If Union hoist their flag in employer’s property, what is the remedy available to the employer
No doubt, workers have fundamental right to form association and get themselves registered under Trade Unions Act, putforth their demands before management and act as a collective bargaining agent.
It is also true that there should be industrial peace in the industry but at the same time that can not be at the expenses of management right.
The unions can not unilaterally dictate terms in the name of industrial peace. It is undoubtedly true that visitors/customers coming to any such business premises and see such flags, posters and mast would naturally be afraid to have business with such company because of getting suspicious about the capability of the company to fulfil their commitment in time knowing about the climate on account of over dose of trade union activities.
If Union people have hoisted the flags, in the employer’s premises and on the common wall which not only belongs to the employer but to others also, in such situation no union has any right to do such activity in the property belonging to the employer or others.
Employer has legitimate rights to ask union to remove such flags, mast and posters from the premises and if they do not agree to it, remove yourself with the appropriate help of concerned authorities. Kerala High Court in the case of Kerafibertex International Pvt. Ltd. vs. Kerafibertex Employees Association, has also so held.
By Dayanand N. Mangaonkar
Read MoreCan Management ask employees to give undertaking to comply with social distancing, wear mask, maintain discipline and give full production?
Can such employee be marked absent and not allowed to join duties if they refuse to give undertaking?
There appears no industrial dispute at this point as their names are very much on the rolls of the company and they have been marked absent and not paid wages because they did not give undertaking which was required.
Undertaking does not in any way change the service conditions. Though the facts of a case are not exactly the same but similar to some extent where Industrial Tribunal, Bombay, in the case of Vishnu Tulsiram and Others vs. Metal Press India Bombay, has held that.
Keeping the workmen out of the factory premises unless they give the required undertaking did not amount to termination of their services or punishing them. It was upto the workmen to give the undertaking and to enter the factory. If they did not give the undertaking and consequently did not work, the employer can not be said to have wrongly marked them absent.
The undertaking demanded by the employer did not amount to alternation of the rules as there were no existing rules. Marking the workmen absent and depriving them of their wages did not amount to introduction of new rules of discipline.
The undertaking asked by the employer is legal and effective and there is no contravention of Section 9-A. More such guidelines are also mandated by the Government to follow keeping in view the Covid Pandemic.
By Dayanand N. Mangaonkar
Read MorePending Disciplinary Proceedings, Can Gratuity be withheld?
Gratuity amount of the employee who is retired can not be withheld on the ground that disciplinary proceedings are pending against him or her. There is specific provision in the Payment of Gratuity act, 1972 which deals with the forfeiture of Gratuity. Pending disciplinary proceedings are not a disqualification under section 4(6) of the Act.
Gratuity becomes payable as soon as employee resigns or superannuated after completing the continuous service of five years. If employee claims his dues, you will be liable to pay and may be with interest if delayed.
Supreme Court in the case of Jaswant Singh Gill vs. Bharat Coking Coal Ltd., and Madhya Pradesh High Court in the case of General Manger (Region) Food Corporation of India vs. Ramdayal Meena, have also held in the same direction.
By Dayanand N. Mangaonkar
Read MoreCall centre company plans to install CCTV at homes to monitor performance
Employees are outraged. Companies nowadays like to monitor the performance of their employees with the help of data entry applications and tools that are limited to office space. In other words, only the professional side of an employee can be monitored for performance analysis, that would eventually determine things like bonus, appraisals, and promotion.
But now, many organisations are drifting from the standard path to see how their employees are performing.
Employees at one of the biggest call centre companies in the world have expressed outrage after being told to install cameras in their homes to monitor their work performance.
According to reports, the company pressured the workers to get cameras installed and also wanted to monitor them via voice analytics and storage data collected from family members.
By Dayanand N. Mangaonkar
Read MoreHow ‘return to office’ will change employee behaviour
Now that people have adapted themselves to remote working, will being asked to return to office bring about major changes in employee behaviour? Will dealing with behavioural changes in the workforce be the next major challenge for employers?
Many IT giants, such as TCS and Infosys are keen to call all their employees to the office. In fact, they are prepping to open their office starting September 2021. However, we still have to understand and acknowledge the fact that irrespective of divided opinions on ‘return to office’ and the ideal capacity at which to operate, it has been almost a year and a half since people started working from home. At first, most employees were really delighted that they could avoid the cumbersom commute to work and spend more time with their family members, but after working remotely for a while, many started to understand that home can never replace the workplace.
Many houses in India, especially in a city like Mumbai, are too small and unfit for office work.
It wasn’t long before people started facing problems such as extended work hours and burnouts due to immense workload. Managing house and office work at the same time started taking a toll on professionals. Then came the second wave of the pandemic, driving home the harsh reality that remote work is here to stay for a long time. When this realisation dawned, people once again resigned themselves to the work-from-home situation and started to adjust their lives and routines accordingly. Now, they have more or less adapted themselves to the remote-working model. Calling them to work from office, full time, after all this while, will naturally create challenges for employers.
“I believe customised managerial roles will emerge to fulfil business needs and to provide personalisation to all employees and meet their needs. Companies may have to create roles meant to fulfil or attend to the personal needs of employees”. Unmesh Pawar, senior HR leader.
The biggest challenge would be the change in employee behaviour. After over 18 months of tweaking their daily routines around work-from-home, these employees will now need interventions on the part of their employers to help them mentally re-adjust to the long-forgotten office routine. While most may be physically present in the office, mentally they will be in the remote-working mode.
Reetu Raina, CHRO, Quick Heal, agrees that there has been a psychological shift in people as they have all adapted to remote working, and if they are asked to work full time at the office, companies will certainly have to deal with some behavioural changes.
Collaboration issues:
Employees have been working in silos most of the time. On returning to office, it will be difficult for them to accept interruptions, such as people peeking at their screens or their work. As a result, some employees may also find it tough to collaborate with others and build bonds like old times.
Sharing issues: People have, by now, come to accept their own workspace at home. In fact, they have probably even started loving that fixed and private ‘my space’, which is all theirs. On the other hand, in the office, they will be part of a common workspace that has to be shared with other team members. It will definitely not be easy at first to get used to sharing space or even having people around.
Supervision issues: During remote work, employees did not have managers calling them or checking on them every few minutes. Therefore, once they return to office, they will expect the same pattern to continue and will be averse to being micromanaged by their managers and supervisors.
“When office resumes, managers cannot afford to micromanage at all,” tells Raina.
“When office resumes, managers cannot afford to micromanage at all”
Reetu Raina, CHRO, Quick Heal
Raina suggests that companies employ some learning and development modules to help develop behaviours of team building and collaboration in employees, so that psychologically they can get back to normal. At some point, employers may even have to consider accepting certain behavioural changes.
Unmesh Pawar, senior HR leader, believes that human beings are used to adjusting themselves to situations. In fact, he rightly points out that a larger number of employees would want to come back to offices because they do not have proper workstations at home. Citing the example of cities like Mumbai, where space comes at a premium, he draws attention to the fact that not all employees have proper workspaces at home.
Additionally, expectations of employees will also change along with their behaviour. Many people have come to realise that remote work and work from home is possible with limited impact on productivity. Therefore, many already consider flexibility as a must-have policy at work, rather than just a perk. “Earlier, employees worked from home only in particular situations, but now, they will start demanding it,” feels Raina.
“I believe customised managerial roles will emerge to fulfil business needs and to provide personalisation to all employees and meet their needs. Companies may have to create roles meant to fulfil or attend to the personal needs of employees,” shares Pawar.
Pawar does, however, insist on employees getting back to office, as he feels it will make them more disciplined in some ways. They will be forced to start planning their work and scheduling activities in advance to avoid wasting time.
Besides, there will be more emphasis on the hygiene factor at the workplace. People will be more cautious about touching surfaces and getting close to people.
By Dayanand N. Mangaonkar
Read MoreDifference between Fixed term Employment (FTE), Permanent Employment (PE) & Contract Labour (CL)
We can understand the difference from two angles.
One is Practical and another is Legal.
When it is seen practically, all work in the establishment for long duration doing sometimes same or similar nature of work with few exceptions but with difference in salary and benefits. It is difficult to ascertain the difference by seeing them at workplace but legally there is a difference.
Fixed Term Employment was not defined as category of employment in Industrial Employment S.O. Act, 1946 till 2018 when it was defined in Central Rules of the Act. This category of employment has now also find a place in new Industrial relations Code, 2020 which is an employment based on written contract for a fixed period. Both establishment and employee know beforehand about the tenure of the employment and when it will expire. In this kind of employment there is no 3rd party between establishment and employee. Such employee employed on fixed term will be on direct payroll of the establishment. For such category, there will be no legal obligation of paying retrenchment compensation on expiry of the contract. However, payment of gratuity is mandatory even if such FTE employee’s tenure of employment is less than 5 years. In other words this category of employment is outside the purview of retrenchment. Law does not prescribe any limit of renewal period. Nature of work is also not specified which means that fixed term employee can work the same and similar kind of work which the permanent employee does.
Permanent Employment is a kind of employment against the permanent vacancy in the establishment which is filled by establishment. Such person on permanent post can not be terminated like person employed on fixed term. Permanent employee either can be retired on attaining the age of retirement as agreed in terms of employment or service rules, or retrenched after compliance of related provisions of and Industrial Disputes Act, 1947 or dismissed if found guilty of misconduct after completing Disciplinary Proceedings and compliance under Industrial employment SO Act, 1946. Such persons are employed for permanent nature of work.
Contract Labour is a category of employment in the establishment which is employed by the 3rd Party i.e. Contractor and not by the establishment directly but for the work of the establishment under a contract executed between establishment and contractor. Such employees are not on the roll of the establishment. They are appointed, paid, terminated by the contractor and not by the establishment. Also the control and supervision on the work accomplished by such contract labour in the establishment remains with the contractor. They can be paid lessor wages (subject to payment of minimum wages) as compared to on roll employees. Such employment of contract labour can be prohibited by the appropriate Government in any process of any industry, if govt considers that such contract labourers are engaged in perennial nature of the work of the establishment. If the contract is not sham and is genuine and fair and observing all compliance and rendering all applicable benefits to its contract labour, then such labour engagement can be continued for years together legally.
By Dayanand N. Mangaonkar
Read MoreApple sends employee on indefinite leave for speaking up about sexism at workplace
A senior programme manager at Apple, Ashley Gjøvik, alleges that she has been put on administrative leave for being vocal about the working condition in the Company, especially for women. She alleges that Apple has a very hostile work culture, which is not safe for women staff. When she spoke up about it and tweeted her concerns, she was sent on indefinite paid leave.
As per statements given by her to the media, she has been sharing her concerns— related to hostile and unsafe working conditions at the Company — with the employee-relations department. In addition to being put on indefinite leave, Gjøvik has also been banned from being live on the Company’s Slack channel and has also been barred from talking to or interacting with other women at the workplace or taking feedbacks on the working conditions.
Gjøvik states that when she approached the employee-relations department with her concerns, instead of seriously investigating her case, they advised her to be put on an the employee-assistance programme or else take a medical leave. Gjøvik claims that she asked the employee-relation team to talk to her leadership teams and mitigate the hostile work culture at the Company, but nothing was done and she was sent on indefinite administrative leave. This is not the first time that Gjøvik has raised her concerns about the working conditions at the firm.
The employee relations team has investigated her concerns in the past as well, but apparently found nothing wrong.
In a media statement, Apple says that it takes all such cases with utmost seriousness and promotes an inclusive work environment.
By Dayanand N. Mangaonkar
Read MoreWill your Nominee get the money on your death ?
Did you think that your nominee is the person, who will get all the money legally from your Life Insurance Policy and Mutual funds investments ?
Ha! That is exactly what you think if you are not aware of the legal aspects.
We assume a lot of things which sounds like they are obvious, but are not true from the legal point of view.
Today, we all concentrate on nominations in financial products.
For whom are we earning ?
For whom are we investing ?
Who, do we want to leave all our wealth to, in case something happens to us ?
It might be your children, your spouse, parents, siblings etc., or just a subset of these.
You also might want to exclude some people from your list of beneficiaries!.
So you think you will nominate person X in your Insurance policy, and when you are dead and gone, all the money goes to person X and he/she becomes the sole owner ? You are wrong, dude !
It does not work that way.
Let us see how it actually does!
What is a Nominee ?
According to law, a nominee is a trustee, not the owner of the assets.
In other words, he is only a caretaker of your assets.
The nominee will only hold your money/asset as a trustee and will be legally bound to transfer it to the legal heirs.
For most investments, a legal heir is entitled to the deceased’s assets.
For instance, Section 39 of the Insurance Act says the appointed nominee will be paid, though he may not be the legal heir.
The nominee, in turn, is supposed to hold the proceeds in trust and the legal heir can claim the money.
A legal heir will be the one who is mentioned in the will.
However, if a will is not made, then the legal heirs of the assets are decided according to the succession laws, where the structure is predefined on who gets how much.
For example, if a man during his lifetime executes a will… In the will, he mentions his wife and children as legal heirs, then after his death, his wife and children are the legal owners of his assets.
It is essential that one needs to execute a will.
It is the ultimate source of truth and replaces the succession law.
Nominee can also be one of the legal heirs.
Important :
Mention the Full Name, Address, age, relationship to yourself of the nominee.
Do not write the nomination in favour of wife and children as a class.
Give their specific names and particulars existing at that moment.
If the nominee is a minor, appoint a person who is a major as an appointee giving his full name, age, address and relationship to the nominee.
Why is the concept of Nominee ?
So you might be wondering, if the nominee does not become the sole owner, why does such a concept of a nominee exist at all ?
It is pretty simple. When you die, you want to make sure that the Insurance company, Mutual fund or your Shares should at least get out of the companies and go to someone you trust, and who can further help, in process of passing it to your legal heirs.
Otherwise, if a person dies and has not nominated anyone, your legal heirs will have to go through the process of producing all kind of certificates like death certificates, proof of relation etc., not to mention that the whole process is really cumbersome! (For each legal entity! The insurance company, the mutual funds, for the shares, for the real estate..) .
So, to simplify, if a nominee exists, these hassles do not happen, since the company is bound to transfer all your money or assets to the nominee.
The company then goes out of scene & then, it is between nominee and legal heirs.
Example of Nomination :
Ajay was 58 years old who died recently in an accident. As his children were settled, he wanted to make sure that his wife is the sole owner of all the monetary assets. This includes his insurance policy and mutual funds. So during his lifetime, he nominated his wife as a nominee in his term insurance policy and mutual funds investments. However, after Ajay’s death things did not turn up the way he wanted. The reason being Ajay did not leave a will. Though his wife was the nominee in all his movable assets, as per the law, his wife, along with children, were the legal heirs and all of them had equal right to Ajay’s assets.
One simple step which could have saved the situation was that Ajay should have made a will which clearly stated that only his wife was entitled to get all the money and not his children.
Nomination in Saving/Current/FD/RD Account in Banks :
FD’s also come with nomination facility. While opening a new account, there is a column for nomination in the same form and you should fill it. You can nominate two persons with first and second option. Note that in case you have not done any nomination till now, you should request Form No DA-1 from your Bank which is used to assign a nominee in future. (Examples of ICICI Bank , HDFC Bank , Canara Bank) .
In the same way to change/cancel the nomination, you need to fill up Form no DA-2.
Read about Corporate Fixed Deposits :
As per a famous case, A Bench of Justices Aftab Alam and R M Lodha in an order said that the money lying deposited in the account of the original depositor should be distributed among the claimants in accordance with the Succession Act of the respective community and the nominee cannot claim any absolute right over it.
Section 45ZA(2)(Banking Regulation Act) merely put the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositors so far as the depositors account is concerned. But, it by no stretch of imagination make the nominee the owner of the money lying in the account, the Bench observed.
NOMINATION IN PPF :
Let me give you some shock first. If you have Rs 10 lakh in your public provident fund (PPF) account and you have not nominated anyone for your PPF account, your legal heirs will get maximum of Rs1 lakh only!
Yes, it is so important to have a nominee, now you get it .
You can nominate one or more persons as nominee in PPF. Form F can be used to change or cancel a nomination for PPF.
Also note that you cannot nominate anyone if you open an account for a minor.
Nomination In Life Insurance
A policyholder can appoint multiple nominees and can also specify their shares in the policy proceeds. Nomination in life insurance has one limitation, as insurance policies are bought to secure your financial dependents, your first choice of nominee has to be your family members. In case you want to nominate a non-family member like a friend or third party, you will have to show/PROVE the insurance company that there is some insurable interest for the person. This happens because of a Clause called PRINCIPAL OF INSURABLE INTEREST in insurance. Note that provision of nomination in life insurance is related to Section 39 of the Insurance Act.
Note that as per LIC website
Nomination is a right conferred on the holder of a Policy of Life Assurance on his own life to appoint a person/s to receive policy moneys in the event of the policy becoming a claim by the assured’s death. The Nominee does not get any other benefit except to receive the policy moneys on the death of the Life Assured.
A nomination may be changed or cancelled by the life assured whenever he likes without the consent of the Nominee.
Make sure, you have a nominee for your policy for easy settlement of the claim, if you do not have any nominee mentioned in the policy, it can turn out to be a disaster for your dependents to get a claim.
Nomination in Mutual Funds :
In case of mutual funds, you can nominate up to three people, who can be registered at the time of purchasing the units. While filling in the application form, there is a provision to fill in the nomination details.
Even a minor can be a nominee, provided the guardian is specified in the nomination form.
You can also change nomination later by filling up a form which is available on the mutual fund company website.
Nomination in mutual funds is at folio level and all units in the folio will be transferred to the nominee(s). If an investor makes a further investment in the same folio, the nomination is applicable to the new units also.
A non-resident Indian can be a nominee, subject to the exchange control regulations in force from time to time.
NOMINATION IN SHARES :
Quiz for you…
Now you know what a Nominee means and who actually gets the money.
So if there is a husband H, with wife W and nephew N, and he has nominated his nephew N to be the nominee of his shares in demat account, who will have the legal right to own the shares after husband’s death ? If you answer is wife, you are wrong in this case!
In case of stocks, it does not work the usual way, if a will does not exist.
In the verdict, Justice Roshan Dalvi struck down a petition filed by Harsha Nitin Kokate, who was seeking permission to sell some shares held by her late husband.
The Court noted that as she was not the nominee, she had no ownership rights over the shares. Ms Kokate’s lawyer had argued that as she was the heir of her husband who had died intestate (without a will), she should have ownership rights of the shares, and be able to do anything with them as she wished.
In this case, Ms Kokate’s husband had nominated his nephew in favour of the shares. Justice Dalvi however noted that under the provisions of the Companies Act and the Depositories Act, Acts which govern the transfer of shares, the role of a nominee was different.
A reading of Section 109(A) of the Companies Act and 9.11 of the Depositories Act makes it abundantly clear that the intent of the nomination is to vest the property in the shares which includes the ownership rights there under in the nominee upon nomination validly made as per the procedure prescribed, as has been done in this case.
It means that if you have not written a will, anyone who has been nominated by you for your shares will be the ultimate owner of those stocks… The succession laws on inheritance will not be applicable… but, in case, you have made a will, that will be the source of truth.
CONCLUSION :
Now you know!
Taking Personal finance for granted can be fatal!!!!!
Just investing knowledge, is not enough to have a great financial life.
You also need to be well versed with basic legal aspects and make sure you carry out all due arrangement .
Nomination is one important aspect you should seriously consider, when checking for the financial products you have bought or plan to buy in future.
Mistakes in Personal Finance :
It’s important to make sure that your loved ones do not face legal issues and only say and think lovely thoughts about you when you are not around, rather than crib.
By Dayanand N. Mangaonkar
Read MoreHow the Commissioner can assess the loss of earning capacity to determine the compensation?
The loss of earning capacity has to be determined by taking into account the destruction or diminution of physical capacity as disclosed by the medical evidence and when it has to be seen to what extent such destruction should reasonably be taken to have disabled the affected workman of his class ordinarily.
Physical capacity is an important factor in the assessment of loss of earning capacity. In the absence of medical evidence by the doctors examining the claimant on behalf of either side, it is difficult to measure the physical disability of the claimant and thus also destruction or otherwise of the earning capacity.
The Calcutta High Court in the case of Ram Naresh Singh vs. Lodhina Colliery Company Ltd., has declared the four principles for determining the loss of earning capacity;
1. Earning is not the same as earning capacity;
2. Rise in earning may be because of various factors and rise in wages is not, therefore, decisive proof that there is no loss of earning capacity;
3. Loss of physical capacity or physical incapacity may be relevant in assessing as to upto what extent there is loss of earning capacity;
4. Loss of physical capacity or physical incapacity may be relevant in assessing to what extent there is loss of earning capacity from “every employment” which the workman was capable of undertaking at the time of the accident or re-employment in which he was engaged at the time.
Orissa HC in the case of Prasanta Kumar Manjhi vs Managing Director, Orissa Mining Corporation, has held that when the employee continues in the same employment after accident and earns same salary, he can not be said to have suffered any loss of earning capacity and so not entitled to get any compensation.
By Dayanand N. Mangaonkar
Read MoreRetrenchment – Mandatory conditions to be complied to be on the right side of the Law
Nowadays due to pandemic situation and lockdown many industries are closing down. Now the question comes how to part with workers in such uncertain situation. Here are some check points & Law Points which every Employer & HR Personnel must remeber;
Retrenchment – Mandatory conditions to be complied to be on the right side of the Law;👨⚖
The law relating to retrenchment is stated under section 25F of the Industrial Disputes Act whereas section 25G is for the procedure for retrenchment. Under section 25F of the Industrial Disputes Act the employer is under obligation to pay retrenchment compensation along with the notice or rather before the notice keeping in continuous service for not less than one year under an employer until the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of notice.
There have been large number of cases by High Courts and Supreme Court where the compensation has not been paid simultaneously which have resulted into reinstatement of the workman and generally with full back wages.
The Supreme Court has held that a plain reading of section 25F of the Industrial Disputes Act, 1947 makes it clear that the requirement prescribed by it is a condition precedent for the retrenchment of the workman, and non-compliance with the said condition renders the impugned retrenchment invalid and inoperative. The mandatory language of section 25F of the Industrial Disputes Act, plain and unambiguous in effect, leaves no manner of doubt that the payment of compensation, as required by it, is a condition precedent to retrenchment. In another case, it has been clarified that if the retrenchment is invalid notwithstanding the fact that the amount of compensation can be recovered under section 25F of the Industrial Disputes Act, 1947.
This has also happened that Hongkong & Shanghai Banking Corporation had to pay Rs. 1,07,73,736/- (Rupees One Crore Seven Lakh Seventy Three Thousand Seven Hundred Thirty Six only) to an employee merely for non-payment of retrenchment compensation on her termination.
1. JK Iron & Steel Co. Ltd., Kanpur vs. Iron Steel Mazdoor Union, Kanpur (1955) 2 SCR 1315 : 1956 (1) LLJ 227 : AIR 1956 SC 231.
2. State of Bombay vs. Hospital Mazdoor Sabha, AIR 1960 SC 610 (1) LLJ 251 : 1960 (17) FJR 423.
By Dayanand N. Mangaonkar
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