiry: The Management or the Human Resources shall organize a preliminary enquiry to find out any whether there is a prima facie case exist in the complaint. This is not mandatory but will enable the disciplinary authority to initiate further proceedings.
- Issue of Charge sheet / Show Cause / Charge memo / Notice: The Delinquent employee will be issued with the details of allegation and asking for an explanation from the employee within a stipulated time – either personally or through Registered Post.
- A Charge sheet is usually a memo of accusations, where the employee has violated the service conditions. It shall be specific with all micro details, accurate and unambiguous.
- Explanation from the employee: The explanation communication from the employee shall be perused whether the employee has admitted the charges or not. Where the charges are not admitted and the explanation given by the employee was satisfactory, the issue shall be closed with warning letter, if necessary. Else, Management shall decide to call for a Domestic Enquiry
- Suspension pending enquiry: This is warranted in few occasions, where the continuation of employee in the workplace may likely to endanger the work atmosphere and leading to tampering of proof, adverse effect on other employees and may cause further loss to the company.
- Power to suspend; The appointing authority is authorised to suspend the delinquent employee and such employee is eligible for Subsistence Allowance as per the Certified Standing Order or the Regulatory legislation. The suspension is always Prospective and never be Retrospective
- Notice of enquiry: The Disciplinary authority shall designate an Enquiry Officer (EO). He/she may from the establishment or from outside. Subsequent to the appointment of EO, a notice to this effect must be given well in advance to the delinquent employee. Service of notice shall be through personal delivery or through Registered post. Serving of notice is to be ensured before commencing the proceedings.
- Principles of Natural Justice: The rights of the individuals shall always be protected against any arbitrary procedures. Objectives of Natural Justice is (i) application of fair play, (ii) impartiality (iii) a sense of what is right. Besides “no one should be judge in his own cause” and “Hear the other side” are supposed to be the major principles of natural justice.
- Domestic enquiry: On the said date and time the EO can commence the enquiry. Primarily EO needs to check with the delinquent employee, whether the charge sheet is received and understood by him/her. Complainant be examined and delinquent employee may be allowed to cross-examine the complainant. EO shall record the statements of Complainant, Delinquent employee, Management representative and Witnesses (of complainant and delinquent employee). Arguments shall follow such recordings of statements and evidences. On conclusion of the enquiry, a report is prepared and acknowledgement from delinquent employee and Management representative. The report shall capture that the charge sheeted employee was given adequate opportunity to defend his/her case favourably.
- Ex-parte enquiry: This is necessary during the following occasions:
- Charge-sheeted employee refuses to accept the Charge-sheet even after such notice was published in a local newspaper;
- Charge-sheeted employee refuses to attend the enquiry, after accepting the notice;
- Where the charge-sheeted employee refuses to cooperate in the process of the enquiry;
- When the charge-sheeted employee walks out of enquiry.
- Enquiry Report: Further to the completion of enquiry, the EO, shall share the “Findings” to the Management and there “Shall NOT be any Recommendations”. Let the Findings are Fair and not any suspicious, on assumption or speculative.
- Decision on Enquiry Report: The Management shall take appropriate decision,
- If charges are not proved, Relieve the delinquent employee from all the accusation and absolve;
- If the charges are proved beyond doubt, appropriate action may be taken which includes dismissal;
- Notwithstanding, if the charges are proved and Management wants to waive the punishment considering loyalty and goodwill of the employee in the past, it can be limited to lesser punishment too.
- Action before decision of extreme punishment: A show cause notice shall be served on the delinquent employee, upon such proved charges, why punishment cannot imposed? If the Disciplinary authority is not satisfied with explanation or the employee could not able to defend himself/herself, the decision shall be taken accordingly and informed to the Appointing authority who has the right to impose such punishment.
- Types of Punishment:
- The Punishment usually shall be corrective and preventive in nature;
- It shall not be vindictive, mala-fide or excessive;
- It shall be Fair and Just; It shall prevent recurrence from such employee or others;
- Maintain Discipline amongst all employees;
- Ensure right message, where misconduct is intolerable.
Section 11A of the Industrial Disputes Act, 1947
Powers of Labour court, Tribunals or National Tribunal to give appropriate relief in case of discharge or dismissal of workmen.
Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.
Any non-conformation of conduct is pardonable, if it is minor and doesn’t affect the discipline of an organization. If it is grave, without exception, it needs to be punished.