Hi Sir,
I was working for one of the biggest telecom companies Bangalore office and I was facing an issue of workplace harassment and perhaps a wrongful termination.
I have been threatened and harassed to resign for months and when I refused to do so finally they have terminated me by siting a clause from my offer letter, which I believe was wrong. I have consulted few Lawyers and some of them told me that if such term is mentioned in the offer letter you can not do anything about it.
But then I came across one of senior lawyers comment on a post : "Just remember the terms of your appointment letter that services can be terminated without assigning any reason are not legally valid and does not stand effective in the eyes of Law Courts." This gives me some hope.
I am just not able to connect to the senior advocate who mentioned this in that comment.
There are many other employees from my company who has been forced to resign in a similar way.
But my question is can any employee be terminated without cause just because the appointment letter have such clause ??they almost always have that in the offer letter. If yes then why are they forcing people to resign why not use this to terminate anyone ??
Regards,
Rohit
From India, Hassan
I was working for one of the biggest telecom companies Bangalore office and I was facing an issue of workplace harassment and perhaps a wrongful termination.
I have been threatened and harassed to resign for months and when I refused to do so finally they have terminated me by siting a clause from my offer letter, which I believe was wrong. I have consulted few Lawyers and some of them told me that if such term is mentioned in the offer letter you can not do anything about it.
But then I came across one of senior lawyers comment on a post : "Just remember the terms of your appointment letter that services can be terminated without assigning any reason are not legally valid and does not stand effective in the eyes of Law Courts." This gives me some hope.
I am just not able to connect to the senior advocate who mentioned this in that comment.
There are many other employees from my company who has been forced to resign in a similar way.
But my question is can any employee be terminated without cause just because the appointment letter have such clause ??they almost always have that in the offer letter. If yes then why are they forcing people to resign why not use this to terminate anyone ??
Regards,
Rohit
From India, Hassan
Hi Rohit,
It would be good to check if the same appointment letter has a clause for notice period, stating that on resigning the employee is supposed to serve a notice period. If there is a clause on serving the notice period, then this contradicts the clause that termination can happen without assigning any reason.
This is because the appointment letter then becomes invalid providing advantage to the company, but not to the employee who cannot leave whenever she/he wants to.
In the US, there is the "at will employment" which provides the employer and the employee the benefit of ending their work relationship without any notice or reason, as long as there is no ground for discrimination or retaliation of any kind. Under such arrangements, the company can terminate the employee's services anytime or the employee can leave the company anytime without serving any notice period.
Now, if your appointment letter poses terms of at will employment, which is most unlikely in India, you can still provide evidence from the harassment you have suffered over the months, stating that your exit was part of a "constructive discharge" where an employee is made to feel uncomfortable in a hostile work environment finally resulting in exit.
From India, Bengaluru
61It would be good to check if the same appointment letter has a clause for notice period, stating that on resigning the employee is supposed to serve a notice period. If there is a clause on serving the notice period, then this contradicts the clause that termination can happen without assigning any reason.
This is because the appointment letter then becomes invalid providing advantage to the company, but not to the employee who cannot leave whenever she/he wants to.
In the US, there is the "at will employment" which provides the employer and the employee the benefit of ending their work relationship without any notice or reason, as long as there is no ground for discrimination or retaliation of any kind. Under such arrangements, the company can terminate the employee's services anytime or the employee can leave the company anytime without serving any notice period.
Now, if your appointment letter poses terms of at will employment, which is most unlikely in India, you can still provide evidence from the harassment you have suffered over the months, stating that your exit was part of a "constructive discharge" where an employee is made to feel uncomfortable in a hostile work environment finally resulting in exit.
From India, Bengaluru
@Nelson Yes there is a clause about notice period too, but it says either party can wave off the notice period by paying salary equivalent to the notice period duration.
From India, Hassan
From India, Hassan
A clause in the appointment order which says that the employment can be terminated without without assigning any reason will not be maintainable before Law. Though it is true that an appointment order once signed by both can be taken as the contract of employment, yet the same cannot contain any negative clauses which in solely in favour of the employer. You cannot say that since the employee has accepted the terms it would be binding on him. This is because employee at the time of signing the contract of employment is at a weaker position than the employer who enjoys a supremacy. That means the contract is a voidable contract and will not stand. If we allow it in favour of the employer, there will be a tendency to include clauses like you will not be eligible for gratuity if you complete five years, your salary can be paid on 15th of every month, or you will not join a union.
Now coming to the protection available to employees, there are two approaches, viz, approach for an employee who had no reportee under him or a worker as per definition of Industrial Disputes Act and approach for an employee who had supervisory or managerial powers as per FUNCTIONS. I have highlighted the word "functions" because you may be designated as Manager but you may not have any managerial right,like, right to approve leave of your subordinate, initiate disciplinary action against the subordinate or do performance appraisal of your subordinate. In the case of former, the provisions of the ID Act will prevail over the provisions of the appointment order and you cannot terminate an employee without following the procedures given in the ID Act whatever be the terms agreed by the employee. On the other hand, the provisions of the ID Act has nothing to do with service conditions of managerial persons. For them the contract of employment will prevail. However, this does not mean that you can make an agreement with clauses which favour the employer only.
From India, Kannur
Now coming to the protection available to employees, there are two approaches, viz, approach for an employee who had no reportee under him or a worker as per definition of Industrial Disputes Act and approach for an employee who had supervisory or managerial powers as per FUNCTIONS. I have highlighted the word "functions" because you may be designated as Manager but you may not have any managerial right,like, right to approve leave of your subordinate, initiate disciplinary action against the subordinate or do performance appraisal of your subordinate. In the case of former, the provisions of the ID Act will prevail over the provisions of the appointment order and you cannot terminate an employee without following the procedures given in the ID Act whatever be the terms agreed by the employee. On the other hand, the provisions of the ID Act has nothing to do with service conditions of managerial persons. For them the contract of employment will prevail. However, this does not mean that you can make an agreement with clauses which favour the employer only.
From India, Kannur
Dear Rohit,
You challenge your termination by filing a case in labour office/civil court as per the position. Let the court decide, whether the termination is right & justified as per terms of appointment.
The court has got ample authority to treat the clause good or bad in the light of action. Take an oppurtunity prove your employer wrong by giving a fight.
From India, Mumbai
You challenge your termination by filing a case in labour office/civil court as per the position. Let the court decide, whether the termination is right & justified as per terms of appointment.
The court has got ample authority to treat the clause good or bad in the light of action. Take an oppurtunity prove your employer wrong by giving a fight.
From India, Mumbai
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