Answer to Question #156694 in Management for Dina

Question #156694

CASE STUDY 1 (15 marks)


Mr. A is a habitual absentee and remains absent without any intimation and proper sanction of leave. His absentee records show that he remained absent from his duties without proper sanction of leave for 96 days during the last one year. He was advised number of times to improve his attendance but despite verbal advises and assurance given to him, he has not shown any improvement in his attendance. Habitual absence on the part of an employee is major misconduct under Standing orders no. 22(iv) of the Company. 

1. As an IR officer, what should you do to Mr. A?

2. Draft a charge sheet to be issued to Mr. A

3. Based on your reading, do you think the company can terminate Mr. A because of his habitual absence?


CASE STUDY 2 (15 marks)


Mr. B has appointed as Machine Operator on probation for a period of 6 months. After completion of 6 month, the management took a test in which Mr. B could not qualify and his probation period was extended for another 6 months. Again a test was organized but again the employee could not qualify. Hence his services came to an end on the basis of conditions stipulated in appointment letter. Employee challenged the termination. 


TERMS OF APPOINTMENT: 

1. You are being appointed as Machine operator trainee for a period of 6 months provided that employer may in his discretion extend the period of training for giving his services as trainee for such further period not exceeding one year. 

2. The employer may terminate this agreement at any time without prior notice. 

3. The candidate shall diligently pursue the course of his training and abide the rules for time being in force relating to the conduct of training and pass the described test. 

Based on the case, do you think the Mr B has a right to challenge his termination? Please justify your answer.


1
Expert's answer
2021-01-20T05:46:20-0500

CASE STUDY 1: The Case of Mr. A

Question 1: Requisite Action on Mr. A

           In this case, the facts are that Mr. A has a chronic absenteeism problem, culminating in a total of 96 days of absence without official leave. Despite numerous verbal warnings and assurances, there has been no improvement, which could constitute a breach of Standing Orders No. 22 (iv) of the employees’ code of conduct. As an industrial relations officer, my duties entail conflict management, representation, analysis, and communication, to mention the least. Resolving the case would therefore require me to issue a show-cause letter to Mr. A, with a provision for him to provide a credible explanation if he genuinely believes that factors beyond his control occasioned the absenteeism. If his explanation does not warrant exoneration, it would be a time to serve him with a written warning letter, with the condition that if the behavior is not rectified, much grimmer consequences will follow, according to the company policy. However, if the explanation is credible, the next letter to him would be a formal communication advising him to seek a company-based counselor’s indulgence, copied to the H.R. department.


Question 2: Draft Charge Sheet

INTERNAL MEMO- CHARGE SHEET

Date……………


To MR. A. B. Another, c/o John Doe (Departmental Head)

Cc. The Director Human Resource Division

XYZ Company Limited

Dear Mr. A

We have continuously been informed that you have deliberately failed to report to work without official leave absence for a total of 96 days in the course of last year. It would help if you were reminded that this error of omission constitutes a serious breach of your commitment to the employer. It is a major misconduct under Section 22 subsection (iv) of the standing orders you signed and swore to uphold. The management has provided your attendance records to prove the misconduct.

Consequently, this office under the law should take drastic measures to curb your behavior by taking strict action against you. However, you are expected to show-cause through writing why such action should be taken against you within three business days, starting today. In the event of failure to do as instructed, it will be determined that you deliberately neglected your duties for the said period, and requisite action will be taken.

Please note that the charges leveled against you could lead to summary dismissal.

Please acknowledge that you have received this letter by reaching the undersigned before the close of business today, the 20th of January 2021.

 

Authorized Signatory

I.R. Officer


Question 3: Decision on Termination

           The decision to terminate Mr. A or not will entirely depend on the company policy. However, the standard procedure is to issue three written warnings to the offender. As such, the company under this assumption cannot legally terminate or dismiss him. It may have been an oversight that in all the other instances of his absenteeism, there were no written show-cause and warning letter exchanges, and the process has just begun. Terminating him after the first warning letter (Assuming that it will be issued) would be a legal pitfall. On the other hand, the observer is not aware of whether Mr. A has been going through major challenges and needs help. From his explanation, his welfare could be at risk, requiring an alternative to termination. If the explanation is not satisfactory, the first warning should be served to him, fast and hot, awaiting another two for his termination.


Case Study 2: The case of Mr. B

           By law, it is Mr. B’s right to challenge the employer’s decision. However, in the judicial application, the legal challenge is counterproductive for him, and there is no chance that he might win. The arguments raised in court by his attorney could entitle him to compensation, but the judge will eventually uphold the employer’s decision since they also have rights. The employer’s attorney can make the following claims to terminate the suit.

a)     The employer had categorically stipulated that they may terminate the agreement without prior notice. The attorney will simply need to have Mr. B acknowledge that at the time of the agreement, he was aware of this fact. The attorney will get a ruling, the case will be closed, and Mr. B will lose.

b)     Mr. B was expected to train for six months, after which he would be competent enough. At the expiry of this period, he was not. Up to that point, the attorney could press for a ruling since it was the discretion of the employer to extend his probation period or not. Similarly, the ruling will be in favor of the employer.

c)     In the unlikely scenario that Mr. B’s attorney claims that the training environment was not enabling enough, the employer’s attorney could cite the third clause in the appointment terms. It mandates the employee to “diligently pursue the course of training….. and pass the test.” The outcome was that Mr. B did not pass the test on not one but two occasions when he had the chance. Again the judge should rule that Mr. B failed in his obligation, and did not perform as expected, which was part of the contractual terms. The employer would win again.

In conclusion, although Mr. B has the right to sue the employer, the case has no sufficient legal backing, and the suit would amount to a waste of resources.


 



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