Hello Experts, I like to know your opinion on the following case:
An employee of middle-senior management was terminated during month end, as per contract the employee should get 1 month salary as notice. So in this case present month salary + 1 month salary as notice+ leave encashment less deductions if any.
The company didn't want to pay 1 month notice salary, as per them during probation no notice is required but as per employment contract one month notice is mentioned and no where in the contract there is a mention of "no notice" or '1 day notice" during probation. The employee was on the verge of completing 6 months before he was unprofessionally terminated.
During F&F payment, the final calculation was not shared beforehand and the employee was asked to come to the office to collect F&F payment. The F&F was missing notice period salary.
The employee was given 2 options; either accept the given F&F or do whatever he wants to do. The employee at that time accepted the cheque payment (as it was significant amount) and signed F&F settlement.
After that employee wrote to HR & senior management that there was some miscalculation and 1 month notice was missing. There is no response from the company. On phone HR mgr said, we have done the F&F and you have accepted this. Employee told I have given you the acknowledgement of the receipt of the cheque, however if there is calculation mistake or some part is not included by any reason then the same has to be paid immediately.
Please advise, if the employee can go legal to recover his dues.
How much time does it normally takes.
Employee has spoken and sent mail to all concerned people but it is clear that the instruction of not paying notice had come from the top level.
Thanking you all for your valuable and useful advice.
Regards,
Rajshree
From India, Delhi
9An employee of middle-senior management was terminated during month end, as per contract the employee should get 1 month salary as notice. So in this case present month salary + 1 month salary as notice+ leave encashment less deductions if any.
The company didn't want to pay 1 month notice salary, as per them during probation no notice is required but as per employment contract one month notice is mentioned and no where in the contract there is a mention of "no notice" or '1 day notice" during probation. The employee was on the verge of completing 6 months before he was unprofessionally terminated.
During F&F payment, the final calculation was not shared beforehand and the employee was asked to come to the office to collect F&F payment. The F&F was missing notice period salary.
The employee was given 2 options; either accept the given F&F or do whatever he wants to do. The employee at that time accepted the cheque payment (as it was significant amount) and signed F&F settlement.
After that employee wrote to HR & senior management that there was some miscalculation and 1 month notice was missing. There is no response from the company. On phone HR mgr said, we have done the F&F and you have accepted this. Employee told I have given you the acknowledgement of the receipt of the cheque, however if there is calculation mistake or some part is not included by any reason then the same has to be paid immediately.
Please advise, if the employee can go legal to recover his dues.
How much time does it normally takes.
Employee has spoken and sent mail to all concerned people but it is clear that the instruction of not paying notice had come from the top level.
Thanking you all for your valuable and useful advice.
Regards,
Rajshree
From India, Delhi
If the contract of employment does not speak about notice period during probation but is a blanket statement that one month notice is required to be served, then the same is applicable during probation period also and the employee should get notice pay. Filing case against the company will depend on the status of the employee. If he has been working as a manager with managerial powers then he will have to file a civil suite but at the same time if he was given only a fancy designation without powers of even sanctioning leaves of subordinates or appraising the performance of his subordinates or initiating disciplinary action against the subordinates, then he will come under the definition of workman and in such scenario collecting money due from the employer is more easy as the provisions of Industrial Disputes Act will help him.
Madhu.T.K
From India, Kannur
Madhu.T.K
From India, Kannur
Dear Mr.Madhu TK, Thanks so much. In fact you answered one more query. Yes, the candidate was given the designation of General manager but he had no direct reportee, the guys junior below him were reporting directly to CMD and he had no authority over their performance, KRA, leave etc.
If you could please provide some more help:
1) can he ask for severance pay, according to him it is a total unprofessional and vindictive decision my the top boss to terminate him
2) How much time does it take (average) to get response legally.
Thanks again and best wishes
Rajshree
From India, Delhi
If you could please provide some more help:
1) can he ask for severance pay, according to him it is a total unprofessional and vindictive decision my the top boss to terminate him
2) How much time does it take (average) to get response legally.
Thanks again and best wishes
Rajshree
From India, Delhi
I can't say anything about the time taken if he goes for legal battle, but I would suggest that he should start by himself writing to the company and then lodging a complaint before the Labour Officer ( if he was just holding a fancy designation without any supervisory/ managerial powers, the Labour department will be able to help him). This process will not take much time. Once a complaint is lodged, naturally, the department will call both the parties for conciliation and of course, a settlement can be expected. Since it is an administrative forum, you can have direct discussion and a settlement can be reached.
Regards,
Madhu.T.K
From India, Kannur
Regards,
Madhu.T.K
From India, Kannur
Dear Rajshree,
After going through your questions and the response of Mr.Madhu, I do have a basic doubt why you are so concerned about the retaliatory action to be taken by the discharged employee..... Is it because you are part of the HR team that gave the suggestion to do away with him in the manner so-narrated? or out of sympathy towards a colleague shown the exit so ignominously? or the victim is none other than yourself? Human tendency, in general, is to decide first and look for innumerable options to justify the decision taken. Problem arises only we bank upon empty justifications supporting a wrong decision. How a General Manager can professionally impress a CMD when he has no control over his junior colleagues or not even being a formal conduit of the communication process in the organization?.The gentleman seems to be thick-skinned. Otherwise, he would have won half the battle by striking the first blow putting down his papers explaining the actual reasons.So every possibility is there that he will choose any one of the options Madhu suggested.If his only bone of contention is the notice pay as per the contract and not the unceremonious termination, the paying of the same will fully and finally resolve the dispute.Since there is a perceptible change in the interpretation of the definition of the term " workman " under the Industrial Disputes Act,1947 by the higher judiciary now-a-days by strictly examining the presence of any one of the seven attributes qualfying the term 'workman' in cl (s) of Sec.2, I don't think the gentleman will waste his time and energy by taking recourse to the provisions of the I.D act1947.
From India, Salem
After going through your questions and the response of Mr.Madhu, I do have a basic doubt why you are so concerned about the retaliatory action to be taken by the discharged employee..... Is it because you are part of the HR team that gave the suggestion to do away with him in the manner so-narrated? or out of sympathy towards a colleague shown the exit so ignominously? or the victim is none other than yourself? Human tendency, in general, is to decide first and look for innumerable options to justify the decision taken. Problem arises only we bank upon empty justifications supporting a wrong decision. How a General Manager can professionally impress a CMD when he has no control over his junior colleagues or not even being a formal conduit of the communication process in the organization?.The gentleman seems to be thick-skinned. Otherwise, he would have won half the battle by striking the first blow putting down his papers explaining the actual reasons.So every possibility is there that he will choose any one of the options Madhu suggested.If his only bone of contention is the notice pay as per the contract and not the unceremonious termination, the paying of the same will fully and finally resolve the dispute.Since there is a perceptible change in the interpretation of the definition of the term " workman " under the Industrial Disputes Act,1947 by the higher judiciary now-a-days by strictly examining the presence of any one of the seven attributes qualfying the term 'workman' in cl (s) of Sec.2, I don't think the gentleman will waste his time and energy by taking recourse to the provisions of the I.D act1947.
From India, Salem
Dear Sir,
Thanks so much for your valuable advice. The discharged employee is a good friend and he was asking guidance from me on proper course of action from HR point of view. He kept sharing his ordeal ever since he landed in that organisation, I mean from the 2nd week itself he came across the hard facts.
He is sad & anguished as he feels that his career has been spoiled by the careless hiring & firing by the company. It's a proprietorship company where whims and fancies of only one person prevail.
He was shown a totally wrong picture, misleading commitments etc.. He has enough matter to substantiate his claim. All his colleagues in the company know that he has been victimised but sadly it is the way of life for them and hard luck for the discharged employee.
Now all he is asking is the fair settlement of his dues as per the appointment letter but company is in a denying mode.
To get his fair dues recovered, he will be left only one option to claim it legally but then when it goes legally, can he demand for severance pay or some other compensation? will it be at all advisable to go for legal recourse or just forget the incident as a bad dream.
Please advise.
As it in uncertain as how soon he gets the job, if he gets the job; will it be of the same level in terms of profile & salary. But it is surely a jolt in his career path as well as social stigma which he is carrying.
Sir, if you don't mind can you be contacted on phone to seek some help & counselling.
Thanks & regards
From India, Delhi
Thanks so much for your valuable advice. The discharged employee is a good friend and he was asking guidance from me on proper course of action from HR point of view. He kept sharing his ordeal ever since he landed in that organisation, I mean from the 2nd week itself he came across the hard facts.
He is sad & anguished as he feels that his career has been spoiled by the careless hiring & firing by the company. It's a proprietorship company where whims and fancies of only one person prevail.
He was shown a totally wrong picture, misleading commitments etc.. He has enough matter to substantiate his claim. All his colleagues in the company know that he has been victimised but sadly it is the way of life for them and hard luck for the discharged employee.
Now all he is asking is the fair settlement of his dues as per the appointment letter but company is in a denying mode.
To get his fair dues recovered, he will be left only one option to claim it legally but then when it goes legally, can he demand for severance pay or some other compensation? will it be at all advisable to go for legal recourse or just forget the incident as a bad dream.
Please advise.
As it in uncertain as how soon he gets the job, if he gets the job; will it be of the same level in terms of profile & salary. But it is surely a jolt in his career path as well as social stigma which he is carrying.
Sir, if you don't mind can you be contacted on phone to seek some help & counselling.
Thanks & regards
From India, Delhi
Thank you Rajshree for your feed-back. In everyone's career graph, when you ascend to the point of senior level manager and change your job, it should not be merely in search of greener pasture. You have to choose a right employer who will give you the space to be on your mettle. Otherwise, ignominy like the one happened to your good friend is inevitable.Coming to your questions, he can file a civil suit claiming damages for breech of contract as well as notice pay stipulated therein. How long it will take God only knows. Regarding the impact of the present termination on his future employment, I don't think it will be a black-mark since his tenure in your Company is for a smaller spell only. If his efficiency level matches the requirements of the new job he seeks, this small stint will certainly pale into insignificance. Bosses always like followers in their organzations, not leaders. That's why Peter Dreucker once said ... efficiency leads to insubordination and in turn to incompetence.
From India, Salem
From India, Salem
Dear Sir,
Approached Labor commissioner and explained the case. He felt sad & anger upon knowing such state of affairs. He also mentioned about receiving similar complaints in past.
After some discussion, he accepted the case and referred to the labour inspector. The office coordinator told that both parties shall be called for the meeting.
Sir, need some valuable guidance from your side as how to act/or handle such meetings, what should be the approach?
In case the employer refuse to pay, can we approach civil court? In that case, will this incidence of approaching labour comm officer go in favour/or against?
Thanks in advance for your time and hoping to receive your valuable inputs.
Regards
From India, Delhi
Approached Labor commissioner and explained the case. He felt sad & anger upon knowing such state of affairs. He also mentioned about receiving similar complaints in past.
After some discussion, he accepted the case and referred to the labour inspector. The office coordinator told that both parties shall be called for the meeting.
Sir, need some valuable guidance from your side as how to act/or handle such meetings, what should be the approach?
In case the employer refuse to pay, can we approach civil court? In that case, will this incidence of approaching labour comm officer go in favour/or against?
Thanks in advance for your time and hoping to receive your valuable inputs.
Regards
From India, Delhi
Dear Rajshree,
I appreciate your initiative.I am sure that having been employed as a " General Manager ", your friend cannot have any relief under the I.D Act1947. But no harm in the intervention of the Authority under the Act for it can have some persuasive effect on the part of the management to settle the issue amicably and informally so as to avoid lengthy and expensive litigation.In the enquiry, ask for compensation as well as notice pay; if the management comes forward to pay the notice pay only as per the contract, better accept it.Otherwise, file a civil suit and remarks if any received from the mgt during the enquiry would strengthen your claim before the Court.
From India, Salem
I appreciate your initiative.I am sure that having been employed as a " General Manager ", your friend cannot have any relief under the I.D Act1947. But no harm in the intervention of the Authority under the Act for it can have some persuasive effect on the part of the management to settle the issue amicably and informally so as to avoid lengthy and expensive litigation.In the enquiry, ask for compensation as well as notice pay; if the management comes forward to pay the notice pay only as per the contract, better accept it.Otherwise, file a civil suit and remarks if any received from the mgt during the enquiry would strengthen your claim before the Court.
From India, Salem
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