Hi all,
Trust that this message finds you all in good health.
I was working as a sales manager in a Bangalore based KPO. I went on a unplanned leave as I had a serious emergency. I kept my company well informed through my mails and calls about my whereabouts. But during this leave I got a call that company has decided to release me and after coming back I was told they have already initiated my resignation and forced me to resign formally. When I denied to do so I was told that I will be terminated.
I have submitted all documents supporting my reason of absense but the still forced me to resign. Can I take any legal steps against it.??
From India, Bangalore
Trust that this message finds you all in good health.
I was working as a sales manager in a Bangalore based KPO. I went on a unplanned leave as I had a serious emergency. I kept my company well informed through my mails and calls about my whereabouts. But during this leave I got a call that company has decided to release me and after coming back I was told they have already initiated my resignation and forced me to resign formally. When I denied to do so I was told that I will be terminated.
I have submitted all documents supporting my reason of absense but the still forced me to resign. Can I take any legal steps against it.??
From India, Bangalore
Dear Rahul,
Every employee should note that leave is privilege and not entitlement. From the organisation's side they should communicate this to all the employees through standing orders or employee handbook.
For whatever emergency you had, you could have spoken to the authorities concerned and obtained approval for your leave. Unplanned absence or rather unauthorised absence of employee throws operations of the company out of gear. How to handle this situation? Moreover for a person of the stature of manager, hardly this is expected.
Nevertheless, your company should have conducted domestic enquiry before your removal. It appears that they did not give you even show cause notice. This is bad as per the law. But then IT/ITES sector is better known for giving cold shoulder to the labour laws. Therefore, talking on this point is meaningless.
From the organisation's side I interpret their action from two angles. One is that they wanted to remove you anyway. Your unplanned (practically unauthorised) absence was excellent opportunity for them and they wielded the authority to hit you below the belt.
The second interpretation could be to send the signal to one and all. For the indiscipline of any kind, authority will come down heavily. Next time other employee(s) will think twice before committing act of indiscipline.
You have not written about your job. How many months or years did you work there, how your relations with superior authority were, what type of psyche your top most boss had etc. Many things depend on that also. Secondly, removal from job for unauthorised absence, is this norm in your company or you have been singled out? What is the level of your performance? Were you excellent performer?
I recommend you obtaining interview of the highest authority like VP, GM etc and ask for apology. This is better method of getting reinstated. If this happens well and good but then you will have less say in the organisation's matter. Reinstatement comes with clipped wings as well. Therefore, you need to be doubly cautious to avoid effrontery of any kind.
All the best!
Dinesh V Divekar
From India, Bangalore
7884Every employee should note that leave is privilege and not entitlement. From the organisation's side they should communicate this to all the employees through standing orders or employee handbook.
For whatever emergency you had, you could have spoken to the authorities concerned and obtained approval for your leave. Unplanned absence or rather unauthorised absence of employee throws operations of the company out of gear. How to handle this situation? Moreover for a person of the stature of manager, hardly this is expected.
Nevertheless, your company should have conducted domestic enquiry before your removal. It appears that they did not give you even show cause notice. This is bad as per the law. But then IT/ITES sector is better known for giving cold shoulder to the labour laws. Therefore, talking on this point is meaningless.
From the organisation's side I interpret their action from two angles. One is that they wanted to remove you anyway. Your unplanned (practically unauthorised) absence was excellent opportunity for them and they wielded the authority to hit you below the belt.
The second interpretation could be to send the signal to one and all. For the indiscipline of any kind, authority will come down heavily. Next time other employee(s) will think twice before committing act of indiscipline.
You have not written about your job. How many months or years did you work there, how your relations with superior authority were, what type of psyche your top most boss had etc. Many things depend on that also. Secondly, removal from job for unauthorised absence, is this norm in your company or you have been singled out? What is the level of your performance? Were you excellent performer?
I recommend you obtaining interview of the highest authority like VP, GM etc and ask for apology. This is better method of getting reinstated. If this happens well and good but then you will have less say in the organisation's matter. Reinstatement comes with clipped wings as well. Therefore, you need to be doubly cautious to avoid effrontery of any kind.
All the best!
Dinesh V Divekar
From India, Bangalore
There are some things unclear :
- have you resigned ?
- what is the meaning of the term "initiated resignation"
If they have forced you to resign, which means you have submitted the resignation, then there is little that you can do. You submitted resignation to avoid a termination in your employment history. That was your choice.
If you have not resigned, then you can approach top management as devakar suggested. However then you risk a termination. Few companies want to recruit an employee who has been terminated, specifically for unauthorised leave.
You can raise an industrial dispute after illegal termination. But you are a manager so I don't think you have the protection. Even if you did, it really won't help in the long term. At most you will get back wages and a hostile management which will find a reason to terminate you again.
From India, Mumbai
- have you resigned ?
- what is the meaning of the term "initiated resignation"
If they have forced you to resign, which means you have submitted the resignation, then there is little that you can do. You submitted resignation to avoid a termination in your employment history. That was your choice.
If you have not resigned, then you can approach top management as devakar suggested. However then you risk a termination. Few companies want to recruit an employee who has been terminated, specifically for unauthorised leave.
You can raise an industrial dispute after illegal termination. But you are a manager so I don't think you have the protection. Even if you did, it really won't help in the long term. At most you will get back wages and a hostile management which will find a reason to terminate you again.
From India, Mumbai
Dear Mr Saswata Banerjee,
My comments are with respect to the following paragraph of your post:
If they have forced you to resign, which means you have submitted the resignation, then there is little that you can do. You submitted resignation to avoid a termination in your employment history. That was your choice.
Comments: - To avoid the domestic enquiry, companies resorted to forcing the employees to put up resignation. However, when such employees approached the labour court and told that their resignation was taken forcibly, the courts have ruled that if the employee had conducted some misconduct, then what prevented them from conducting the domestic enquiry and prove the misconduct? Since the enquiry was not conducted, labour courts have treated the resignation as null and void. Their services were restored with back wages.
While I do not have the exact case number, I have discussed the above issue with lawyer who handles the labour cases.
For the case under discussion, poster's termination is illegal. But then court cases in India do not move even at snail's pace. This prevents the aggrieved employees to approach court and seek justice. Judicial tardiness benefits the employers and they take complete advantage of it.
The second challenge is psychology of Indians. We generally frown at the people who file suits against their employers. If the job applicant discloses that he has filed suit against his/her former employers chances of getting job are very dismal. In the erstwhile era, it was not rapist but the victim/survivor the of rape attracted the social stigma. Employers in India in general and HR in particular cherishes this psychology and look down upon job applicants who stand for their rights.
Thanks,
Dinesh Divekar
From India, Bangalore
My comments are with respect to the following paragraph of your post:
If they have forced you to resign, which means you have submitted the resignation, then there is little that you can do. You submitted resignation to avoid a termination in your employment history. That was your choice.
Comments: - To avoid the domestic enquiry, companies resorted to forcing the employees to put up resignation. However, when such employees approached the labour court and told that their resignation was taken forcibly, the courts have ruled that if the employee had conducted some misconduct, then what prevented them from conducting the domestic enquiry and prove the misconduct? Since the enquiry was not conducted, labour courts have treated the resignation as null and void. Their services were restored with back wages.
While I do not have the exact case number, I have discussed the above issue with lawyer who handles the labour cases.
For the case under discussion, poster's termination is illegal. But then court cases in India do not move even at snail's pace. This prevents the aggrieved employees to approach court and seek justice. Judicial tardiness benefits the employers and they take complete advantage of it.
The second challenge is psychology of Indians. We generally frown at the people who file suits against their employers. If the job applicant discloses that he has filed suit against his/her former employers chances of getting job are very dismal. In the erstwhile era, it was not rapist but the victim/survivor the of rape attracted the social stigma. Employers in India in general and HR in particular cherishes this psychology and look down upon job applicants who stand for their rights.
Thanks,
Dinesh Divekar
From India, Bangalore
I have always maintained that decisions by courts are more dependent on the lawyer you have than the jurisprudence (ofcourse not where the facts are clearly and visibly against you). The lawyer will simply show that mails were exchanged and discussion on phone also that the employee was given a choice of resigning or facing domestic enquiry and possible termination and he chose the later. Adequate documentation can very easily be generated to support it.
Other than that, I agree with all of what you have stated.
Possibility of wining in court and actually gaining is significantly low and rarely rewarding. More so in kpo software and other knowledge sectors. In a factory scenario, for worker level it is a different matter. Here, he is a manager, which adds to the problem.
A lawyer will rarely say : don't file a case, you can't win :)
From India, Mumbai
Other than that, I agree with all of what you have stated.
Possibility of wining in court and actually gaining is significantly low and rarely rewarding. More so in kpo software and other knowledge sectors. In a factory scenario, for worker level it is a different matter. Here, he is a manager, which adds to the problem.
A lawyer will rarely say : don't file a case, you can't win :)
From India, Mumbai
KPO are covered by Shops and Commercial Establishment Act, standing orders....
You were not absent without intimation.
You had properly informed in writing too.
Do You any evidence of demand of resignation: written/audiovisual...?
Forcing to resign I'm offence.
Did you write in resignation that this is being submitted as Mr/Ms...has asked you to resign!
Or have you written in subsequent communication that resignation was extracted by force/coercion/threats etc?
is prolonged absence stated as reasons for termination in standing orders of the company/service rules and regulations?
Did you download the screenshot of say resignation tool that someone else entered resignation by you?
Agreed that you should approach an able Labor Law Consultant /Service matters lawyer with all doc's on record and give inputs in person....
You can also approach employee's/trade union....
.
From India, Chandigarh
You were not absent without intimation.
You had properly informed in writing too.
Do You any evidence of demand of resignation: written/audiovisual...?
Forcing to resign I'm offence.
Did you write in resignation that this is being submitted as Mr/Ms...has asked you to resign!
Or have you written in subsequent communication that resignation was extracted by force/coercion/threats etc?
is prolonged absence stated as reasons for termination in standing orders of the company/service rules and regulations?
Did you download the screenshot of say resignation tool that someone else entered resignation by you?
Agreed that you should approach an able Labor Law Consultant /Service matters lawyer with all doc's on record and give inputs in person....
You can also approach employee's/trade union....
.
From India, Chandigarh
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