Dual employment.
Leena Casper
(Querist) 19 December 2013
This query is : Resolved
Dear members We are a pharma company with Sales employees all across India. We know for sure that some of them are doing other small time or proper private office jobs with their close relatives while they are still on our employment. No one is ready to testify against them. How can we take action against them and terminate them.
They are reporting regularly through on line reporting. Will video graphic evidence be sufficient evidence to terminate them. If yes what are the things we need to ensure or take care of while generating such evidence.
Kumar Doab
(Expert) 19 December 2013
Pharma companies have been facing this issue.
The sales employees or MR’s are highly unionized in each state and are affiliated to Trade Union.
For this sector ‘Sales Promotion Act’ was enacted.
To overcome the problem cited on line reporting was introduced.
Still the unions create stir in states and even pan India.
If you have irrefutable evidence then follow the due process of show cause notice, domestic inquiry, and later effect termination.
If the evidence is irrefutable the union may also relent.
IN case the evidence is strong then the merits of it in court can be proved.
It is also possible that delinquent employee may on his own offer to resign.
Rajendra K Goyal
(Expert) 19 December 2013
If the MR's are giving good results, the situation can be acceptable. On confirmation of dual employment of MR's and also poor performance the steps become necessary and the avenue can be poor performance.
Guest
(Expert) 19 December 2013
Are the other small time or private office jobs are paid jobs for them and of the similar nature as that for which they have been employed by your company?
Isaac Gabriel
(Expert) 20 December 2013
You cannot take isolated action as it may invite opposition by the unionists.Ask everybody to file an affidavit to the effect that they are not employed anywhere and receiving salary,be it psrtime or piece ratefirst.Then procced against those who vilate the sworn affidavits.Discreet enquiry could be made with the private agencies for the purpose of verifying the fact.
Kumar Doab
(Expert) 20 December 2013
It is usually stated in appointment letter issued by company that employee can not engage in gainful employment elsewhere.
The MR’s, even union leaders and for matter even Managers are known to support business run by relatives/in the name of relatives.
Since they are not involved in business on papers it is difficult to prove.
Even if it is proved the unions intervene and then matter gets aggravated. The Managers are prevented to work with MR’s.
NON cooperation starts and sales, market share go down.
Many companies declared to not to go by the norms set by unions like prior notice and its registration with Unions, Limited 5 days work for 1st line manager and total 5 days of joint work with managers out of which 2 days for 2nd line ,1 day for higher management, prior notice for meetings, and even to the extent that prior notice for interviews to be conducted.................etc.........
M/s Sun Pharma has been a single exception. But it is also known what adversities it had to face.
Other big companies like M/s FDC, M/s Torrent also tried it but did not succeed.
If the evidence is irrefutable even if it is gathered thru private agencies it shall matter. This is precieved as an effective remedy.
It is also known that in cases where the evidence is irrefutable unions relent.
If the company’s representative’s negotiating the matter are competent and experts in this skill they are known to succeed.
This send strong message amongst the company and helps to discourage others.
The delinquent employee prefers to resign.
We have seen it happening in many cases.
Other view is that the genesis and roots of such practice lies in insecurity, low wages, malpractices by the companies that gave way to creation of unions and high handed practices by unions.
It is not a secret that pharma companies also violate labor laws.
ajay sethi
(Expert) 20 December 2013
agreee with experts . dont take any action unless you have evidence against the employees
Leena Casper
(Querist) 20 December 2013
Thank you so much for your invaluable inputs. You have provided good insights on this issue.
I seek further inputs:
So far most of the private agencies have agreed to generate irrefutable evidence but rejected to testify in court in case of a legal dispute.
Is it inevitable that they testify?
Can you recommend any agencies who can be entrusted such responsibilities.
Guest
(Expert) 20 December 2013
You should not proceed without definite proof in hand. If you have any doubt about double employment of some employe(s), better hire some detective agency to investigate and bring sound proof of double employment.
You cannot compel any private agency to testify in the court in case of legal dispute, unless he has given you any specific information. Agency becomes liable to prove its information in the court of law, if hired for the purpose.
Raj Kumar Makkad
(Expert) 20 December 2013
Very well advised by experts hence no more to add.
Kumar Doab
(Expert) 22 December 2013
This is an interesting thread.
Learned experts and seniors have given valuable advice and have enriched this forum.
It shall be good if the agency agrees to testify.
Many of the agencies reject to testify fearing backlashes.
The lawyers and agencies that were engaged by companies in the same situation may agree.......................to generate evidence and testify.
Many of the pharma companies have HQ’s at Mumbai, Delhi, Hyderabad, Chennai, Bangalore, Ahmadabad.....................and your counterparts in those companies may also suggest...........................from their experience.
It shall be appropriate to show the evidence generated by agencies to your very own able lawyers and confirm whether this shall stand test of law or not.............................
Once it is firmed up that evidence is irrefutable let the HR/IR person try if they can effect separation by applying their skills...........................................................
After all they are employed in the company by virtue of their skills that they have flaunted in their vitae.
If they do not have skills then what else for they are present in the company and on rolls.
In such cases it is better to employ seasoned IR personnel (in addition to or in place of HR) for such matters.
In highly unionized trades litigation should be the last resort and that too when it is sure that evidence shall stand test of law and after all other avenues have been explored.
Put as many filters you can.
Your lawyers can advice you that there are cases when court has upheld termination and there are plenty of cases which employer loose.
Unions are also aware that companies backtrack and that is why they succeed when they shake and stir their agitations.
The news of one comrade loosing job due to private investigator shall travel at a lightening speed.
In one of such case (recent one) the senior MR of an old but medium size company was called to HO in WB and he was virtually convinced that he has strong proof against him and almost decided to resign but he was carrying orders of his state union not to resign on the spot and union members of WB union were waiting for him on the gate (one was with him).
The company closed the operation of the state and transferred all in state at distant locations.
NO one joined.
The company relented and transferred them again to nearby locations in the same state.
The comrades were still displaced.
Now the company has again transferred them back to their respective HQ with all back wages paid to them.
But the sales of the company have come down to virtually zero. Now the company has to build it from scratch and it shall take time.
The employees had in the meantime built their alternate source of funds.
In another case the company had received anonymous complaints by postcards, inlands and it deployed competent legal personnel in its office which employed labor consultants/service lawyers in state capitols on retainer ship basis and these lawyers further made arrangements with labor consultants/service lawyers at Dist. Level and amongst them were lawyers those who agreed and arranged irrefutable evidence and proved in court and separation was effected.
The unions relented and did not peruse further.
This was perceived as most effective strategy.
In such cases it was a policy decision to not to involve the line managers at 1st/2nd line as being at frontline they would suffer stress beyond tolerable limits and distraction. Beyond a limit the line managers at 1st/2nd line also contemplate separation as they have to work in same market and later unions may not allow them to function. Moreover beyond a limit the involvement may lead to seepage of information and strategy. Another factor is that if confrontation is protracted then company may not get skilled line managers.
The company must know how to keep its good flock together.
No one likes to join a company where at front line one has to face the brunt of situation.
The team that was put in place successfully isolated and separated the delinquent employees.
In another case there were violent confrontations and senior sales/medical reps were arrested and released on bail.
Later as part of negotiations company agreed to absorb all.
The owners/promoters shall closely watch their revenues, market share, brand ranking and may not have long lasting patience.
This is another factor that should be counted. If promoters decide to reproach the team that was put in place would be out.
This would be demand of unions and such demand as been met invariably in your trade.
Proceed only if you have proper infrastructure, the irrefutable evidence, skilled persons to handle such cases and resolve to fight the matter to its logical conclusion.
Leena Casper
(Querist) 23 December 2013
Thank you so much for your invaluable inputs. Can you please give me reference of these advocates who were hired in one of the examples that you have mentioned where the strategy turned out to be very effective?
Kumar Doab
(Expert) 23 December 2013
Regret NO.
You can leave your contact details and anyone that is interested can send a feeler to you.
