21Dear All
I am immensely happy for the response received for my queries posted in this forum.
I thank you all for support and confidence given for my posts. There is a legal issue which is pending in our company. I request our august members to share their knowledge in this typical case.
The Management has terminated the services of a Manager – Business development who had put up two years of service, for the charges of pilfering / divulging the companies drawings / business informations and leaked to our business competitors there by our company lost orders worth of several crores of rupees. When the management came to know the fact that this person acting against the interest of the company and asked him to resign, he refused and then he was sacked. He raised a dispute under section 2A of the ID Act in the conciliation forum.
The management is of the view that he was served an appointment order where in the following clause strictly prohibiting an employee from divulging business information to any of the competitors.
Clause in the appointment order:
You should not disclose, publish of authorize anyone else to disclose or publish either during the term of employment or subsequent thereto, any confidential or secret information including, secret process, drawings, designs and formulae acquired in the course of your employment by the Company. You should not take with you without the consent of the Company any records or documents of a confidential character when you leave the services of the Company.
Further he was drawing Rs.30K at the time of termination and hence he cannot be treated as workmen under I D act.
With regards
Trisha
HR Professional
From India, New Delhi
Hi trisha,
First of all, salary is not a constraint to check if he is a workmen or not. If he is not having supervisory capacity then he will be a workmen. As you say he is a manager, so there must be few persons who is reporting to him. If this is true then he cannot raise dispute.
Regarding concilliation, let it go on, this will have no impact as soon the concilliation officer will give a report that no conclusion arrived at.
Then matter will go to labour court, where first it will be established if he is a workmen or not. So, prepare well to prove that he is not a workmen as he is having supervisory capacity. Next, try to collect (document) information where you can prove that he has leaked sensitive information of the company. If you can collect all these information then you can easily justify his termination.
For more help try to provide more data to us so that we can try to give you better solution.
Regards,
Nilendra
First of all, salary is not a constraint to check if he is a workmen or not. If he is not having supervisory capacity then he will be a workmen. As you say he is a manager, so there must be few persons who is reporting to him. If this is true then he cannot raise dispute.
Regarding concilliation, let it go on, this will have no impact as soon the concilliation officer will give a report that no conclusion arrived at.
Then matter will go to labour court, where first it will be established if he is a workmen or not. So, prepare well to prove that he is not a workmen as he is having supervisory capacity. Next, try to collect (document) information where you can prove that he has leaked sensitive information of the company. If you can collect all these information then you can easily justify his termination.
For more help try to provide more data to us so that we can try to give you better solution.
Regards,
Nilendra
Dear Trisha
As rightly pointed out by you, he cannot seek remedy under Section 2A of the Industrial Disputes Act. The only option available to him is that he can file a civil suit claiming damages, alleging wrongful termination. As it is a time consuming process, he may not prefer that option.
When initiating such actions, we should always issue show cause notice to the concerned employee seeking his explanation. On receiving the explanation, we can terminate him stating that his explanation is not acceptable and against the facts. Courts normally look into this aspect - whether opportunity is given to the delinquent employee or not.
Though the employee may not prefer the option of filing civil suit, we have to collect evidence and keep the documents ready to prove his guilt to make our case stronger.
Thanks & Regards
Kalyan R
9840942232
From India, Madras
As rightly pointed out by you, he cannot seek remedy under Section 2A of the Industrial Disputes Act. The only option available to him is that he can file a civil suit claiming damages, alleging wrongful termination. As it is a time consuming process, he may not prefer that option.
When initiating such actions, we should always issue show cause notice to the concerned employee seeking his explanation. On receiving the explanation, we can terminate him stating that his explanation is not acceptable and against the facts. Courts normally look into this aspect - whether opportunity is given to the delinquent employee or not.
Though the employee may not prefer the option of filing civil suit, we have to collect evidence and keep the documents ready to prove his guilt to make our case stronger.
Thanks & Regards
Kalyan R
9840942232
From India, Madras
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.
ASSESSMENT SERVICES.pdf