Hi all,
I trust that this message finds you all in good health. I was working as a sales manager in a Bangalore-based KPO. I went on an unplanned leave due to a serious emergency. I kept my company well-informed through my emails and calls about my whereabouts. However, during this leave, I received a call informing me that the company had decided to release me. Upon my return, I was informed that they had already initiated my resignation and pressured me to resign formally. When I refused to do so, I was threatened with termination.
I have submitted all documents supporting my reason for absence, but they still forced me to resign. Can I take any legal steps against this situation?
From India, Bangalore
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I trust that this message finds you all in good health. I was working as a sales manager in a Bangalore-based KPO. I went on an unplanned leave due to a serious emergency. I kept my company well-informed through my emails and calls about my whereabouts. However, during this leave, I received a call informing me that the company had decided to release me. Upon my return, I was informed that they had already initiated my resignation and pressured me to resign formally. When I refused to do so, I was threatened with termination.
I have submitted all documents supporting my reason for absence, but they still forced me to resign. Can I take any legal steps against this situation?
From India, Bangalore
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Dear Rahul,
Every employee should note that leave is a privilege and not an entitlement. From the organization's side, they should communicate this to all employees through standing orders or the employee handbook.
For whatever emergency you had, you could have spoken to the authorities concerned and obtained approval for your leave. Unplanned absence, or rather unauthorized absence of an employee, throws the operations of the company out of gear. How to handle this situation? Moreover, for a person of the stature of a manager, hardly is this expected.
Nevertheless, your company should have conducted a domestic inquiry before your removal. It appears that they did not even give you a show-cause notice. This is bad as per the law. But then the IT/ITES sector is better known for giving a cold shoulder to labor laws. Therefore, talking on this point is meaningless.
From the organization's side, I interpret their action from two angles. One is that they wanted to remove you anyway. Your unplanned (practically unauthorized) absence was an excellent opportunity for them, and they wielded the authority to hit you below the belt.
The second interpretation could be to send a signal to one and all. For any kind of indiscipline, the authority will come down heavily. Next time, other employees will think twice before committing an act of indiscipline.
You have not written about your job. How many months or years did you work there, how were your relations with superior authority, what type of psyche did your top boss have, etc.? Many things depend on that also. Secondly, removal from the job for unauthorized absence, is this the norm in your company, or have you been singled out? What is the level of your performance? Were you an excellent performer?
I recommend you obtain an interview with the highest authority like the VP, GM, etc., and ask for an apology. This is a better method of getting reinstated. If this happens, well and good, but then you will have less say in the organization's matters. Reinstatement comes with clipped wings as well. Therefore, you need to be doubly cautious to avoid any kind of effrontery.
All the best!
Dinesh V Divekar
From India, Bangalore
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8032Every employee should note that leave is a privilege and not an entitlement. From the organization's side, they should communicate this to all employees through standing orders or the employee handbook.
For whatever emergency you had, you could have spoken to the authorities concerned and obtained approval for your leave. Unplanned absence, or rather unauthorized absence of an employee, throws the operations of the company out of gear. How to handle this situation? Moreover, for a person of the stature of a manager, hardly is this expected.
Nevertheless, your company should have conducted a domestic inquiry before your removal. It appears that they did not even give you a show-cause notice. This is bad as per the law. But then the IT/ITES sector is better known for giving a cold shoulder to labor laws. Therefore, talking on this point is meaningless.
From the organization's side, I interpret their action from two angles. One is that they wanted to remove you anyway. Your unplanned (practically unauthorized) absence was an excellent opportunity for them, and they wielded the authority to hit you below the belt.
The second interpretation could be to send a signal to one and all. For any kind of indiscipline, the authority will come down heavily. Next time, other employees will think twice before committing an act of indiscipline.
You have not written about your job. How many months or years did you work there, how were your relations with superior authority, what type of psyche did your top boss have, etc.? Many things depend on that also. Secondly, removal from the job for unauthorized absence, is this the norm in your company, or have you been singled out? What is the level of your performance? Were you an excellent performer?
I recommend you obtain an interview with the highest authority like the VP, GM, etc., and ask for an apology. This is a better method of getting reinstated. If this happens, well and good, but then you will have less say in the organization's matters. Reinstatement comes with clipped wings as well. Therefore, you need to be doubly cautious to avoid any kind of effrontery.
All the best!
Dinesh V Divekar
From India, Bangalore
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There are some things unclear:
- Have you resigned?
- What is the meaning of the term "initiated resignation"?
If they have forced you to resign, which means you have submitted the resignation, then there is little that you can do. You submitted resignation to avoid a termination in your employment history. That was your choice.
If you have not resigned, then you can approach top management as Devakar suggested. However, then you risk termination. Few companies want to recruit an employee who has been terminated, specifically for unauthorized leave.
You can raise an industrial dispute after illegal termination. But you are a manager, so I don't think you have the protection. Even if you did, it really won't help in the long term. At most, you will get back wages and a hostile management which will find a reason to terminate you again.
From India, Mumbai
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- Have you resigned?
- What is the meaning of the term "initiated resignation"?
If they have forced you to resign, which means you have submitted the resignation, then there is little that you can do. You submitted resignation to avoid a termination in your employment history. That was your choice.
If you have not resigned, then you can approach top management as Devakar suggested. However, then you risk termination. Few companies want to recruit an employee who has been terminated, specifically for unauthorized leave.
You can raise an industrial dispute after illegal termination. But you are a manager, so I don't think you have the protection. Even if you did, it really won't help in the long term. At most, you will get back wages and a hostile management which will find a reason to terminate you again.
From India, Mumbai
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Dear Mr. Saswata Banerjee,
My comments are with respect to the following paragraph of your post:
If they have forced you to resign, which means you have submitted the resignation, then there is little that you can do. You submitted resignation to avoid a termination in your employment history. That was your choice.
Comments: - To avoid the domestic enquiry, companies resorted to forcing the employees to submit resignations. However, when such employees approached the labour court and stated that their resignations were taken forcibly, the courts have ruled that if the employee had committed some misconduct, then what prevented them from conducting the domestic enquiry to prove the misconduct? Since the enquiry was not conducted, labour courts have treated the resignations as null and void, and their services were restored with back wages.
While I do not have the exact case number, I have discussed the above issue with a lawyer who handles labour cases.
For the case under discussion, the poster's termination is illegal. However, court cases in India do not progress quickly, which prevents aggrieved employees from approaching the court and seeking justice. Judicial tardiness benefits the employers, and they take complete advantage of it.
The second challenge is the psychology of Indians. We generally frown upon people who file suits against their employers. If a job applicant discloses that he/she has filed a suit against their former employer, the chances of getting a job are very dismal. In the erstwhile era, it was not the rapist but the victim/survivor of rape who attracted social stigma. Employers in India, in general, and HR in particular, cherish this psychology and look down upon job applicants who stand up for their rights.
Thanks,
Dinesh Divekar
From India, Bangalore
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My comments are with respect to the following paragraph of your post:
If they have forced you to resign, which means you have submitted the resignation, then there is little that you can do. You submitted resignation to avoid a termination in your employment history. That was your choice.
Comments: - To avoid the domestic enquiry, companies resorted to forcing the employees to submit resignations. However, when such employees approached the labour court and stated that their resignations were taken forcibly, the courts have ruled that if the employee had committed some misconduct, then what prevented them from conducting the domestic enquiry to prove the misconduct? Since the enquiry was not conducted, labour courts have treated the resignations as null and void, and their services were restored with back wages.
While I do not have the exact case number, I have discussed the above issue with a lawyer who handles labour cases.
For the case under discussion, the poster's termination is illegal. However, court cases in India do not progress quickly, which prevents aggrieved employees from approaching the court and seeking justice. Judicial tardiness benefits the employers, and they take complete advantage of it.
The second challenge is the psychology of Indians. We generally frown upon people who file suits against their employers. If a job applicant discloses that he/she has filed a suit against their former employer, the chances of getting a job are very dismal. In the erstwhile era, it was not the rapist but the victim/survivor of rape who attracted social stigma. Employers in India, in general, and HR in particular, cherish this psychology and look down upon job applicants who stand up for their rights.
Thanks,
Dinesh Divekar
From India, Bangalore
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I have always maintained that decisions by courts are more dependent on the lawyer you have than the jurisprudence (of course not where the facts are clearly and visibly against you). The lawyer will simply show that mails were exchanged and discussions on the phone, also that the employee was given a choice of resigning or facing a domestic enquiry and possible termination, and he chose the latter. Adequate documentation can very easily be generated to support it.
Other than that, I agree with all of what you have stated. The possibility of winning in court and actually gaining is significantly low and rarely rewarding, more so in KPO software and other knowledge sectors. In a factory scenario, for worker level, it is a different matter. Here, as he is a manager, which adds to the problem.
A lawyer will rarely say, "Don't file a case, you can't win :)".
From India, Mumbai
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Other than that, I agree with all of what you have stated. The possibility of winning in court and actually gaining is significantly low and rarely rewarding, more so in KPO software and other knowledge sectors. In a factory scenario, for worker level, it is a different matter. Here, as he is a manager, which adds to the problem.
A lawyer will rarely say, "Don't file a case, you can't win :)".
From India, Mumbai
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KPOs are covered by the Shops and Commercial Establishment Act, standing orders. You were not absent without intimation. You had properly informed in writing as well. Do you have any evidence of a demand for resignation: written/audiovisual? Forcing someone to resign is an offense. Did you state in your resignation that it was being submitted because Mr./Ms. ... asked you to resign? Or have you mentioned in subsequent communications that the resignation was obtained through force, coercion, or threats? Is prolonged absence stated as a reason for termination in the standing orders of the company or service rules and regulations? Did you download a screenshot showing that someone else entered the resignation on your behalf? It is advisable to consult a competent Labor Law Consultant or a lawyer specializing in service matters with all documents on record and provide inputs in person. You can also approach employees' or trade unions.
From India, Chandigarh
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From India, Chandigarh
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