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 years of work experience in that Faridabad 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 as soon as possible. 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 a minimum of 8% per annum 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!
Please 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 - in case he takes legal action!
From India, Delhi
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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 years of work experience in that Faridabad 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 as soon as possible. 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 a minimum of 8% per annum 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!
Please 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 - in case he takes legal action!
From India, Delhi
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Hello PLB,
First of all, please clarify/confirm if you [or rather your company] have 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 be the best to handle the smooth closure of the Faridabad company—frankly, 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 years was his performance—if it had been, he would have been thrown out long back, and this thread/posting wouldn't have been here at all. Let's not get into his reasons why he still continued with your company despite not getting the increments. As a company, your prime focus should 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 (and this, frankly, I can see will be a big if) you want to at least correct the wrong done to whatever extent possible now: please sit with him, sort the matters out amicably, and close the chapter.
You see the possibility of his going 'legal' as the biggest threat, but you forgot that he can even ignore the legal option and hit your company where it matters most for any company—credibility—through non-legal means. In these days of social media, that wouldn't be difficult to do at all, and remember that he would have the evidence about not getting the increments, etc. And for all you know, he might wish to pursue both options.
Take it from me...it will take ages to reestablish a battered credibility, especially when the hit comes from a senior employee and 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 lose, 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.
Regards,
TS
From India, Hyderabad
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1650First of all, please clarify/confirm if you [or rather your company] have 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 be the best to handle the smooth closure of the Faridabad company—frankly, 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 years was his performance—if it had been, he would have been thrown out long back, and this thread/posting wouldn't have been here at all. Let's not get into his reasons why he still continued with your company despite not getting the increments. As a company, your prime focus should 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 (and this, frankly, I can see will be a big if) you want to at least correct the wrong done to whatever extent possible now: please sit with him, sort the matters out amicably, and close the chapter.
You see the possibility of his going 'legal' as the biggest threat, but you forgot that he can even ignore the legal option and hit your company where it matters most for any company—credibility—through non-legal means. In these days of social media, that wouldn't be difficult to do at all, and remember that he would have the evidence about not getting the increments, etc. And for all you know, he might wish to pursue both options.
Take it from me...it will take ages to reestablish a battered credibility, especially when the hit comes from a senior employee and 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 lose, 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.
Regards,
TS
From India, Hyderabad
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Dear PLB,
I think this is one of the worst cases of exploitation by a company!!!
To quote/highlight from your post:
- "A senior managerial employee 'X' with 25 years of work experience in that Faridabad company alone and currently 57 years of age was given the responsibility for the closure.
- "We shut down one of our group's companies in Faridabad, and the process was smooth with full and final settlements 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 as soon as possible."
- "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 a minimum of 8% per annum 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."
- "Please 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 to abatement of such inhuman, immoral, or unprofessional 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 unethical activities of your company.
You may not realize it at this point in time, but sooner than you think, you will find yourself in the same spot.
Regards.
From India, Delhi
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I think this is one of the worst cases of exploitation by a company!!!
To quote/highlight from your post:
- "A senior managerial employee 'X' with 25 years of work experience in that Faridabad company alone and currently 57 years of age was given the responsibility for the closure.
- "We shut down one of our group's companies in Faridabad, and the process was smooth with full and final settlements 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 as soon as possible."
- "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 a minimum of 8% per annum 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."
- "Please 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 to abatement of such inhuman, immoral, or unprofessional 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 unethical activities of your company.
You may not realize it at this point in time, but sooner than you think, you will find yourself in the same spot.
Regards.
From India, Delhi
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I completely agree with the others on the site.
And I sincerely hope he files a legal case against your company, maybe 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 the Industrial Dispute Act, as he is a managerial employee and his salary is much above the specified limit. He may not be able to claim an increment with retrospective effect as there is no law saying that an increment must be given. Further, he should have raised this matter years ago (maybe he did).
He should be given full retrenchment compensation that is issued 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 done that. In addition, you will be liable for a 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 de facto employment.
To my mind (I hope TS and Raj agree), despite his not being a workman under the Industrial Dispute Act, a good labor lawyer will be able to take the matter to court. The courts as well as the government labor department look down on the exploitation of employees and are willing to give them enough leeway. I will appreciate if others can give details of which rule, etc., he can take legal action against the company.
From India, Mumbai
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And I sincerely hope he files a legal case against your company, maybe 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 the Industrial Dispute Act, as he is a managerial employee and his salary is much above the specified limit. He may not be able to claim an increment with retrospective effect as there is no law saying that an increment must be given. Further, he should have raised this matter years ago (maybe he did).
He should be given full retrenchment compensation that is issued 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 done that. In addition, you will be liable for a 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 de facto employment.
To my mind (I hope TS and Raj agree), despite his not being a workman under the Industrial Dispute Act, a good labor lawyer will be able to take the matter to court. The courts as well as the government labor department look down on the exploitation of employees and are willing to give them enough leeway. I will appreciate if others can give details of which rule, etc., he can take legal action against the company.
From India, Mumbai
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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 as they have influenced the bosses, hence creating this mess (Office Politics).
The company is willing to give full and final settlement, but he insists, and rightly so, that the salary needs to be incremented, then revised full and final with arrears. Legally speaking, should we give him those increments, arrears, etc. (morally, they should be given though)?
Also, does he need to be compensated (legally) for one year of service left in case 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 three 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!
I request all the members to give their legal opinions at the earliest!
Regards,
PLB
From India, Delhi
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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 as they have influenced the bosses, hence creating this mess (Office Politics).
The company is willing to give full and final settlement, but he insists, and rightly so, that the salary needs to be incremented, then revised full and final with arrears. Legally speaking, should we give him those increments, arrears, etc. (morally, they should be given though)?
Also, does he need to be compensated (legally) for one year of service left in case 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 three 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!
I request all the members to give their legal opinions at the earliest!
Regards,
PLB
From India, Delhi
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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, if he can show collusion and other revenue streams (he has to only get some of the terminated employees to appear in court as witnesses - they must be upset with the company for termination anyway), the court will probably decree in his favor.
The fact that he has been given a lower designation, etc., will also tilt the matter in his favor. It's better you pay him the full-year pay and let him leave; the cost to the company may be much higher otherwise.
From India, Mumbai
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The fact that he has been given a lower designation, etc., will also tilt the matter in his favor. It's better you pay him the full-year pay and let him leave; the cost to the company may be much higher otherwise.
From India, Mumbai
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Hi PLB,
I think most of the members have given you sufficient inputs that 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 employees and management. You are in a position to show management the flipside of making any wrong decisions. You have already received leads posted by the members.
Prepare a strong case for this employee - consolidate his past performance, his loyalty towards the company, and his extraordinary contributions to the smooth closure/settlement of the Gurgaon plant, etc. Propose that he should be given a smooth release and that all his dues are settled fairly. If you manage to help this individual get a fair settlement, I am sure you, as an HR professional, will feel greatly satisfied.
- Gia
From India, Pune
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I think most of the members have given you sufficient inputs that 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 employees and management. You are in a position to show management the flipside of making any wrong decisions. You have already received leads posted by the members.
Prepare a strong case for this employee - consolidate his past performance, his loyalty towards the company, and his extraordinary contributions to the smooth closure/settlement of the Gurgaon plant, etc. Propose that he should be given a smooth release and that all his dues are settled fairly. If you manage to help this individual get a fair settlement, I am sure you, as an HR professional, will feel greatly satisfied.
- Gia
From India, Pune
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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 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 yourself in the shoes of the employee and then come to a conclusion.
Regards,
Preetam Deshpande
From India, Mumbai
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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 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 yourself in the shoes of the employee and then come to a conclusion.
Regards,
Preetam Deshpande
From India, Mumbai
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Legally, he can get an increase for the past five years as part of the final settlement, as you have done the same for others. He can also receive the next year's salary if you force him by using unethical means. Additionally, he can receive further compensation for harassing him and causing mental agony willfully (your posting bears testimony to this). It may take a few years, but I am confident that I can win his case. The longer you take, the more interest you may have to pay for the same. Probably, he must be aware of this legal position.
From India, Chennai
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From India, Chennai
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