There are three aspects in this case.
First terms of employment: As mentioned above, the probation was 3 month; what happened after that, was your probation extended or you were confirmed or the employer did not give anything in writing; if your services were confirmed, confirmation letter should provide the notice period. If nothing was given in writing, then your services remain on probation.
Second issue is whether you are covered under Shops & Establishments Act, which you are most probably; most of Shops & Estt Act provides for a clause on this issue, e.g. Delhi Shops & Estt Act states that the employer has to give one months notice after three months service. It does not matter whether your employment is probation, temporary or whatever, the notice is mandatory.
All Statutory Provisions give the benefits on completion of certain length of service and do not depend on the classification as probation, temporary, permanent, etc.
It is correct that if you are charged with a serious misconduct, you can be dismissed (not terminated) for such misconduct. Before it is done, the charge has to be enquired and proved in accordance with the principles of natural justice.
Yours is not the case of miscondct. It is a case where company is saying re your performance.
As per Industrial Disputes Act, termination of service for reasons other than misconduct, ill health and others mentioned therein, amounts to retrenchment. Your case will squarely fall as retrenchment as efficiency etc are not part of exception. The employer after completion of one year's service is required to give on months notice plus half months salary as compensation for each year of service.
This is the law.
Some of my colleagues are talking about practice in their company. Remember, any practice which is less beneficial than the legal provisions is not legally valid. It does not apply.
From India, Delhi
7First terms of employment: As mentioned above, the probation was 3 month; what happened after that, was your probation extended or you were confirmed or the employer did not give anything in writing; if your services were confirmed, confirmation letter should provide the notice period. If nothing was given in writing, then your services remain on probation.
Second issue is whether you are covered under Shops & Establishments Act, which you are most probably; most of Shops & Estt Act provides for a clause on this issue, e.g. Delhi Shops & Estt Act states that the employer has to give one months notice after three months service. It does not matter whether your employment is probation, temporary or whatever, the notice is mandatory.
All Statutory Provisions give the benefits on completion of certain length of service and do not depend on the classification as probation, temporary, permanent, etc.
It is correct that if you are charged with a serious misconduct, you can be dismissed (not terminated) for such misconduct. Before it is done, the charge has to be enquired and proved in accordance with the principles of natural justice.
Yours is not the case of miscondct. It is a case where company is saying re your performance.
As per Industrial Disputes Act, termination of service for reasons other than misconduct, ill health and others mentioned therein, amounts to retrenchment. Your case will squarely fall as retrenchment as efficiency etc are not part of exception. The employer after completion of one year's service is required to give on months notice plus half months salary as compensation for each year of service.
This is the law.
Some of my colleagues are talking about practice in their company. Remember, any practice which is less beneficial than the legal provisions is not legally valid. It does not apply.
From India, Delhi
Just to add on above, setting performance bench mark is different from employee perspective and employer perspective but it does not mean termination, any improvement plan was devised for you or any opportuinity was given to you? than what was the result.
as far as legality of termination is concerned it has already been pointed out by fellow member in above post your termination shall amount to retrenchment which is bed in law. Before retrenchment there are certain procedural aspect that need to be followed by employer, otherwise its always subject to judicial secrutiny and fails test of fairness before labour court.
Court can order for reinstatement or can ask to pay some compensation in liue of reinstatement, since last couple of years the trend of court is not reinstatement but emphasis is on suitable compensation payment.
You need to consult a laywer and can approach labour and conciliation officer with compliant/demand notice. Even before filing complaint you can send a demand notice to your employer stating all fact duly drafted by lawyer therein incorporating all legal provisions.
Further even you can directly file application before labour court there is not bar to this.
as far as legality of termination is concerned it has already been pointed out by fellow member in above post your termination shall amount to retrenchment which is bed in law. Before retrenchment there are certain procedural aspect that need to be followed by employer, otherwise its always subject to judicial secrutiny and fails test of fairness before labour court.
Court can order for reinstatement or can ask to pay some compensation in liue of reinstatement, since last couple of years the trend of court is not reinstatement but emphasis is on suitable compensation payment.
You need to consult a laywer and can approach labour and conciliation officer with compliant/demand notice. Even before filing complaint you can send a demand notice to your employer stating all fact duly drafted by lawyer therein incorporating all legal provisions.
Further even you can directly file application before labour court there is not bar to this.
in your offer letter its been mentioned if the termination happens because of non performance you will not be given any pay or notice. Hence you can not do anything if your HR is stating because of your nonperformance they are terminating you. If they are asking for resignation please give it so that the company can give you right expirience letter , if do not then company can give you termination letter. Regarding PF if they had deducted, they should give you PF account number in return you can check with PF dept about your PF account status.
Have professional discussion with HR & your reporting manager for smooth exit..
From India, Kochi
Have professional discussion with HR & your reporting manager for smooth exit..
From India, Kochi
The clause stating that termination can be done without notice or pay is invalid since it is in contravention of legal provisions in Shops & Estt Act and Industrial Disputes Act.
No employer can have clauses which contravene the statutory provisions. If the employer has such clause, it is invalid and is replaced by provisions of the law. The advice that the employer can terminate after so long period on non performance without notice or notice pay is not legally valid and is not correct.
From India, Delhi
No employer can have clauses which contravene the statutory provisions. If the employer has such clause, it is invalid and is replaced by provisions of the law. The advice that the employer can terminate after so long period on non performance without notice or notice pay is not legally valid and is not correct.
From India, Delhi
Please tell us which section of shop and establishment act prevents an employer from terminating an employee without reason
From India, Mumbai
From India, Mumbai
I did not say "without reason"; I said "without notice".
Please read Section 30 of Delhi Shops & Establishment Act. I am quoting the section below:N
"No employer shall dispense with the services of an employee who has been in continuous employment for not less than three months, without giving such person at least one months notice in writing or wages in lieu of such notice. PROVIDED that such notice shall not be necessary where services of such employee has been dispensed with for misconduct, after giving him an opportunity to explain the charge or charges against him in writing."
There are similar sections with different periods in almost all the Shops & Est Act of different states.
From India, Delhi
Please read Section 30 of Delhi Shops & Establishment Act. I am quoting the section below:N
"No employer shall dispense with the services of an employee who has been in continuous employment for not less than three months, without giving such person at least one months notice in writing or wages in lieu of such notice. PROVIDED that such notice shall not be necessary where services of such employee has been dispensed with for misconduct, after giving him an opportunity to explain the charge or charges against him in writing."
There are similar sections with different periods in almost all the Shops & Est Act of different states.
From India, Delhi
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Notice of Employee Change.doc