Employees’ Trust Fund
Termination of employment can occur in any one of the following ways;
Termination by employer
Termination by operation of law
Termination by effluxion of time
Termination by employee
1. Termination by employer
1.1 Disciplinary Termination
1.1.1 What is Disciplinary Termination?
A workman who is aggrieved of termination of his services by the employer on disciplinary grounds or otherwise, can make an application to the Labour Tribunal for relief or redress under the Industrial Disputes Act.
1.1.2 Law governing Disciplinary Termination
Eventhough Termination of Employment of Workmen (Special Provisions) Act does not apply to disciplinary termination, it makes it mandatory for the employer to inform the workman in writing the reasons for such termination before the expiry of the second working day after such termination when such disciplinary terminations are made.
There is no statutory obstruction or bar to an employer in terminating the services of a workman on disciplinary grounds as long as he acts justifiably and without malice.
Unlike non-disciplinary termination, there is no specific statute governing disciplinary termination. Nevertheless Industrial Disputes Act contains provisions relating to disciplinary termination which enables a workman who is aggrieved of termination of his services by the employer on disciplinary grounds or otherwise, to make an application to the Labour Tribunal for relief or redress and a Labour Tribunal is given jurisdiction to make a just and equitable order after an inquiry.
1.2 Non-Disciplinary Termination
In the area of non-disciplinary termination, an employer is restricted from enjoying his rights of terminating a workman. This area of labour law is governed by Termination of Employment of Workmen (Special .Provisions) Act. This Act has done away with the employer’s inherent right to terminate a contract of service at will, on grounds other than disciplinary grounds. The core reason for the enactment of the said Act was the need felt at that era by the Government to exercise a greater degree of control over retrenchment and lay off of employees in the private sector on grounds of loss of business, lack of raw materials and so on.
In terms of the aforesaid Act a decision of an employer to terminate the services of a workman on non-disciplinary grounds has to be sanctioned by the Commissioner of Labour in writing.
Applicability of the Act extends to all,
- Wages Board employees,
- Shop and Office Employees
- Employees attached to a factory
2. Termination by operation Law
This means termination of a contract due to such factors as frustration of contract and impossibility of performance.
3.Termination by effluxion of time
Common example is the arrival of a mutually agreed date to terminate the contract.
4. Termination by the employee
This may arise due to a variety of circumstances such as
There are lot of issues relating to resignation such as whether a notice of resignation can be withdrawn before acceptance, whether a notice of resignation needs acceptance at all etc,. However it should be noted that resignation tendered under duress would amount to a dismissal or constructive termination by the employer.
This arise where a workman has been absent without leave or authority
4.3 Abandonment of employment
This consists of absence without leave and an intention not to return. However it must be noted that in this instance both elements must co-exist.
4.4 Repudiation of the contract by the employee