Monday, December 30, 2013

Termination of employee when got ill at workplace- solution, how to fight

The case as reported in the public domain
I was an employee of M/s XXX organisation, Employee ID XXXX, wish to bring to your kind notice that I had a Paralytic Brain stroke on February 03, 2012 while I was working in office. And I was admitted in hospital by my colleagues.

I was advised to take leave for 3 months by the concerned doctor and I was under treatment. I was under sick leave during the months of November, December, and January. After which I was asked to resume my duties by my reporting head.
I started working from home since February 1, 2013, during March, April, and May 2013, I was reporting to XXX Office every Monday and was working from home for the rest of the week days.
During this period my Supervisor, started pressurising me to report to office every day. I had taken permission from the Second supervisor to report for two days in a week to office that is every Monday and Thursday for the months of June and July 2013, because only on these days there was more workload when compared to rest of the days of the week.

I was not completely recovered, that is, I was able to work with only my left hand.
Medical Certificates were submitted to HR department from time to time.

For the month of August 2013, my Supervisor asked me to go on Loss Of Pay (LOP) or I will be placed under PIP Plan. Even then I took it as a challenge and I started working because I was under Medical treatment and physiotherapy and for this I was in need of money.

In mid-August my SUPERVISOR arranged for a meeting with the HR representative, and both of them asked me to tender my resignation and was given one day time to resign otherwise I will be terminated by the end of August. I sent an email to the HR representative asking to convey the same message in an email, for this HR representative replied asking for my Medical report and also the time frame for complete recovery of my health.

I had submitted the Medical Report as requested.

On August 31, 2013 my SUPERVISOR took my Laptop and Locker key and asked me to wait for
half an hour and then later he called me on my mobile phone asking me to come to office on September 3, 2012 for a discussion.

On September 3, 2012, I reported to office for discussion, my ID card was taken back and I was told that I was still under Probation and I will get my Full and Final settlement and letter by post to my Residence.

Till date I have not received any communication whatsoever from XXX. On October 30, 2013, I received a letter dated October 25, 2013, from my organisation office stating that I was under unauthorised absence and I was asked to report to my designated Manager within 5 days, hence I reported to XXX office on October 31, 2013, but I was made to wait for three hours by the Security Personnel after which the SUPERVISOR came and told that you are terminated and this letter has come from organisation’s head office and he refused to see the letter sent by your office nor did he take my explanation letter, whereas I verbally informed him that I will be happy to join back work since he has not taken the letter.

If I was on unauthorised leave I would have had my Laptop, Locker key and ID card under my possession, which I don't have.

I was force to resign by management by stopping my pay for six months and pulling my laptop & ID card.

I wish I will get justice and compensation and an alternative job in which I am comfortable in xyz organisation.

I was with XYZ organization as a software developer in executive grade/ I got brain stroke on the floor of XYZ ORGANISATION but instead of supporting me, the management forcefully took my resignation by stopping my pay for six months, snatch my laptop & ID card. Can you tell me how to take my case forward to get my compensation and my job back .I am still on treatment and right side of my body got effect paralysis due stroke.


Subject under the purview of:
1.       Industrial Dispute Act
2.       Workmen’s Compensation Act (renamed as Employee’s Compensation Act)
If not applicable, then the matter may go for Indian Contract Act and under the law of Torts

I have made few changes in the original content including change in the date, name of the complainant and the name of the organization.

My response is as follows:
First of all,
it will be too early to comment on this post by any members here as much little said about the incident.
Second, you are saying you suffered from the brain stroke.
Was it caused anything related to your work?
You have also not stated in what capacity and which position you were employed.

The first suggestion, you should approach to your Human Resources Department rather than disclosing name of the organisation publicly. It may not create win-win situation for you.

If it does not help and if you are not in a managerial/ supervisory capacity then under the Industrial Dispute Act, you may file a complaint to the district/ local labour court for compensation under The Employee's compensation Act
However, you must prove that the injury / disablement is related to your work / occupation only.

You may read it as follows:
Workmen's Compensation Act, 1923     

The Workmen’s Compensation Act, 1923 provides for payment of compensation to workmen and their dependants in case of injury and accident (including certain occupational disease) arising out of and in the course of employment and resulting in disablement or death. The Act applies to railway servants and persons employed in any such capacity as is specified in Schedule II of the Act. The schedule II includes persons employed in factories, mines, plantations, mechanically propelled vehicles, construction works and certain other hazardous occupations.
The amount of compensation to be paid depends on the nature of the injury and the average monthly wages and age of workmen. The minimum and maximum rates of compensation payable for death (in such cases it is paid to the dependents of workmen) and for disability have been fixed and is subject to revision from time to time.

A Social Security Division has been set up under the Ministry of Labour and Employment , which deals with framing of social security policy for the workers and implementation of the various social security schemes. It is also responsible for enforcing this Act. The Act is administered by the State Governments through Commissioners for Workmen's Compensation.

The main provisions of the Act are:-

An employer is liable to pay compensation:- (i) if personal injury is caused to a workman by accident arising out of and in the course of his employment; (ii) if a workman employed in any employment contracts any disease, specified in the Act as an occupational disease peculiar to that employment.


However, the employer is not liable to pay compensation in the following cases:-

If the injury does not result in the total or partial disablement of the workman for a period exceeding three days.


If the injury, not resulting in death or permanent total disablement, is caused by an accident which is directly attributable to:- (i) the workman having been at the time of the accident under the influence of drink or drugs; or (ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen; or (iii) the willful removal or disregard by the workman of any safety guard or other device which has been provided for the purpose of securing safety of workmen.



The State Government may, by notification in the Official Gazette, appoint any person to be a Commissioner for Workmen's Compensation for such area as may be specified in the notification. Any Commissioner may, for the purpose of deciding any matter referred to him for decision under this Act, choose one or more persons possessing special knowledge of any matter relevant to the matter under inquiry to assist him in holding the inquiry.


Compensation shall be paid as soon as it falls due. In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be.


If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by a Commissioner. No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.


The State Government may, by notification in the Official Gazette, direct that every person employing workmen, or that any specified class of such persons, shall send at such time and in such form and to such authority, as may be specified in the notification, a correct return specifying the number of injuries in respect of which compensation has been paid by the employer during the previous year and the amount of such compensation together with such other particulars as to the compensation as the State Government may direct.


Whoever, fails to maintain a notice-book which he is required to maintain; or fails to send to the Commissioner a statement which he is required to send; or fails to send a report which he is required to send; or fails to make a return which he is required to make, shall be punishable with fine.

The schedule II of the Employees' Compensation Act/ Workmen's Compensation Act is as follows:
SCHEDULE II
SCHEDULE II

[See section 2(1)(n)]





LIST OF PERSONS WHO SUBJECT TO THE PROVISIONS OF SECTION 2(1)(n), ARE INCLUDED IN THE DEFINITION OF WORKMEN



The following persons are workmen within the meaning of section 2(1)(n) and subject to the provisions of that section, that is to say, any person who is -

(i) employed, otherwise than in a clerical capacity or on a railway, in connection with the operation, repair or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity or in connection with the loading or unloading of any such vehicle; or

(ii) employed, otherwise than in a clerical capacity, in any premises wherein or within the precincts whereof a manufacturing process as defined in clause (k) of section 2 of the Factories Act, 1948 (63 of 1948), is being carried on, or in any kind of work whatsoever incidental to or connected with any such manufacturing process or with the article made, whether or not employment in any such work is within such premises or precincts and steam, water or other mechanical power or electrical power is used; or

(iii) employed for the purpose of making, altering, repairing, ornamenting, finishing or otherwise adapting for use, transport or sale of any article or part of an article in any premises wherein or within the precincts whereof twenty or more persons are so employed

Explanation : For the purposes of this clause, persons employed outside such premises or precincts but in any work incidental to, or connected with, the work relating to making, altering, repairing, ornamenting, finishing or otherwise adapting for use, transport or sale of any articles or part of an article shall be deemed to be employed within such premises or precincts; or

(iv) employed in the manufacture or handling of explosives in connection with the employer's trade or business; or

(v) employed, in any mine as defined in clause (j) of section 2 of the Mines Act, 1952 (35 of 1952), in any minion operation or in any kind of work, other than clerical work incidental to or connected with any mining operation or with the mineral obtained, or in any kind of work whatsoever below ground; or lwa-173

(vi) employed as the master or as a seaman of - (a) any ship which is propelled wholly or in part by steam or other mechanical power or by electricity or which is towed or intended to be towed by a ship so propelled; or

(b) any ship not included in sub-clause (a), of twenty-five tons net tonnage or over; or

(c) any sea-going ship not included in sub-clause (a) or sub-clause (b) provided with sufficient area for navigation under sails alone; or

(vii) employed for the purpose of - (a) loading, unloading, fuelling, constructing, repairing, demolishing, cleaning or painting any ship of which he is not the master or a member of the crew, or handling or transport within the limits of any port subject to the Ports Act, 1908 (15 of 1908)" or the Major Port Trusts Act, 1963 (38 of 1963), of goods which have been discharged from or are to be loaded into any vessel; or

(b) warping a ship through the lock; or

(c) mooring and unmooring ships at harbor wall berths or in pier; or

(d) removing or replacing dry dock caissons when vessels are entering or leaving dry docks; or

(e) the docking or undocking or any vessel during an emergency; or

(f) preparing splicing coir springs and check wires, painting depth marks on lock-sides, removing or replacing fenders whenever necessary, landing of gangways, maintaining life-buoys up to standard or any other maintenance work of a like nature; or

(g) any work on jolly-boats for bringing a ship's line to the wharf; or

(viii) employed in the construction, maintenance, repair or demolition of - (a) any building which is designed to be or is or has been more than one story in height above the ground or twelve feet or more from the ground level to the apex of the roof; or

(b) any dam or embankment which is twelve feet or more in height from its lowest to its highest point; or

(c) any road, bridge, tunnel or canal; or

(d) any wharf, quay, sea-wall or other marine work including any moorings of ships; or

(ix) employed in setting up, maintaining, repairing or taking down any telegraph or telephone line or post or any overhead electric line or cable or post or standard or fittings and fixtures for the same; or

(x) employed, otherwise than in a clerical capacity, in the construction, working, repair or demolition of any aerial ropeway, canal, pipeline, or sewer; or

(xi) employed in the service of any fire brigade; or

(xii) employed upon a railway as defined in clause (31) of section 2 and sub-section (1) of section 197 of the Railways Act, 1989 (24 of 1989), either directly or through a sub-contractor, by a person fulfilling a contract with the railway administration; or lwa-175

(xiii) employed as an inspector, mail guard, sorter or van peon in the Railway Mail Service, or as a telegraphist or as a postal or railway signaller or employed in any occupation ordinarily involving outdoor work in the Indian Posts and Telegraphs Department; or

(xiv) employed, otherwise than in a clerical capacity, in connection with operations for winning natural petroleum or natural gas; or

(xv) employed in any occupation involving blasting operations; or

(xvi) employed in the making of any excavation in which on any one day of the preceding twelve months more than twenty-five persons have been employed or explosives have been used, or whose depth from its highest to its lowest point exceeds twelve feet; or

(xvii) employed in the operation of any ferry boat capable of carrying more than ten persons; or

(xviii) employed, otherwise than in a clerical capacity, on any estate which is maintained for the purpose of growing cardamom cinchona, coffee, rubber or tea, and on which on any one day in the preceding twelve months twenty-five or more persons have been so employed; or

(xix) employed, otherwise than in a clerical capacity, in the generating, transforming, transmitting or distribution of electrical energy or in generation or supply of gas; or

(xx) employed in a lighthouse as defined in clause (d) of section 2 of the Indian Lighthouse Act, 1927 (17 of 1927); or

(xxi) employed in producing cinematograph pictures intended for public exhibition or in exhibiting such pictures; or

(xxii) employed in the training, keeping or working of elephants or wild animals; or

(xxiii) employed in the tapping of palm-trees or the felling or logging of trees, or the transport of timber by inland waters, or the control or extinguishing of forest fires; or

(xxiv) employed in operations for the catching or hunting of elephants or other wild animals; or

(xxv) employed as a driver; or

(xxvi) employed in the handling or transport of goods in, or within the precincts of, - (a) any warehouse or other place in which goods are stored, and in which on any one day of the preceding twelve months ten or more persons have been so employed, or

(b) any market in which on any one day of the preceding twelve months fifty or more persons have been so employed; or

(xxvii) employed in any occupation involving the handling and manipulation of radium or X-rays apparatus, or contact with radio-active substances; or

(xxviii) employed in or in connection with the construction, erection, dismantling, operation or maintenance of an aircraft as defined in section 2 of the Indian Aircraft Act, 1934 (22 of 1934); or

(xxix) employed in horticultural operations, forestry, bee-keeping or farming by tractors or other contrivances driven by steam or other mechanical power or by electricity; or

(xxx) employed, otherwise than in a clerical capacity, in the construction, working, repair or maintenance of a tube-well; or

(xxxi) employed in the maintenance, repair or renewal of electric fittings in any building; or lwa-191

(xxxii) employed in a circus.

(xxxiii) employed as watchman in any factory or establishment; or

(xxxiv) employed in any operation in the sea for catching fish; or

(xxxv) employed in any employment which requires handling of snakes for the purpose of extraction of venom or for the purpose of looking after snakes or handling any other poisonous animal or insect; or

(xxxvi) employed in handling animals like horses, mules and bulls; or

(xxxvii) employed for the purpose of loading or unloading any mechanically propelled vehicle or in the handling or transport of goods which have been loaded in such vehicles; or

(xxxviii) employed in cleaning of sewer lines or septic tanks within the limits of a local authority; or

(xxxix) employed on surveys and investigation, exploration or gauge or discharge observation of rivers including drilling operations, hydrological observations and flood forecasting activities ground, water surveys and exploration; or

(xl) employed in cleaning of jungles or reclaiming land or ponds in which on any one day of the preceding twelve months more than twenty-five persons have been employed; or

(xli) employed in cultivation of land or rearing and maintenance of live-stock or forest operations or fishing in which on any one day of the preceding twelve months more than twenty-five persons have been employed; or

(xlii) employed in installation, maintenance or repair of pumping equipment used for lifting of water from wells, tube wells, ponds, lakes, streams and the like; or

(xliii) employed in the construction, boring or deepening of an open well or dug well, bore well, bore-cum-dug well, filter-point and the like; or

(xliv) employed in spraying and dusting of insecticides or pesticides in agricultural operations or plantations; or

(xlv) employed in mechanised harvesting and threshing operations; or

(xlvi) employed in working or repair or maintenance of bulldozers, tractors, power tillers and the like; or

(xlvii) employed as artist for drawing pictures on advertisement boards at a height of 3.66 meters or more from the ground level; or

(xlviii) employed in any newspaper establishment as defined in the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (45 of 1955) and engaged in outdoor work. employed as divers for work under water.

Explanation : In this Schedule, "the preceding twelve months", relates in any particular case to the twelve months ending with the day on which the accident in such case occurred.

_________________
If you do not fall under the above definition, you may file a case in the Civil court (as the matter does not fall under purview of the labour court).

I hope this information is useful.

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