That's the reason for those employees misconduct and involving in other activities which is against the company's interest, majority companies used to take compulsory resignation and sending them from company. If they give termination then the company has to pay notice pay, retrenchment compensation, Leave pay, Gratuity and other eligible benefits as per the terms of agreement. If a person sent on Compulsory resignation we can mention the reason as resignation and in conduct column we can state unsatisfactory in the service certificate/experience certificate/relieving letter whatever it may be and the Individual will only be paid with Leave Pay and other than that nothing we need to pay to the employee. In which we can be free from any legal complication or litigation in future.
From India, Kumbakonam
1168From India, Kumbakonam
Dear Friends,
There are some valuable suggestions that has come of this discussion.
I have a question here.
"If an employee is not given an appointment letter and has been found to indulge in indiscipline and theft and the company has issued warning letters, but the employee has not accepted it. Now if the company terminates the service of this employee. The employee stops coming to work, but send a legal notice. In this case how should the company handle the case in court. "
From India, Mumbai
There are some valuable suggestions that has come of this discussion.
I have a question here.
"If an employee is not given an appointment letter and has been found to indulge in indiscipline and theft and the company has issued warning letters, but the employee has not accepted it. Now if the company terminates the service of this employee. The employee stops coming to work, but send a legal notice. In this case how should the company handle the case in court. "
From India, Mumbai
Dear Mr. Rakesh
Here you have given salary slip, further for confirming his employment in your organisation you have issued some warning letter too. That's enough for him to file a case against your organisation and to prove that he is the employee of your organisation.
Please document all the evidence you have collected against the employee and protect from tampering by his supporters in your organisation. As and when required you can produce the same to court.
Hope you might have done some inquiry and for which also you are having proper documentation in your files.
From India, Kumbakonam
Here you have given salary slip, further for confirming his employment in your organisation you have issued some warning letter too. That's enough for him to file a case against your organisation and to prove that he is the employee of your organisation.
Please document all the evidence you have collected against the employee and protect from tampering by his supporters in your organisation. As and when required you can produce the same to court.
Hope you might have done some inquiry and for which also you are having proper documentation in your files.
From India, Kumbakonam
Dear Friends and fellow members,
First of all let me clarify the situation assuming certain things like the employee has completed 240 days of service in last 12 months and the management is willing to terminate his service due to some reason and above all he fall under the definition of workman..
1. management can terminate the employee by following the course given in the industrial disputes act which has a clear provision of retrenchment of the employee. See below section
"[25F. Conditions precedent to retrenchment of workmen. —No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until—
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
3[***]
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 4[for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government 5[or such authority as may be specified by the appropriate Government by notification in the Official Gazette]]. "
2. if Management wants it can terminate the workman by giving him his applicable dues and retrenchment compensation. but keep in mind and get his sign on the letter saying that he is forgoing his right to get re appointed as per section given below.
2[25H. Re-employment of retrenched workmen. —Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity 3[to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen] who offer themselves for re-employment shall have preference over other persons.]
“(2) Where a closed unit is re-opened the workmen on the roll of the unit immediately before its closure shall be given an opportunity to offer themselves for re-employment in the manner provided in sub-section (1).”
keep this section in mind before reemploying any person and prepare yourself before it make any trouble so to evade such condition get it in written that he is forgoing his right to claim reemployment preference at the position.
3. if he himself wants to leave the organization he will not be entitled to any retrenchment compensation.
4. gratuity and other dues like PF etc if applicable in the case also have to be settled forthwith.
From India, New Delhi
First of all let me clarify the situation assuming certain things like the employee has completed 240 days of service in last 12 months and the management is willing to terminate his service due to some reason and above all he fall under the definition of workman..
1. management can terminate the employee by following the course given in the industrial disputes act which has a clear provision of retrenchment of the employee. See below section
"[25F. Conditions precedent to retrenchment of workmen. —No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until—
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
3[***]
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 4[for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government 5[or such authority as may be specified by the appropriate Government by notification in the Official Gazette]]. "
2. if Management wants it can terminate the workman by giving him his applicable dues and retrenchment compensation. but keep in mind and get his sign on the letter saying that he is forgoing his right to get re appointed as per section given below.
2[25H. Re-employment of retrenched workmen. —Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity 3[to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen] who offer themselves for re-employment shall have preference over other persons.]
STATE AMENDMENTS
Andhra Pradesh. —(a) Renumber section 25H as sub-section (1) thereof and after sub-section (1), as so numbered, insert the following sub-section, namely:— “(2) Where a closed unit is re-opened the workmen on the roll of the unit immediately before its closure shall be given an opportunity to offer themselves for re-employment in the manner provided in sub-section (1).”
keep this section in mind before reemploying any person and prepare yourself before it make any trouble so to evade such condition get it in written that he is forgoing his right to claim reemployment preference at the position.
3. if he himself wants to leave the organization he will not be entitled to any retrenchment compensation.
4. gratuity and other dues like PF etc if applicable in the case also have to be settled forthwith.
From India, New Delhi
Every thing I wanted to say is already been said by others. Let him resign and go peacefully..as your company is also not comfortable with him..Why do you want to stop his resignation and terminate him? This action would insult him and he might approch Labour Court, for termination you need to follow some proceedures before the final Notice. If you have not done all that, you will be in trouble as an HR answering and running behind Labour Court and atlast you will end up paying more to the Employee or to the Labour Officer as bribe ( From My experience)
So just accept his resignation or else motivate the guy to resign by demoralising him ( You need to play diplomatic some times) by explaining various negativity of continuing with the organisation in informal manner.
I hope all together you have got clear answer from all of us.
Take Care
Sreehariprasad.N
Manager HR
Delhi Heart &Lungs Institute
From India, Lucknow
So just accept his resignation or else motivate the guy to resign by demoralising him ( You need to play diplomatic some times) by explaining various negativity of continuing with the organisation in informal manner.
I hope all together you have got clear answer from all of us.
Take Care
Sreehariprasad.N
Manager HR
Delhi Heart &Lungs Institute
From India, Lucknow
Hi ,
If the employee is resigning on his own accord , its better that you accept his resignation as per terms and conditions of appointment and let him go . Do not make it an ego issue.
Termination would require the whole process of charge sheeting and holding an enquiry as per principles o f natural justice. Even then the employee can challenge the Management decision in the court of law. So why to go in to all this when the employee is resigning on his won accord.
Best.
Jai.
From India
If the employee is resigning on his own accord , its better that you accept his resignation as per terms and conditions of appointment and let him go . Do not make it an ego issue.
Termination would require the whole process of charge sheeting and holding an enquiry as per principles o f natural justice. Even then the employee can challenge the Management decision in the court of law. So why to go in to all this when the employee is resigning on his won accord.
Best.
Jai.
From India
Hi, if the employee is ready to resign on his own, pls advice the management to accept and relieve him immdly.
From India, Pune
From India, Pune
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