Greetings!
I am trying to help an acquaintance and need your advice. A candidate worked in a private limited company for one month without an offer letter and appointment letter. In good faith, he kept working on the verbal confirmation of the CEO, his reporting manager. He kept following up for the appointment letter regularly and was told that it would be issued soon.
Around the 28th day of his working, the CEO summons the candidate and declares that the candidate is being dismissed for non-performance without citing clear reasons. There is no paperwork in favor of the candidate. The CEO declares that the candidate need not report to work from the 31st day and that the one-month salary will be paid. However, when the candidate inquires, the CEO does not give a clear date of when the salary will be issued. It has been more than a week now, but the employer is not responding.
What should the candidate do? What are his legal rights? Is the candidate legally eligible for his salary? Please advise on the course of action to be taken.
Regards,
Ajay
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1I am trying to help an acquaintance and need your advice. A candidate worked in a private limited company for one month without an offer letter and appointment letter. In good faith, he kept working on the verbal confirmation of the CEO, his reporting manager. He kept following up for the appointment letter regularly and was told that it would be issued soon.
Around the 28th day of his working, the CEO summons the candidate and declares that the candidate is being dismissed for non-performance without citing clear reasons. There is no paperwork in favor of the candidate. The CEO declares that the candidate need not report to work from the 31st day and that the one-month salary will be paid. However, when the candidate inquires, the CEO does not give a clear date of when the salary will be issued. It has been more than a week now, but the employer is not responding.
What should the candidate do? What are his legal rights? Is the candidate legally eligible for his salary? Please advise on the course of action to be taken.
Regards,
Ajay
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Dear Ajay,
When an applicant applies for a job, he/she is called a job candidate. Once the candidate is selected and joins the duties, he/she is referred to as an "employee". In your acquaintance's case, he/she needs to be called an employee, not a candidate.
The employee was removed within a month. The employee was not given either an offer letter or an appointment letter. Did he/she sign the attendance? What evidence can this person provide to prove that he/she was employed?
The employee has been sending emails asking for the salary. Tell him/her to take a printout of the emails. Secondly, what was the designation of this person? Did anyone report to this person? If nobody reported, then the provisions of the Industrial Disputes Act, 1947 become applicable to him/her, and under the provisions of this law, he/she can approach the Labour Office and make a formal complaint for the non-payment of wages.
If this person worked as a supervisor and above, with a few persons reporting to him, then his case becomes difficult, as there is no remedy under the provisions of the ID Act, 1947, and filing a civil suit is the only option.
Thanks,
Dinesh Divekar
From India, Bangalore
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When an applicant applies for a job, he/she is called a job candidate. Once the candidate is selected and joins the duties, he/she is referred to as an "employee". In your acquaintance's case, he/she needs to be called an employee, not a candidate.
The employee was removed within a month. The employee was not given either an offer letter or an appointment letter. Did he/she sign the attendance? What evidence can this person provide to prove that he/she was employed?
The employee has been sending emails asking for the salary. Tell him/her to take a printout of the emails. Secondly, what was the designation of this person? Did anyone report to this person? If nobody reported, then the provisions of the Industrial Disputes Act, 1947 become applicable to him/her, and under the provisions of this law, he/she can approach the Labour Office and make a formal complaint for the non-payment of wages.
If this person worked as a supervisor and above, with a few persons reporting to him, then his case becomes difficult, as there is no remedy under the provisions of the ID Act, 1947, and filing a civil suit is the only option.
Thanks,
Dinesh Divekar
From India, Bangalore
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Was daily attendance being marked by the company?
Has the employee been signing letters or have any evidence that he has actually worked for 28 days or so?
Put up a written representation asking for salary and reasons for termination.
From India, Pune
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Has the employee been signing letters or have any evidence that he has actually worked for 28 days or so?
Put up a written representation asking for salary and reasons for termination.
From India, Pune
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(Fact Checked)-The user reply is mostly correct. It is important to note that in the absence of written documentation, the burden of proof may lie on the candidate to establish employment. Requesting salary and reasons for termination in writing is a good approach. (1 Acknowledge point)
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Thanks for the response! I clarify the following. Please advise further.
1. The employee signed the attendance register.
2. The biometric attendance system also captured the in and out time daily since the employee had the ID badge.
3. The CCTV captured it too.
4. He filled out the Employee joining form and NDA on the date of joining.
5. No emails were sent regarding salary. Only verbal follow-ups were done.
6. No designation was finalized. Only salary was verbally finalized. Designation was not finalized despite reminders and follow-ups. The broad role was recruitment and marketing work.
7. Nobody reported to the employee.
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1. The employee signed the attendance register.
2. The biometric attendance system also captured the in and out time daily since the employee had the ID badge.
3. The CCTV captured it too.
4. He filled out the Employee joining form and NDA on the date of joining.
5. No emails were sent regarding salary. Only verbal follow-ups were done.
6. No designation was finalized. Only salary was verbally finalized. Designation was not finalized despite reminders and follow-ups. The broad role was recruitment and marketing work.
7. Nobody reported to the employee.
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(Fact Check Failed/Partial)-The employee's actions and documentation such as signing the attendance register, using the biometric system, and filling out forms can support his case for payment. However, the lack of a formal appointment letter may complicate matters. It's crucial to consult labor laws and seek legal advice in this situation.
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Dear Ajay,
Please instruct the employee to submit an application for the payment of wages for the period worked. Advise him to send the hard copy by registered post with acknowledgment due. If the salary is not disbursed within a week, he should send a reminder along with a copy of this letter to the local labor officer. If the employer remains uncooperative, the employee should proceed to make a formal application to the labor officer.
When sending the letter via hard copy, ask the employee to also send the soft copy by email. Additionally, ensure that the employee takes a printout of the email communication.
Thanks,
Dinesh Divekar
From India, Bangalore
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Please instruct the employee to submit an application for the payment of wages for the period worked. Advise him to send the hard copy by registered post with acknowledgment due. If the salary is not disbursed within a week, he should send a reminder along with a copy of this letter to the local labor officer. If the employer remains uncooperative, the employee should proceed to make a formal application to the labor officer.
When sending the letter via hard copy, ask the employee to also send the soft copy by email. Additionally, ensure that the employee takes a printout of the email communication.
Thanks,
Dinesh Divekar
From India, Bangalore
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(Fact Check Failed/Partial)-The user's reply is partially correct. In situations of non-payment of wages, approaching the labor officer is a valid step. However, it's crucial to note that the procedure may vary depending on the specific labor laws of the region.
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If I remember correctly, no labor law other than the Sales Promotion Employees Act makes it obligatory on the part of the employer to issue appointment orders to their employees. Therefore, it cannot be considered a substantial proof of one's employment. It would be better to ask your friend to raise a dispute under Section 2-A(1) of the Industrial Disputes Act, 1947 before the Labor Officer for the area. This way, a meeting point can be created, and the issue of unpaid salary can be settled at least.
From India, Salem
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From India, Salem
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(Fact Check Failed/Partial)-The user reply contains inaccuracies. According to Indian labor laws, it is mandatory for employers to provide a written appointment letter to employees. The Industrial Disputes Act, 1947, does not cover the issuance of appointment letters. The employee should seek legal assistance for non-payment of salary.
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Dear Mr. Umakanthan M,
Sir, the Karnataka Shops and Establishment Rule, 1963 makes it mandatory to issue an Appointment Order (Form 10) to the hired employees. The format of this form is provided in the Appendix of the said act. Sometimes, Labour Officers object to issuing an "Appointment Letter" instead of an "Appointment Order" as specified by the law. As a compromise, we were not actually issuing this form to the employee. Instead, upon hiring a new person, we would have the employee sign this form and file it in their employee file. The appearance of the form does not align with present-day management practices, hence this adjustment.
Regards,
Dinesh Divekar
From India, Bangalore
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Sir, the Karnataka Shops and Establishment Rule, 1963 makes it mandatory to issue an Appointment Order (Form 10) to the hired employees. The format of this form is provided in the Appendix of the said act. Sometimes, Labour Officers object to issuing an "Appointment Letter" instead of an "Appointment Order" as specified by the law. As a compromise, we were not actually issuing this form to the employee. Instead, upon hiring a new person, we would have the employee sign this form and file it in their employee file. The appearance of the form does not align with present-day management practices, hence this adjustment.
Regards,
Dinesh Divekar
From India, Bangalore
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(Fact Check Failed/Partial)-The user reply contains information inaccuracies. The Karnataka Shops and Establishment Rule, 1963 does not specify the Appointment Order (Form 10) format as described. Additionally, it is crucial to issue appointment letters to employees. There is no legal basis for not providing proper documentation to employees.
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Thank you, Dinesh, for your information which is really enlightening because all along I was under the impression that only the SPE Act, 1976 mandates such a provision in view of the scattered nature of the actual places of employment of the Sales Promotion Employees.
Immediately, I've gone through the KNS & CE Rules, 1963 and found rule 24(9A) providing for the appointment order in Form Q. As you rightly observed, it is different from the appointment letters issued by industrial employers in general though retaining the essential particulars. The Enforcement Officers may also be correct in insisting on the exact format in view of the multitude of conventional types of establishments. However, Rule 24(9) enables the employer to use different formats of the notices and registers with the prior permission of the Government.
Coming to the original issue, let the employee approach the Labor Officer first so that he may know whether the very fact of his employment with the organization is denied, allowing him to decide the course of his alternative remedy for the issue.
From India, Salem
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Immediately, I've gone through the KNS & CE Rules, 1963 and found rule 24(9A) providing for the appointment order in Form Q. As you rightly observed, it is different from the appointment letters issued by industrial employers in general though retaining the essential particulars. The Enforcement Officers may also be correct in insisting on the exact format in view of the multitude of conventional types of establishments. However, Rule 24(9) enables the employer to use different formats of the notices and registers with the prior permission of the Government.
Coming to the original issue, let the employee approach the Labor Officer first so that he may know whether the very fact of his employment with the organization is denied, allowing him to decide the course of his alternative remedy for the issue.
From India, Salem
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(Fact Check Failed/Partial)-The user reply does not address the specific legal situation presented in the original post regarding the candidate's employment and non-payment of salary. The advice provided is related to a different Act and rules. The employee should seek legal advice on non-payment of salary.
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(Fact Check Failed/Partial)-The user's reply contains inaccuracies. The main focus should be on the legal aspects and rights of the employee, rather than terminology. The Industrial Disputes Act, 1947, does not solely apply to supervisors. The Indian Contract Act, 1872, also governs employment contracts. The user's emphasis on attendance and reporting structure is not the core issue here.