Maternity benefit act
Guest
(Querist) 11 January 2012
This query is : Resolved
Dear Experts,
Needed clarifications on comments posted by some of the eminent experts in relation to an earlier query. The case refers to a pregnant employee who is seeking LWP from month 1 of pregnancy to month 8 and thereafter demands maternity benefits, i have the folowing details to submit
(a)Employee proceeded on LWP in Nov 2011 after producing a certificate of Pregnancy and related illness, issued at India
(b) travelled to Canada thereafter and has sent a certificate signed by some canadian Indian Doctor which declares the pregnancy to be high risk and asks her not to travel. High risk claim is based on the 2010 miscarriage
my questions are
(a) if miscarriage has taken place in 2010 then how was travel undertaken in Nov/Dec 2011. isnt the claim of high risk contradictory considering the travel undertaken?
(b) as per my understanding the MB act doesnt prohibit dismissal. it only says that if dismissed, the company is liable to pay benefits as applicable under the law. is my understanding correct?
(c) what if the company doesnt have any work for her now. cant we pay regular dismissal benefits and promise to pay maternity benefits and ask the employee to leave? mere pregnancy shall not be a job guarantee and the employer shall have the right to ask the employee to leave as per the terms and conditions of offer letter and the guidelines of MB act.
Please do not consider my queries as insensitive or anti employee. I am just trying to understand the laws better.
Please help with suggestions
regards,
Sudhir Kumar, Advocate
(Expert) 11 January 2012
A very negative minded query.
Your questions are replied as under :-
a) if miscarriage has taken place in 2010 then how was travel undertaken in Nov/Dec 2011. isn’t the claim of high risk contradictory considering the travel undertaken?
Ans : Please indicate a clear rule position that a woman who once had miscarriage cannot travel by air for all times to come.
Is your company willing to bear the expenses of re-medical of the employee in Canada.
(b) as per my understanding the MB act doesn’t prohibit dismissal. it only says that if dismissed, the company is liable to pay benefits as applicable under the law. is my understanding correct?
Ans The employee is asking for eight month without pay leave and you want to dismiss. Whether this is a charge?
MB Act does not allow dismissal of a pregnant employee just because doctor has advised her to be on the rest for the entire pregnancy.
(c) what if the company doesn’t have any work for her now. cant we pay regular dismissal benefits and promise to pay maternity benefits and ask the employee to leave? mere pregnancy shall not be a job guarantee and the employer shall have the right to ask the employee to leave as per the terms and conditions of offer letter and the guidelines of MB act.
Ans It the company does not have any work for her (may be not for you tomorrow) the remedy is retrenchment and not dismissal.
If you are bent upon dismissing the employee then why do you want to pay maternity benefit.
You say mere pregrannty is no guarantee of job but how does pregnancy become guarantee for loss of job (even if the doctor advises rest for the entire pregnancy and the employee is willing to forego the salary)
There is no point of treating query otherwise because your query is insensitive and anti-employee. You are lucky not to be in Govt service with such ideas otherwise you would have been jobless after head of your department having faced NCW.
Guest
(Querist) 11 January 2012
i think i have not worded it correctly. Please ignore
Deepak Nair
(Expert) 11 January 2012
Dear Mr.Sudhir,
This is based on a query which he posted earlier with respect to the same subject.
In the case, if i remember correct, the employee in question has taken leave to go to canada and she is searching for a leave in canada. and once she get the said job in canada, she will resign.
Now the querist wanted to ask about the remedy available for the employer for misuse of pregnancy by the employees.
I too am looking for an answer to the same. I had responded to his earlier query, but i was wrong on that occassion.
Shonee Kapoor
(Expert) 11 January 2012
Ignored.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Sudhir Kumar, Advocate
(Expert) 11 January 2012
Dear Mr Deepak Nair,
Very true the employee may be searching job in Canada. Nothing uncommon. May have even got one. But material given in this instant query does not indicate this. They cannot challange the medical as expenses will be too high (as per canadian rates) may be higher than even the wages for one year in India. I have not seen his earlier query. I feel that the company is caught in the web and difficulties will multiply if they dismiss the employee (not rentrenchment as applicable if ther eis no work) on such situation they may not be able to jusfity if the employees intends to join after leave without pay and maternity leave. It will not be a happy situation if they land in renstatement with backwages.
Raj Kumar Makkad
(Expert) 11 January 2012
I fully endorse the wiseful views of Sudhir.
Deepak Nair
(Expert) 12 January 2012
Dear Mr.Sudhir,
Thanks a lot for this clarification.
prabhakar singh
(Expert) 12 January 2012
Yes!Mr.Sudhir Kumar has taken a right charge over the query which needs no addition at all.
