Dear Seniors, We are facing a unique situation.
Early last year we shut down one of our group's companies in Faridabad (I am from a different business-vertical of the same group based in Gurgaon) and the process was smooth with full and finals of all the workmen and other employees taking place smoothly. A senior managerial employee 'X' with 25 yrs of work-ex in that Fbd company alone and currently 57 years of age was given the responsibility for the closure.
Now, 'X' is working with us in Gurgaon but senior people here and the bosses want to do away with him asap. He hasn't joined us yet formally as he refuses to sign the papers for this company until his dues are settled for the previous company. The catch here is that his salary increment wasn't done for the last 5 years in the previous company and he wants to include those whopping arrears (calculated at minimum 8% p.a for each of the last 5 years) in the final settlement as other employees were given due increments in those 5 years.
Here we have offered him a marginal hike to be effective from April 2013. Also, we on our part, have used every trick in the bag viz humiliating him, making him work for a smaller post than his previous designation, taking many of the facilities back but the old man refuses to budge!
Pls. suggest how to go about this and what are the legal avenues available to him and us in case we terminate him lock stock and barrel! Do we need to pay him for 1 year of service left as well? My company is afraid - incase he takes legal action!
From India, Delhi
Early last year we shut down one of our group's companies in Faridabad (I am from a different business-vertical of the same group based in Gurgaon) and the process was smooth with full and finals of all the workmen and other employees taking place smoothly. A senior managerial employee 'X' with 25 yrs of work-ex in that Fbd company alone and currently 57 years of age was given the responsibility for the closure.
Now, 'X' is working with us in Gurgaon but senior people here and the bosses want to do away with him asap. He hasn't joined us yet formally as he refuses to sign the papers for this company until his dues are settled for the previous company. The catch here is that his salary increment wasn't done for the last 5 years in the previous company and he wants to include those whopping arrears (calculated at minimum 8% p.a for each of the last 5 years) in the final settlement as other employees were given due increments in those 5 years.
Here we have offered him a marginal hike to be effective from April 2013. Also, we on our part, have used every trick in the bag viz humiliating him, making him work for a smaller post than his previous designation, taking many of the facilities back but the old man refuses to budge!
Pls. suggest how to go about this and what are the legal avenues available to him and us in case we terminate him lock stock and barrel! Do we need to pay him for 1 year of service left as well? My company is afraid - incase he takes legal action!
From India, Delhi
Hello PLB,
First of all, pl clarify/confirm IF you [or rather your company] has been FAIR to this employee?
To begin with there haven't been any increments for 5 years.
Then, when you NEEDED him, you found him to the best to handle the SMOOTH closure of the Faridabad company--to be frank, doesn't this 'SOUND' like 'using him' when his services are needed?
And, now he is not needed anymore.
I don't think the reason for not giving him any increment for 5 yrs was his performance--had it been so, he would have been thrown-out long back & this thread/posting wouldn't have been there at all. Let's not get into HIS reason(s) why he still continued with your company despite not getting the increments. As a Company, your prime focus would be the company's interest.
And purely from the HR angle, do YOU think this was the right thing to do ".......have used every trick in the bag viz humiliating him, making him work for a smaller post than his previous designation......."? And when any employee either pays or tries to pay back in the same coin, the Employer objects--AS IF the company followed the Gospel Truth.
In a nutshell, the company DOESN'T want him, BUT wants HIM to bear the cross for the company's benefits.
I would suggest this...IF [& this, frankly, I can see will be a BIG IF] you want to at least CORRECT the wrong done to whatever extent possible NOW: pl sit with him & sort the matters out amicably & close the chapter.
You see the possibility of his going 'legal' as the biggest threat, but forgot that he can even ignore the legal option & hit your company where it matters most for any company [CREDIBILITY] thru non-legal means. In these days of Social Media, that wouldn't be difficult to do at all & remember that he would have the evidence about not getting the increments, etc. And for all you know, he might wish to pursue BOTH the options.
Take it from me..it will take ages to reestablish a battered credibility, especially when the hit comes from senior employee & one who has handled the rest of the staff will surely have their empathy/sympathy.
There's an old saying that means: 'when one realizes there's nothing else to loose, forget about gaining, you can't predict the actions of such a person'.
And like the Bible says: As you Sow, so you Reap.
Hope you get the point.
Rgds,
TS
From India, Hyderabad
1637First of all, pl clarify/confirm IF you [or rather your company] has been FAIR to this employee?
To begin with there haven't been any increments for 5 years.
Then, when you NEEDED him, you found him to the best to handle the SMOOTH closure of the Faridabad company--to be frank, doesn't this 'SOUND' like 'using him' when his services are needed?
And, now he is not needed anymore.
I don't think the reason for not giving him any increment for 5 yrs was his performance--had it been so, he would have been thrown-out long back & this thread/posting wouldn't have been there at all. Let's not get into HIS reason(s) why he still continued with your company despite not getting the increments. As a Company, your prime focus would be the company's interest.
And purely from the HR angle, do YOU think this was the right thing to do ".......have used every trick in the bag viz humiliating him, making him work for a smaller post than his previous designation......."? And when any employee either pays or tries to pay back in the same coin, the Employer objects--AS IF the company followed the Gospel Truth.
In a nutshell, the company DOESN'T want him, BUT wants HIM to bear the cross for the company's benefits.
I would suggest this...IF [& this, frankly, I can see will be a BIG IF] you want to at least CORRECT the wrong done to whatever extent possible NOW: pl sit with him & sort the matters out amicably & close the chapter.
You see the possibility of his going 'legal' as the biggest threat, but forgot that he can even ignore the legal option & hit your company where it matters most for any company [CREDIBILITY] thru non-legal means. In these days of Social Media, that wouldn't be difficult to do at all & remember that he would have the evidence about not getting the increments, etc. And for all you know, he might wish to pursue BOTH the options.
Take it from me..it will take ages to reestablish a battered credibility, especially when the hit comes from senior employee & one who has handled the rest of the staff will surely have their empathy/sympathy.
There's an old saying that means: 'when one realizes there's nothing else to loose, forget about gaining, you can't predict the actions of such a person'.
And like the Bible says: As you Sow, so you Reap.
Hope you get the point.
Rgds,
TS
From India, Hyderabad
Dear PLB
I think this one of the worst cases of exploitation by a company !!!
To quote/highlight from your post :
-- "A senior managerial employee 'X' with 25 yrs of work-ex in that Fbd company alone and currently 57 years of age was given the responsibility for the closure.
-- "we shut down one of our group's company in Faridabad and the process was smooth with full and finals of all the workmen and other employees taking place smoothly.
-- " Now 'X' is working with us in gurgaon but senior people here and the bosses want to do away with him asap."
-- "" his salary increment wasn't done for the last 5 years in previous company and he wants to include those whopping arrears (calculated at minimum 8% p.a for each of the last 5 years) in the final settlement as other employees were given due increments in those 5 years.
-- " we have offered him a marginal hike to be effective from April 2013."
-- " we on our part, have used every trick in the bag viz humiliating him, making him work for a smaller post than his previous designation, taking many of the facilities back but the old man refuses to budge"'
-- "Pls. suggest how to go about this .....
I am at a loss to understand, what kind of assistance you seek from CiteHR members ??
Do you think everyone is so depraved as to be a party in abatement of such in-human, immoral or un-professional tasks ??
I think you do not even understand what you are doing or what you are asking for ??
Considering that you are different from your UNETHICAL company; the only suggestion one can give you is; there is no dearth of companies; if you are well-qualified and competent enough. you can find several other opportunities. Do not be a party or an active participant in such un-ethical activities of your company.
You may not realize it at this point of time; but sooner than you think,
you will find yourself in the same spot.
Regards.
From India, Delhi
I think this one of the worst cases of exploitation by a company !!!
To quote/highlight from your post :
-- "A senior managerial employee 'X' with 25 yrs of work-ex in that Fbd company alone and currently 57 years of age was given the responsibility for the closure.
-- "we shut down one of our group's company in Faridabad and the process was smooth with full and finals of all the workmen and other employees taking place smoothly.
-- " Now 'X' is working with us in gurgaon but senior people here and the bosses want to do away with him asap."
-- "" his salary increment wasn't done for the last 5 years in previous company and he wants to include those whopping arrears (calculated at minimum 8% p.a for each of the last 5 years) in the final settlement as other employees were given due increments in those 5 years.
-- " we have offered him a marginal hike to be effective from April 2013."
-- " we on our part, have used every trick in the bag viz humiliating him, making him work for a smaller post than his previous designation, taking many of the facilities back but the old man refuses to budge"'
-- "Pls. suggest how to go about this .....
I am at a loss to understand, what kind of assistance you seek from CiteHR members ??
Do you think everyone is so depraved as to be a party in abatement of such in-human, immoral or un-professional tasks ??
I think you do not even understand what you are doing or what you are asking for ??
Considering that you are different from your UNETHICAL company; the only suggestion one can give you is; there is no dearth of companies; if you are well-qualified and competent enough. you can find several other opportunities. Do not be a party or an active participant in such un-ethical activities of your company.
You may not realize it at this point of time; but sooner than you think,
you will find yourself in the same spot.
Regards.
From India, Delhi
I completely agree with the others on the site.
And I sincerely hope he files a legal case against your company, may be naming you personally
However, in view of enhancing our knowledge, I would like the group to discuss what is the legal position the employee has.
To my mind, he will not be covered in industrial dispute act, as he is managerial employee and salary much above the specified limit. He may not be able to claim increment with retrospective effect as there is no law saying that increment must be given. Further, he should have raised this matter years ago (may be he did)
He should be given full retrenchment compensation that issue to him, plus gratuity. There is no doubt about that.
About the legality of his transfer to the new office, it depends on whether it is the same company or a different one. Not being relieved from the earlier company means that he is due to get salary from there till the date he is relieved. I assume you have not don't that. And in addition you will be liable for penalty and interest on the delay in full and final settlement.
In the new company, he will have rights to all dues irrespective of whether he has signed the documents or not. His working here and your acceptance in the new set up as a defacto employment.
To my mind (I hope TS and Raj agree), in spite of his not being a workman under the industrial dispute act, a good labour lawyer will be able to take the matter to court. The courts as well as the government labour department look down on exploitation of employees and are willing to give then enough of leeway. I will appreciate if others can give details of which rule etc he can take legal action against the company
From India, Mumbai
And I sincerely hope he files a legal case against your company, may be naming you personally
However, in view of enhancing our knowledge, I would like the group to discuss what is the legal position the employee has.
To my mind, he will not be covered in industrial dispute act, as he is managerial employee and salary much above the specified limit. He may not be able to claim increment with retrospective effect as there is no law saying that increment must be given. Further, he should have raised this matter years ago (may be he did)
He should be given full retrenchment compensation that issue to him, plus gratuity. There is no doubt about that.
About the legality of his transfer to the new office, it depends on whether it is the same company or a different one. Not being relieved from the earlier company means that he is due to get salary from there till the date he is relieved. I assume you have not don't that. And in addition you will be liable for penalty and interest on the delay in full and final settlement.
In the new company, he will have rights to all dues irrespective of whether he has signed the documents or not. His working here and your acceptance in the new set up as a defacto employment.
To my mind (I hope TS and Raj agree), in spite of his not being a workman under the industrial dispute act, a good labour lawyer will be able to take the matter to court. The courts as well as the government labour department look down on exploitation of employees and are willing to give then enough of leeway. I will appreciate if others can give details of which rule etc he can take legal action against the company
From India, Mumbai
Dear Members,
I agree with your views but the problem is he is an upright person (CAG like) and other senior level employees' revenue streams might get disturbed and they have influenced the bosses and hence this mess! (Office Politics)
The company is willing to give full and final but he insists and rightly so that the salary needs to be incremented and then revised full and final and arrears. Legally speaking, should we give him those increments, arrears etc. (morally they should be given though)?
Also, does he needs to be compensated (legally) for 1 year of service left, incase he is not willing to continue with a lower designation because even if he decides to work with a lower designation I am 100% sure he won't be allowed to work for even 3 months as people are already baying for his blood for obvious reasons.
One also feels for him as at this age it will be difficult for him to find another job!
Request all the members to give their legal opinions at the earliest!
Regards,
PLB
From India, Delhi
I agree with your views but the problem is he is an upright person (CAG like) and other senior level employees' revenue streams might get disturbed and they have influenced the bosses and hence this mess! (Office Politics)
The company is willing to give full and final but he insists and rightly so that the salary needs to be incremented and then revised full and final and arrears. Legally speaking, should we give him those increments, arrears etc. (morally they should be given though)?
Also, does he needs to be compensated (legally) for 1 year of service left, incase he is not willing to continue with a lower designation because even if he decides to work with a lower designation I am 100% sure he won't be allowed to work for even 3 months as people are already baying for his blood for obvious reasons.
One also feels for him as at this age it will be difficult for him to find another job!
Request all the members to give their legal opinions at the earliest!
Regards,
PLB
From India, Delhi
Legally speaking, as I have posted earlier, he does not have a right to get the increment
But if he can show harassment. Or more so fine can show collusion and other revenue streams (he has to only get some of the terminated employees to appear in court as witness - they must be pissed with company for termination anyway), the court will probably decree in his favour.
The fact that he has been given lower designation, etc also will tilt the matter in his favour. It's better you pay him full year pay and let him leave, the cost to the company may be much higher otherwise
From India, Mumbai
But if he can show harassment. Or more so fine can show collusion and other revenue streams (he has to only get some of the terminated employees to appear in court as witness - they must be pissed with company for termination anyway), the court will probably decree in his favour.
The fact that he has been given lower designation, etc also will tilt the matter in his favour. It's better you pay him full year pay and let him leave, the cost to the company may be much higher otherwise
From India, Mumbai
Hi PLB :
I think most of the members have given you sufficient inputs which should enable you as an ethical HR professional to steer this matter in the right direction.
The role of HR is to maintain a fair balance between employee and Management. You are in a position to show Management the flipside of taking any wrong decision. You have already got the leads posted by the members. Prepare a strong case of this employee - consolidate his past performance, his loyalty towards the company and his extraordinary contribution for the smooth closure/settlement of the Gurgaon plant etc. and propose that he should be given a smooth release and all his dues are settled fairly. If you manage to help this individual get a fair settlement I am sure you as a HR professional will feel greatly satisfied.
- Gia
From India, Pune
I think most of the members have given you sufficient inputs which should enable you as an ethical HR professional to steer this matter in the right direction.
The role of HR is to maintain a fair balance between employee and Management. You are in a position to show Management the flipside of taking any wrong decision. You have already got the leads posted by the members. Prepare a strong case of this employee - consolidate his past performance, his loyalty towards the company and his extraordinary contribution for the smooth closure/settlement of the Gurgaon plant etc. and propose that he should be given a smooth release and all his dues are settled fairly. If you manage to help this individual get a fair settlement I am sure you as a HR professional will feel greatly satisfied.
- Gia
From India, Pune
Dear member
As clearly opined by other team members there are two aspects to your issue
1. Legal - Here the employee has a very slender chance to get much out of you. Courts can at the most grant him some relief but that would not be adequate.
2. Ethical - Do you really justify the way the employee has been treated. Put your self in the shoes of the employee and then come to a conclusion.
Regards
Preetam Deshpande
From India, Mumbai
As clearly opined by other team members there are two aspects to your issue
1. Legal - Here the employee has a very slender chance to get much out of you. Courts can at the most grant him some relief but that would not be adequate.
2. Ethical - Do you really justify the way the employee has been treated. Put your self in the shoes of the employee and then come to a conclusion.
Regards
Preetam Deshpande
From India, Mumbai
Legally he can get
1. Increase for the past five years as part of final settlement as you have done the same to others
2. Get next one years salary as well if you force him by using unethical means
3. Get further compensation for harassing him and causing mental agony willfully ( your posting bears testimony for the same)
It may take few years, but I sure can win his case . More time you take, you may have pay interest for the same
Probably he must be aware of this legal position.
From India, Chennai
1. Increase for the past five years as part of final settlement as you have done the same to others
2. Get next one years salary as well if you force him by using unethical means
3. Get further compensation for harassing him and causing mental agony willfully ( your posting bears testimony for the same)
It may take few years, but I sure can win his case . More time you take, you may have pay interest for the same
Probably he must be aware of this legal position.
From India, Chennai
Community Support and Knowledge-base on business, career and organisational prospects and issues - Register and Log In to CiteHR and post your query, download formats and be part of a fostered community of professionals.
Legal Clarification on Absconding Employee, Contract Labour Engagement & Leave Entitlement Ammen.pdf
Employee Appraisal Form new.doc