Dear Eronie7,
There is no need for the organization to wait for "Financial Misutilization" in case of such data leakage incidences. Termination can still be on account of 'breaching company's code of conduct'.
Your friend has worked for 9 years for that organization. She must be aware of policies in this regards by the organization. What position did she hold? The higher the position, more is the moral responsibility towards organization. In such case, the dismissals are also more discrete & abrupt.
Even though the show cause notice was served on her last working day 'after office hours', it does not matter much, as it must be still 'last work day' dated letter.
If the termination letter was issued a month later, then why there was 'her last working day' before? Had she already resigned when the show cause notice was issued? In such case, the question would be, if the termination was biased after her resignation, or if it held valid proofs? Did she answer the show cause notice within a month through a written letter to company?
& Most importantly, is it true that she had mailed some company data to her personal ID "on/near her last working day"?
I understand this is not a domestic enquire, but just an anonymous blog entry, & there is no compulsion on answering above question. Though, when she is seeking legal advice, in order to check legality of other party's actions, she has to be also conscious on the legal validity of her own actions.
Last working day is quite emotional period for anyone, especially with long association like 9 years. Some mistakes may happen due to false sense of ownership. But it is we employees who try to bring professionalism in our HR by constant expectations, so if the personal touch is lost & such rules are strictly followed by HR, then we should be ready to accept it as well...
Best Regards,
Amod.
80There is no need for the organization to wait for "Financial Misutilization" in case of such data leakage incidences. Termination can still be on account of 'breaching company's code of conduct'.
Your friend has worked for 9 years for that organization. She must be aware of policies in this regards by the organization. What position did she hold? The higher the position, more is the moral responsibility towards organization. In such case, the dismissals are also more discrete & abrupt.
Even though the show cause notice was served on her last working day 'after office hours', it does not matter much, as it must be still 'last work day' dated letter.
If the termination letter was issued a month later, then why there was 'her last working day' before? Had she already resigned when the show cause notice was issued? In such case, the question would be, if the termination was biased after her resignation, or if it held valid proofs? Did she answer the show cause notice within a month through a written letter to company?
& Most importantly, is it true that she had mailed some company data to her personal ID "on/near her last working day"?
I understand this is not a domestic enquire, but just an anonymous blog entry, & there is no compulsion on answering above question. Though, when she is seeking legal advice, in order to check legality of other party's actions, she has to be also conscious on the legal validity of her own actions.
Last working day is quite emotional period for anyone, especially with long association like 9 years. Some mistakes may happen due to false sense of ownership. But it is we employees who try to bring professionalism in our HR by constant expectations, so if the personal touch is lost & such rules are strictly followed by HR, then we should be ready to accept it as well...
Best Regards,
Amod.
IT employee is a ‘workman,’ says court
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Sets aside dismissal of a senior programmer and orders his reinstatement
Maintaining that a person working in an Information Technology company can be termed a “workman”, a court here on Tuesday set aside the dismissal of an employee stating that it was unlawful.
Additional Labour Court Presiding Officer S. Nambirajan also directed the firm to reinstate the petitioner with continuity of service and to pay full back wages and all other benefits from the date of dismissal to the date of reinstatement.
The order was given on an industrial dispute plea filed by K Ramesha, who was dismissed as Senior Service Programmer while working in HCL Technologies Limited, seeking to set aside his dismissal.
“It cannot be denied that the job of an engineer in a software company involves skills and technical knowledge. Therefore it can be concluded that the job of a software engineer can be termed as the skilled or technical one,” the court said.
The management contented that Mr. Ramesha was a supervisor and therefore exempted from the definition of the term “workman”.
“Any person doing a skilled job is a workman under the definition of that term. So I conclude that the petitioner is a workman,” the judge said.
On January 22, 2013 the firm terminated his service on the ground that his performance was not satisfactory without explanation. .
“The firm has not produced any evidence to show that failure to improve performance would amount to an act of misconduct,” the court said. — PTI
From India, Chennai
print · T T
inShare
Sets aside dismissal of a senior programmer and orders his reinstatement
Maintaining that a person working in an Information Technology company can be termed a “workman”, a court here on Tuesday set aside the dismissal of an employee stating that it was unlawful.
Additional Labour Court Presiding Officer S. Nambirajan also directed the firm to reinstate the petitioner with continuity of service and to pay full back wages and all other benefits from the date of dismissal to the date of reinstatement.
The order was given on an industrial dispute plea filed by K Ramesha, who was dismissed as Senior Service Programmer while working in HCL Technologies Limited, seeking to set aside his dismissal.
“It cannot be denied that the job of an engineer in a software company involves skills and technical knowledge. Therefore it can be concluded that the job of a software engineer can be termed as the skilled or technical one,” the court said.
The management contented that Mr. Ramesha was a supervisor and therefore exempted from the definition of the term “workman”.
“Any person doing a skilled job is a workman under the definition of that term. So I conclude that the petitioner is a workman,” the judge said.
On January 22, 2013 the firm terminated his service on the ground that his performance was not satisfactory without explanation. .
“The firm has not produced any evidence to show that failure to improve performance would amount to an act of misconduct,” the court said. — PTI
From India, Chennai
Dear Pasupathi,
Citing case law on termination of employee on the grounds of under-performance is out of context. Termination because of security breach and under-performance, both are unrelated to each other.
Thanks,
Dinesh Divekar
From India, Bangalore
Citing case law on termination of employee on the grounds of under-performance is out of context. Termination because of security breach and under-performance, both are unrelated to each other.
Thanks,
Dinesh Divekar
From India, Bangalore
Dear Pasupathi sir,
By mentioning about the news do you mean to say that the employee in this case can also be termed as a workmen and she can challenge the company in court since the company have not followed a proper domestic inquiry and have denied her gratuity.
Please correct me sir if I made mistake in understanding your point since I am new to HR field.
Thanks and Regards.
Gokul
From India, Mumbai
By mentioning about the news do you mean to say that the employee in this case can also be termed as a workmen and she can challenge the company in court since the company have not followed a proper domestic inquiry and have denied her gratuity.
Please correct me sir if I made mistake in understanding your point since I am new to HR field.
Thanks and Regards.
Gokul
From India, Mumbai
Dear Amod
She had already resigned and was serving notice perioed. Infact she had handed over all her office equipments like laptop and other items which were in her custody and got attestation of her Reporting Manager in exit form. 1st show cause notice was served on her last working day after business hour mentioning that her accepted resignation is on hold.
Regards
Ronie S
From India, Gurgaon
She had already resigned and was serving notice perioed. Infact she had handed over all her office equipments like laptop and other items which were in her custody and got attestation of her Reporting Manager in exit form. 1st show cause notice was served on her last working day after business hour mentioning that her accepted resignation is on hold.
Regards
Ronie S
From India, Gurgaon
Dear Eronie ,
The ground for termination may be debatable.Your friend may or may not have transferred confidential data to her mail a/c.It appears that you yourself and obviously we at Cite HR are not sure about it.However what struck me as odd is that there is no mention in termination letter about denial of gratuity and reasons thereof.It appears that management is not sure whether they can actually deny gratuity benefit and justify it in court of law if required.Their threat to take legal action in future may be a tactic to stop her from going to court by scaring her off !
From India, New Delhi
The ground for termination may be debatable.Your friend may or may not have transferred confidential data to her mail a/c.It appears that you yourself and obviously we at Cite HR are not sure about it.However what struck me as odd is that there is no mention in termination letter about denial of gratuity and reasons thereof.It appears that management is not sure whether they can actually deny gratuity benefit and justify it in court of law if required.Their threat to take legal action in future may be a tactic to stop her from going to court by scaring her off !
From India, New Delhi
30th Sep'15 was her LWD and show cause notice was served at 6.45pm on the very same day whereas office business hours ends at 5.30pm. Her termination letter was dated 6th nov'15 and mentioned effective date of termination as 30th sep'15 which originally was her LWD.
Regards
Ronie S
From India, Gurgaon
Regards
Ronie S
From India, Gurgaon
Dear Eronie,
Adding on to Mr. Nath information, First of all - How can you conclude it was her last working day without proper resignation. Show cause notice is served to an employee to explain the reason in 48 hrs and then the termination order to be served if found guilty upon enquiry. Proper documentation to be made to terminate an employee and not on fictitious grounds. Gratuity can never ever be fortfeited since it is under the purview of statutory and the employee can go to court of law. IF the company has any monetary loss it has to have a proven evidence. I suggest let the employee file a case through an advocate for explanation and if not go to the labour court.
From India, Chennai
Adding on to Mr. Nath information, First of all - How can you conclude it was her last working day without proper resignation. Show cause notice is served to an employee to explain the reason in 48 hrs and then the termination order to be served if found guilty upon enquiry. Proper documentation to be made to terminate an employee and not on fictitious grounds. Gratuity can never ever be fortfeited since it is under the purview of statutory and the employee can go to court of law. IF the company has any monetary loss it has to have a proven evidence. I suggest let the employee file a case through an advocate for explanation and if not go to the labour court.
From India, Chennai
Dear Sathish Her resignation was already accepted by Reporting Manager and was serving notice period. Show cause was served in her LWD only after business hours. Regards Eronie
From India, Gurgaon
From India, Gurgaon
Forfeiture of gratuity is allowed only when the service of the employee is terminated.
For the purpose of termination of service, show cause notice is to be issued followed by conducting a domestic enquiry giving employee opportunity on the basis of principle of natural justice and then terminating the service.
If the service is not terminated following the method then such termination becomes illegal and on the basis of such illegal termination gratuity cannot be forfeited.
It is better to claim gratuity now FORM I before then employer and if not paid then proceed with FORM N before the Controlling Authority.
Please check www.labourlawhub.com for more information.
From India, Kolkata
For the purpose of termination of service, show cause notice is to be issued followed by conducting a domestic enquiry giving employee opportunity on the basis of principle of natural justice and then terminating the service.
If the service is not terminated following the method then such termination becomes illegal and on the basis of such illegal termination gratuity cannot be forfeited.
It is better to claim gratuity now FORM I before then employer and if not paid then proceed with FORM N before the Controlling Authority.
Please check www.labourlawhub.com for more information.
From India, Kolkata
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FORM-F-NOMINATI ON OF GRATUITY.pdf
Gratuity Form I.doc