This is to inform that my wife was working in a pharma company. They recruited her on permanent roles initially as a replacement for a lady who went on maternity leave. However, once the lady came back after 4 months, my wife, who is an Executive Assistant to the COO, started facing harassment at work with the intention of forcing her to resign. One day, they orally informed her that they would terminate her on performance grounds and then took a physical handover of the company assets. As her husband, I raised a complaint to HR regarding the harassment at work, with copies marked to the Commissioner of Police, Commissioner of Labour, and the National Woman Commissioner.
We subsequently lodged a written complaint with the Commissioner of Labour and the National Women's Commission. Two weeks later, they sent a termination letter citing absconding as the reason. We presented the same letter to the Labour commissioner, who requested a joint meeting. The Assistant Commissioner stated that they could terminate the employee if they are in the probation period as per the appointment letter, which mentioned a 6-month probation period and the requirement of a 90-day notice for either party to leave the company.
Based on this, we sought 90 days' payment in lieu of termination. However, I now feel the Labour Commission is biased. Kindly advise on how to proceed if we do not receive justice at the Labour Commissioner's office.
From India, Hyderabad
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We subsequently lodged a written complaint with the Commissioner of Labour and the National Women's Commission. Two weeks later, they sent a termination letter citing absconding as the reason. We presented the same letter to the Labour commissioner, who requested a joint meeting. The Assistant Commissioner stated that they could terminate the employee if they are in the probation period as per the appointment letter, which mentioned a 6-month probation period and the requirement of a 90-day notice for either party to leave the company.
Based on this, we sought 90 days' payment in lieu of termination. However, I now feel the Labour Commission is biased. Kindly advise on how to proceed if we do not receive justice at the Labour Commissioner's office.
From India, Hyderabad
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The Labour Commissioner is not biased. A probationer's service is terminable without any notice or showing any cause. This is the industry practice and not the rules as per government service rules. However, the HR in the company has committed an error by sending a termination letter quoting the reason for termination as "poor performance". This can be objected to because this should cause stigma and this is not termination simpliciter. If she was supposed to be terminated on account of poor performance, the company should have given a notice and asked her to explain her stand. The HR should have conducted an enquiry or given the employee all possible opportunities to be heard. That is the mistake that the HR had done. Moreover, the HR had committed a blunder by appointing an employee with a probation clause, etc., as if the job is of a permanent nature. The HR should have given an adhoc employment or offered a fixed-term contract employment for 4 months. If the offer was for 4 months, no question would have arisen as to whether the employee should be given any advance notice or on what grounds she should be terminated, etc., but her service would have terminated automatically on the expiry of 4 months. In the appointment order, the probation is mentioned, and it is also stated that during the probation period the service is terminable without notice. But what is it mentioned 90 days notice in the next para? It should be like, on confirmation, the service shall be terminated by giving 3 months' notice. This is the mistake that the HR has committed.
Now, regarding harassment, asking an employee to leave is not harassment, and this can happen to any person who is not performing. Just because of this if the husbands start complaining against the HR before the District Collector or Women's Commission or Local Complaints Committee constituted as per the Prevention of Sexual Harassment at Workplace Act, the entire HR fraternity will be in trouble. If that is the situation, then the HR forums will raise, and they will start sending messages which may even lead to a complete standstill in her career. You as a husband (please read what you have written) have no right to ask for the rights of your wife at her company; you can exercise your rights at home.
This is a case study for many HR persons who take steps without reading the clauses of appointment orders. If you refer to the case Anand Lenin Vedanayagam Vs The Registrar, Pondicherry University, the Madras High Court has found that the employer is free to terminate the service of a probationer without assigning any reasons, but when it comes to a situation that the termination is on the charges of any misconduct, the act of termination should be done after affording opportunities to the employee to be heard since the termination in the latter case is a stigmatic order and not a termination simpliciter.
Madhu.T.K
From India, Kannur
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4769Now, regarding harassment, asking an employee to leave is not harassment, and this can happen to any person who is not performing. Just because of this if the husbands start complaining against the HR before the District Collector or Women's Commission or Local Complaints Committee constituted as per the Prevention of Sexual Harassment at Workplace Act, the entire HR fraternity will be in trouble. If that is the situation, then the HR forums will raise, and they will start sending messages which may even lead to a complete standstill in her career. You as a husband (please read what you have written) have no right to ask for the rights of your wife at her company; you can exercise your rights at home.
This is a case study for many HR persons who take steps without reading the clauses of appointment orders. If you refer to the case Anand Lenin Vedanayagam Vs The Registrar, Pondicherry University, the Madras High Court has found that the employer is free to terminate the service of a probationer without assigning any reasons, but when it comes to a situation that the termination is on the charges of any misconduct, the act of termination should be done after affording opportunities to the employee to be heard since the termination in the latter case is a stigmatic order and not a termination simpliciter.
Madhu.T.K
From India, Kannur
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A probationer can be terminated if one's performance is not satisfactory during the period of probation. Nowadays it has become a trend in the industry "hire and fire'' on ground of probation. In the instant case HR department has committed several faults i.e. issue of show cause notice as to why she brought her husband, Performance Improvement Plan and termination on the grounds of absconding. This case can be tried in the State labour court/Tribunal against the order of the Labour commissioner, as the concern considers the judgement is biased. Now the concern has to take the help of a good Law Consultant dealing with the labour matters with all documents including the appointment letter.
The laws & rules are same to Employer & Employee both. But those workman shown courage to challenge have yield result. In this matter the lady must fight against her “Termination”. And in the matter Mr. Madhu T.K has rightly pointed out some key points, fight on ground of those averments, rather claim of three month notice etc. If the appointment letter have clause of three month notice has to give notice prior to termination if terminating before the probation period.
From India, Mumbai
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The laws & rules are same to Employer & Employee both. But those workman shown courage to challenge have yield result. In this matter the lady must fight against her “Termination”. And in the matter Mr. Madhu T.K has rightly pointed out some key points, fight on ground of those averments, rather claim of three month notice etc. If the appointment letter have clause of three month notice has to give notice prior to termination if terminating before the probation period.
From India, Mumbai
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Dear colleague,
As rightly captured in the observations above, the company has chosen to flout the conditions in the appointment letter and the principles of natural justice in terminating the lady. The acts of the management of terminating services without giving a fair opportunity to explain the alleged poor performance and without giving notice of 90 days are a prima facie blatant violation of legal provisions and are the most fitting case for a challenge in the Labour court. The high-handedness on the part of the errant management must be taught a lesson. Please fight on all fronts - legal and social - until management is brought to their knees.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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As rightly captured in the observations above, the company has chosen to flout the conditions in the appointment letter and the principles of natural justice in terminating the lady. The acts of the management of terminating services without giving a fair opportunity to explain the alleged poor performance and without giving notice of 90 days are a prima facie blatant violation of legal provisions and are the most fitting case for a challenge in the Labour court. The high-handedness on the part of the errant management must be taught a lesson. Please fight on all fronts - legal and social - until management is brought to their knees.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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HR department has shown a lack of professional competence. Why issue unnecessary letters to a probationary employee? Issuing a PIP letter indicated a desire to retain the employee. Otherwise, an employee on probation could be removed as per the offer letter. If the company has stated a 90-day notice period, they need to honor it and pay 90 days' salary or keep the employee for 90 more days and then decide to show the exit path or retain them, etc., as they feel. Lack of professionalism by HR is obviously clear, and they need to read more on law and HR rules first.
From India, Pune
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From India, Pune
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Dear Friend,
1. Everybody above has endorsed that the service of an employee can be terminated on the grounds of performance. That is no doubt absolutely correct, but this authority with the management is not unfettered. Non-performance has to be justified in the form of recorded feedback and a written commitment from the employee that he/she intends to work hard to improve on the feedback. This is nowhere mentioned in the post. In case prior documented feedback is not there, it's a strong case to fight.
2. Since it was a leave vacancy, the HR should have appointed on a fixed-term vacancy instead of against a permanent vacancy as they did in this case (Blunder on the part of HR, nowadays the HR thinks that they can get away with anything they do and nobody can stop them).
3. The husband has no legal authority to intervene in the matter and make complaints. His actions have further aggravated the situation.
4. Normally, companies have a 15-day or 30-day clause for termination during probation. I doubt there is a 90-day clause. Please share the relevant clauses of the appointment order to advise properly.
5. Assuming that there is a 90-day clause, then you have a point to take the matter to court. In case your wife comes under the category of workmen, then to the Labour Court/Tribunal, and in case she does not come under the workmen category, the civil court for claiming the compensation.
Warm Regards,
Bharat Gera
HR Consultant
9322404765
From India, Thane
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1. Everybody above has endorsed that the service of an employee can be terminated on the grounds of performance. That is no doubt absolutely correct, but this authority with the management is not unfettered. Non-performance has to be justified in the form of recorded feedback and a written commitment from the employee that he/she intends to work hard to improve on the feedback. This is nowhere mentioned in the post. In case prior documented feedback is not there, it's a strong case to fight.
2. Since it was a leave vacancy, the HR should have appointed on a fixed-term vacancy instead of against a permanent vacancy as they did in this case (Blunder on the part of HR, nowadays the HR thinks that they can get away with anything they do and nobody can stop them).
3. The husband has no legal authority to intervene in the matter and make complaints. His actions have further aggravated the situation.
4. Normally, companies have a 15-day or 30-day clause for termination during probation. I doubt there is a 90-day clause. Please share the relevant clauses of the appointment order to advise properly.
5. Assuming that there is a 90-day clause, then you have a point to take the matter to court. In case your wife comes under the category of workmen, then to the Labour Court/Tribunal, and in case she does not come under the workmen category, the civil court for claiming the compensation.
Warm Regards,
Bharat Gera
HR Consultant
9322404765
From India, Thane
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