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 regard by the organization. What position did she hold? The higher the position, the more is the moral responsibility towards the organization. In such cases, the dismissals are also more discrete and 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 still be 'last work day' dated letter.
If the termination letter was issued a month later, then why was 'her last working day' before? Had she already resigned when the show cause notice was issued? In such a 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 the 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 inquiry, but just an anonymous blog entry, and there is no compulsion on answering the above question. Though, when she is seeking legal advice, in order to check the legality of the other party's actions, she has to be also conscious of the legal validity of her own actions.
The last working day is quite an emotional period for anyone, especially with a long association like 9 years. Some mistakes may happen due to a false sense of ownership. But it is we employees who try to bring professionalism into our HR by constant expectations, so if the personal touch is lost and such rules are strictly followed by HR, then we should be ready to accept it as well...
Best Regards,
Amod.
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82There 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 regard by the organization. What position did she hold? The higher the position, the more is the moral responsibility towards the organization. In such cases, the dismissals are also more discrete and 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 still be 'last work day' dated letter.
If the termination letter was issued a month later, then why was 'her last working day' before? Had she already resigned when the show cause notice was issued? In such a 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 the 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 inquiry, but just an anonymous blog entry, and there is no compulsion on answering the above question. Though, when she is seeking legal advice, in order to check the legality of the other party's actions, she has to be also conscious of the legal validity of her own actions.
The last working day is quite an emotional period for anyone, especially with a long association like 9 years. Some mistakes may happen due to a false sense of ownership. But it is we employees who try to bring professionalism into our HR by constant expectations, so if the personal touch is lost and such rules are strictly followed by HR, then we should be ready to accept it as well...
Best Regards,
Amod.
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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
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print · T T
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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
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Dear Pasupathi,
Citing case law on the termination of an employee on the grounds of underperformance is out of context. Termination due to a security breach and underperformance are unrelated to each other.
Thanks,
Dinesh Divekar
From India, Bangalore
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Citing case law on the termination of an employee on the grounds of underperformance is out of context. Termination due to a security breach and underperformance are unrelated to each other.
Thanks,
Dinesh Divekar
From India, Bangalore
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Dear Pasupathi sir,
By mentioning the news, do you mean to say that the employee in this case can also be termed as a workman, and she can challenge the company in court since the company has not followed a proper domestic inquiry and has denied her gratuity?
Please correct me, sir, if I made a mistake in understanding your point since I am new to the HR field.
Thanks and Regards,
Gokul
From India, Mumbai
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By mentioning the news, do you mean to say that the employee in this case can also be termed as a workman, and she can challenge the company in court since the company has not followed a proper domestic inquiry and has denied her gratuity?
Please correct me, sir, if I made a mistake in understanding your point since I am new to the HR field.
Thanks and Regards,
Gokul
From India, Mumbai
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Dear Amod,
She had already resigned and was serving the notice period. In fact, she had handed over all her office equipment like a laptop and other items that were in her custody and obtained attestation from her Reporting Manager on the exit form. The first show-cause notice was served on her last working day after business hours, mentioning that her accepted resignation is on hold.
Regards,
Ronie S
From India, Gurgaon
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She had already resigned and was serving the notice period. In fact, she had handed over all her office equipment like a laptop and other items that were in her custody and obtained attestation from her Reporting Manager on the exit form. The first show-cause notice was served on her last working day after business hours, mentioning that her accepted resignation is on hold.
Regards,
Ronie S
From India, Gurgaon
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Dear Eronie,
The grounds for termination may be debatable. Your friend may or may not have transferred confidential data to her email account. 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 the termination letter about the denial of gratuity and the reasons thereof. It appears that management is not sure whether they can actually deny the gratuity benefit and justify it in a court of law if required. Their threat to take legal action in the future may be a tactic to stop her from going to court by scaring her off!
From India, New Delhi
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The grounds for termination may be debatable. Your friend may or may not have transferred confidential data to her email account. 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 the termination letter about the denial of gratuity and the reasons thereof. It appears that management is not sure whether they can actually deny the gratuity benefit and justify it in a court of law if required. Their threat to take legal action in the future may be a tactic to stop her from going to court by scaring her off!
From India, New Delhi
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30th Sep '15 was her Last Working Day (LWD), and a show-cause notice was served at 6:45 p.m. on the same day, even though office business hours end at 5:30 p.m. Her termination letter was dated 6th Nov '15 and mentioned the effective date of termination as 30th Sep '15, which was originally her LWD.
Regards,
Ronie S
From India, Gurgaon
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Regards,
Ronie S
From India, Gurgaon
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Dear Eronie,
Adding on to Mr. Nath's information, first of all - how can you conclude it was her last working day without a proper resignation? A show cause notice is served to an employee to explain the reason within 48 hours, and then the termination order is served if found guilty upon inquiry. Proper documentation must be made to terminate an employee and not on fictitious grounds. Gratuity can never be forfeited since it falls under the purview of statutory regulations, and the employee can take the matter to a court of law. If the company has incurred any monetary loss, there must be proven evidence. I suggest letting the employee file a case through an advocate for an explanation, and if not resolved, proceed to the labor court.
From India, Chennai
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Adding on to Mr. Nath's information, first of all - how can you conclude it was her last working day without a proper resignation? A show cause notice is served to an employee to explain the reason within 48 hours, and then the termination order is served if found guilty upon inquiry. Proper documentation must be made to terminate an employee and not on fictitious grounds. Gratuity can never be forfeited since it falls under the purview of statutory regulations, and the employee can take the matter to a court of law. If the company has incurred any monetary loss, there must be proven evidence. I suggest letting the employee file a case through an advocate for an explanation, and if not resolved, proceed to the labor court.
From India, Chennai
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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
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From India, Gurgaon
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Forfeiture of gratuity is allowed only when the service of the employee is terminated. For the purpose of termination of service, a show-cause notice is to be issued, followed by conducting a domestic enquiry giving the employee an opportunity on the basis of the principles of natural justice, and then terminating the service. If the service is not terminated following this 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 using FORM I before the 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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It is better to claim gratuity now using FORM I before the 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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