Concerning labour standards:
The incident took place on 30 October 2017 when the complainant, who is the team leader within his/her section was working in his/her line. He/she claims that he/she could hear the quality supervisor screaming at workers. He/she went and told the supervisor that it was not good to scream at workers. The supervisor asked the complainant not to interfere and to go back to work. The supervisor later went to complain to the HR manager, who in turn asked the complainant not to interfere in others' work.
In addition, the complainant shared that he/she had attended FWF's training programme on supervisory skills. Since the training experience, he/she has been trying to support workers when they require some help with any issue in the factory. He/she claims that management has warned him/her to not speak out on behalf of other workers.
Eight days after the above incident, the complainant received a call at work that his/her daughter was sick so he/she had to leave for the rest of the day. When he/she returned the next day, the factory manager asked him/her to stop working. When the complainant asked why, the factory manager first said that management wanted to replace old staff, so they would be giving him/her 2.5 months salary, which he/she could collect before leaving the premises. The complainant tried to tell them that he/she wanted to keep the job, but the management, along with the chauffeur, harassed the complainant and made him/her sign a letter even though he/she kept saying that the letter was in Kannada, which he/she could not read. The complainant later took a photo of the letter and sent the image to a local union. He/she claimed the letter stated that employment had been terminated due to the complainant using foul language with the co-worker.
The local union contacted factory management shortly afterward to arrange a meeting. To date, this has not been possible, so the union and the complainant got FWF involved in the process.
Shortly after the complaint was first registered, the complainant received a letter inviting him/her to a meeting of the Internal Complaints Committee (ICC). The letter stated that the quality supervisor with whom the complainant had argued on 30 October had submitted a claim concerning verbal sexual abuse. However, the letter was delivered two days after the meeting was set, which made it impossible for the complainant to attend.
FWF's country representative attended a FWF audit on 22 and 23 December 2017 to investigate the complaint. The audit had been scheduled prior to the complaint being received. The FWF worker interviewer (part of the audit team) was informed about the complaint before the start of the audit and so was able to collect the necessary information during off-site worker interviews.
During the audit, the country representative checked the minutes of the Internal Complaints Committee (ICC) meetings and spoke to ICC members regarding the complaint. Four members of ICC were from the same floor or line as the complainant. The ICC was established two months before the audit.
Furthermore, an external ICC proceedings expert was consulted regarding the way in which to conduct meetings and how to go about informing someone that they have been accused of misconduct and will be investigated.
The country representative also interviewed the complainant. During this interview, the complainant played some recordings that he/she had made on 8 December 2017 during a conversation with the management.
The quality supervisor was not available for an interview. However, the country representative did talk to one staff member who supported the supervisor's claim that the complainant verbally abused her. The country representative was not allowed to interview other workers who might have been present during the incident on-site.
The audit team met with twelve workers from the complainant's floor in their homes, one of whom was present during the argument in question on 30 October. Additionally, the country representative spoke to a worker (a former supervisor) from the same floor.
The complainant's termination letter and other communication documents were checked, including an interview with HR.
The country representative interviewed two FWF trainers, who had given the FWF supervisory programme training, about the conduct of the complainant during the training sessions.
Finally, on 26 December 2017, the country representative met with the owner of the factory to discuss the findings of the investigation. The factory manager joined part of this meeting.
01/02/2018 Conclusion of the investigation
Based on the investigation, FWF concludes the following points:
1) Shouting or using abusive language is not consistent with the complainant's normal behaviour. All workers, ICC members as well as the trainers confirmed that the complainant generally acted in a respectful and supportive manner towards other workers. Factory management did, however, state that the complainant had been equally harsh and abusive to workers as other team leaders in the factory, which was considered to be normal shop floor behaviour.
2) Workers confirmed that the quality supervisor regularly used abusive language while addressing workers.
3) FWF cannot conclude whether the complainant verbally harassed the quality supervisor (as stated in her complaint to the ICC). When asked specifically about the accusation, none of the workers witnessed the alleged verbal harassment because it took place behind a lift, located at a 15-foot distance from the workers. The factory manager, as well as two further witnesses, support the claim of the quality supervisor. The complaint report filed by the quality supervisor to the ICC stated that the incident took place on 6 November 2017; however, the according to the complainant, he/she did not have any contact with the quality supervisor following the argument on 30 October 2017.
4) The way in which the ICC has dealt with the quality supervisor's complaint, as well as the procedure of the termination of the complainant's contract, have not been managed according to Indian legislation.
a) The factory summoned the complainant to attend the ICC meeting but did not supply him/her with a copy of the complaint. Subsequently, he/she did not receive copies of the minutes of the meetings he/she attended.
b) In the ICC meeting minutes, there is no record of the complainant's statement that he/she did not make any derogatory remarks to the quality supervisor, despite the fact that he/she claims to have mentioned this several times during the meeting. Furthermore, the complainant claimed that his/her request that the ICC check with any workers on his/her line was not recorded.
c) The complainant received a termination of employment letter on 8 December 2017, which quoted 'bad behaviour towards factory staff' as the reason for termination. According to the procedure outlined in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, an accused cannot be terminated from service until the ICC's final report is submitted to the management, proving that the accused was found guilty. If the ICC decides on termination, no notice pay needs to be paid. This procedure was not followed. According to the termination letter the complainant was terminated for misconduct while the investigation was still on-going. During the meeting on 26 December 2017, the factory owner agreed to procedural mistakes regarding the termination. He stated that the complainant had been 'creating problems' during the past year and therefore the factory management was not willing to take him/her back, irrespective of the findings of the ICC. According to management, the complainant had not been achieving targets and when questioned he/she would always blame a worker in his/her line. When he/she was promoted to team leader he/she allegedly became more demanding (asking for a table, insisted on letter of promotion, exercising control over his/her line etc). No warning letters were on file to corroborate these claims.
e) The regular procedure for dismissing someone without misconduct requires the management to pay one month's notice, retrenchment payment (15 days per year of service) and all other dues accrued to him. This procedure had not been followed, as the complainant only received payment for the time worked. He was, however, offered one month's notice pay, which he did not accept.
f) Management stated that they support the quality supervisor in her claim and are not willing to re-hire the complainant. Both management and the complainant are prepared to settle the issue in labour court, if needed.
Based on the investigation FWF recommends the following remediation steps:
1) The ICC should investigate the complaint according to Indian legislation. While the investigation is on-going, the complainant may be suspended, but must receive a reduced salary. Should the ICC conclude that the complaint was valid and so severe that it warrants termination for misconduct, the complainant may be dismissed. If this is not the conclusion, the complainant may continue his employment or be dismissed following the appropriate procedure for dismissal without misconduct (one month notice, retrenchment payment [15 days per year of service], other dues as applicable).
2) Factory management must ensure that functioning grievance mechanisms as well as a legally compliant termination and dismissal procedure are in place and followed at all times.
3) Factory management must take steps to ensure a violence-free workplace. This also includes verbal abuse such as shouting or using derogatory terms. Management staff that have acted abusively in the past, such as the quality supervisor, need to be counselled on violence-free methods of managing workers. Repeated 'violent' behaviour should result in warning letters and in extreme cases to termination for misconduct. All workers and management should be trained on what constitutes violence and sexual harassment and what steps they can take to prevent and address this kind of behaviour. FWF can provide training on this issue through its Workplace Education Programme.
The local union informed FWF on 3 January 2018 that the complainant has filed a case of illegal termination in Labour Court. He/she (with the support of the union) is also challenging the proceedings of the ICC and has written a letter to the State Women's Commission, Labour Department-Commissioner, and State Women and Child Development Department. The copy of same letter has been sent to the factory.