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Abhirup (Vice President - Employee Relations)     06 February 2013

Maternity act

Dear Experts,

 

Does an employer have the right to terminate / dismiss an employee if she has exhausted the 4 months leave given for maternity and also other available leaves , but is unable to return to work due to medical issues.

 

The question is also for long term sickness and short term sickness

 

Thanks

Abhirup



Learning

 2 Replies

Advocate Rohit (Advocate)     06 February 2013

if the employee had exhausted her all types of leaves i.e. casual leaves, sick leaves and maternity leaves then she is bound to resume the duty. but due to medical reason if she requires further leaves for a short period then the employer might allow, subject to the work in her absence is being taken care of by her colleagues/department. Otherwise there is no compulsion on the company to accept such requests, they may terminate the employment of such employee and hire a new employee in her place as the company cannot give leave to the employee for an indefinite period.

 

if the employee has good track record and the employer do not want to lose such employee and if its possible for the employee to do her work from home for sometime, then employer should look into it.

 

final call rests with the employer.

 

Regards,

Advocate Rohit Dalmia

9324538481

Mumbai

Kumar Doab (FIN)     06 February 2013

This is an interesting discussion. The inputs from learned experts/members shall enrich the forum.

Mr. Rohit has given valuable advice. Kindly follow it.

Given below is a heartfelt opinion only.

You may take a qualified and suitable decision.

You have posted that:

“if she has exhausted the 4 months leave given for maternity.”

“but is unable to return to work due to medical issues.”

 

What is your establishment a Govt. Undertaking, PSU…..etc.

It is felt that for Women Employees of State Public Sector Undertakings / Statutory Boards……the Maternity Leave has been enhanced from 90 to 180 days.

 

Probably the medical issues/complications are due to pregnancy/delivery and the employee has been submitting Doctor’s Rx/advice for seeking leave for treatment of complications arising out of pregnancy/delivery or to meet the family obligations post delivery. The condition of the lady may be just and justified for extended leave even if unpaid. Does your company offer Parental Leave, Child Care Leave and permit it immediately after Maternity Leave? Does your company allow combining maternity leave with any other leave of any kind?

Female anatomy is complex and a lady risks her life while giving birth to a child.

The effects on the health can be far reaching and in case of some ladies more time may be required to return to normalcy. A small mistake can adversely affect the health of the female may even render her unable to reproduce later.

While employer may insist that the lady may resume duties at the earliest the lady may feel that her body does not allow it to join now and she needs some more time.

It is suggested that the temptation for termination may be avoided and employee may be rather cajoled to return back to work first even if she works from home. Reach an agreement. Avoid your decision being termed discriminatory and bad.

HR/personnel/employee relations must have capability and credentials to handle such situations and to avoid implications which can be penultimate for employee and employer.

These disciplines have their duties and responsibilities cut out for them, including: “Preparing for Employee Termination.” And avoid “Wrongful Termination” also “Adjustment for Employees who are Pregnant, on maternity leave, on leave after delivery.”

 

Do you have a reason for Termination which is unrelated to leave?

(This may not be an easy task.)

Do you have a reason that employee is feigning sickness?

Do you have a reason that the employee is making false claims of family obligations?

Have you sufficiently adhered to principle of natural justice?

Would you feel that it shall be appropriate to take some gentle but conclusive steps before issuing order ofd termination e.g. to offer to the lady that company would support her admission in a specialized hospital for specialized treatment and let the specialist in the hospital declare her fit to resume duties???

 

Assuming that the employee in question is deliberately avoiding returning to work despite having been granted 4 month’s leave the employer can always fill for her as one fine day she may return and stay or return to leave or she may decide not to return.

Even if the decision in such a matter is to be taken by say Chairman of the company these disciplines should help the authority so that matter is not looked at with blurred vision.

 

 

United Nations adopted the "Convention on the Elimination of all

Forms of Discrimination against Women". Article 11 of the Convention provides as under:

"Article 11

1. States/parties shall take all appropriate measures to eliminate discrimination against women in the field of

employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) the

right to work as an inalienable right of all human beings:

 

(f) the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

(c) to encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life

These are cited by and referred to in judgments by courts of Law e.g.

 Madras High Court, Tmt.K.Geetha vs The Director Of Municipal ... on 19 December, 2011, DATED: 19.12.2011

 

And

 

Madras High Court, L.Kannaki vs The Secretary To Government on 20 December, 2011

DATED: 20.12.2011

 

There might be other court judgments covering finer points as mentioned in your post as well.

Kindly proceed as deemed fit at your end.


Attached File : 180175333 maternity leave enhanced to 180 days fin e 39664 2012.pdf downloaded: 215 times

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