DURING Covid, many organisations have laid off workers because of poor business or factory closure. Those retained have seen their salaries and benefits reduced. In such exceptional circumstances, the employers will justify their action as a fight for survival. However, under normal conditions the law which restrains them from exercising their discretion in such matters comes into force.
People perceive the term ‘hire and fire’ differently. For instance, they may think that (a) there is no job security in employment as employees can be terminated instantly; (b) in normal situations, the employer must have a reason to sack an employee. However, in cases of ‘hire and fire’, an employee’s services may be terminated simply because the employer does not need him anymore. There is no livelihood-related obligation on the employer towards the employee. (Most local employers’ favour this approach strongly and tend to follow it by flouting the law); (c) If a new worker is inefficient or his performance not up to the mark, his services may be terminated during the probationary period.
In case an employer indulges in firing an employee without justification, it causes bitter feelings among other workers. One cannot expect optimum output from demoralised employees. Progressive employers aspire to long-term ties with their employees and avoid unfair practices. They are particular about recruitment and assess the candidate from all aspects relevant to the job. If the new worker is self-motivated and driven, no employer would like to part with his services.
Enlightened employers do not resort to hiring practices that only take into account an individual’s skills, experience and educational qualifications. The objective is to hire creative and rational minds, and an inclusive hiring approach is necessary. The candidate is required to interact with not just the team for which he is to work but cross-functional teams too. This process allows the candidate to have a good idea of the company’s culture and environment and facilitates his quick absorption when offered employment.
Employers often flout the law in sacking workers.
When an inclusive hiring approach is adopted, the employer has fewer retention issues and individuals are motivated for a long period.
In industrial and commercial establishments, the organisational hierarchy is divided between management and non-management employees. Both have their own terms and conditions of employment, which are set by the employer in accordance with his paying capacity and the level of emoluments in comparable industries. As the salary and perquisites of management employees are usually attractive, the employer expects a high standard of skills and performance from them. If they do not deliver, they can lose their job, without any obligation on the part of employer to disclose the cause of his action.
The non-management staff are hired on the employer’s discretion. But once employed, they are governed by labour laws and the employer cannot terminate their services without following the legal procedure. Most employers are not aware that they do not have unrestricted right to sack non-management employees, also called workmen, without any cause.
There is a procedure of progressive discipline prescribed in Standing Order 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. There is a list of misdemeanours such as disregarding company rules or performance issues, for which a workman may be counselled and warned for the first time. Formal disciplinary action may only be initiated if the workman repeats his actions despite being issued written warnings.
The provisions of Standing Order 15 are based on the universal principle that no one should be condemned unheard. The workman accused of misconduct is provided the opportunity to explain his conduct in writing. If the employer is not satisfied with the workman’s explanation, he is asked to attend a domestic inquiry to be conducted by an impartial person.
The safeguards provided to a workman require that the inquiry be fair and transparent. If the workman desires to nominate, for assistance in the inquiry, any workman employed in the establishment, it must be allowed. During the inquiry, the management has to support its allegations both through the oral evidence of witnesses and documentary evidence if required. All proceedings of the inquiry must be held in the presence of the workman, who is given the opportunity to cross-examine management witnesses, record his own statement and produce his defence witnesses.
In view of the foregoing facts, there is no concept of ‘hire and fire’ as understood by employers in general. If they still contravene the law, the labour court has the power to reinstate the aggrieved workman with the payment of back wages.
The writer is a consultant in employee relations at the Aga Khan University and also teaches labour welfare laws at IBA.
Published in Dawn, September 28th, 2021