Dear All, I have a concern, I am working for a company as company as a confirmed employee now but company is closing the line of business for which I am working so they are asking me to leave for it. Pls advise me on my rights and legal implications that I have. Pls advise what compensation and documents should I ask if I leave
From India, New Delhi
From India, New Delhi
148
Retrenchment provisions (Sec 25F or 25N) of the Industrial Disputes Act to an employee should not be interpreted as applicable to all categories of employees but it is applicable to workmen as defined in section 2(s) of the Act. Therefore, if an employee is asked to leave the organisation, the remedy is not to claim retrenchment benefits and to make a settlement as per section 18(1) ( Section 18(1) settlement means a bilateral settlement between the workmen and the employer and I don’t know what will be relevance of such a settlement in the present case) but to see if the employee asked to leave comes under the ID Act and if yes, what are the provisions available in the certified Standing Orders of the company and then take a call. If the employee comes under the cover of ID Act, naturally, he will get protection provided he has completed at least I year of service with the company and is not the last employee employed in the same category of employment. Now, confirmation shall take place in 6 months also and this does not mean that he should be given retrenchment benefits. Therefore, confirmation is not the right status for claiming retrenchment benefits. Even a trainee or a probationer who has been with the company for the last I year (having worked for at least 240 days) is eligible to get the compensation. Again, as per ID Act, it should be the last person employed in the group/ category who should be retrenched.
The retrenchment compensation is equal to 15 days salary for every completed year of service. In addition to this compensation, workmen are entitled to one month notice or salary in lieu of such notice. In the case of companies employing 100 or more workers, the notice should be 3 months.
Nothing above stated is applicable to an employee who has been working even for years but in supervisory or managerial capacity with at least one person reporting to him functionally. That means, in the case of an employee vested with managerial powers, the employer need not verify whether this person is the last employed in the similar line or whether he has completed one year of service etc, but only follow what is written in the appointment order/ contract of employment. For such category of employees neither the provisions of ID Act nor the Standing Orders will apply.
At the time of discharge, every employee (whether worker or manager) who has worked at least for five years with the company is entitled to gratuity as per Payment of Gratuity Act.
A retrenched employee is also entitled to get encashment of leave to his credit and statutory bonus calculated proportionally. Provision of issuing service certificate is also mandatory provided that the Standing Orders provides for the same. In some Shops and Commercial Establishments Act of some states (like that of Kerala), the same has been incorporated as a mandatory requirement.
Madhu.T.K
From India, Kannur
The retrenchment compensation is equal to 15 days salary for every completed year of service. In addition to this compensation, workmen are entitled to one month notice or salary in lieu of such notice. In the case of companies employing 100 or more workers, the notice should be 3 months.
Nothing above stated is applicable to an employee who has been working even for years but in supervisory or managerial capacity with at least one person reporting to him functionally. That means, in the case of an employee vested with managerial powers, the employer need not verify whether this person is the last employed in the similar line or whether he has completed one year of service etc, but only follow what is written in the appointment order/ contract of employment. For such category of employees neither the provisions of ID Act nor the Standing Orders will apply.
At the time of discharge, every employee (whether worker or manager) who has worked at least for five years with the company is entitled to gratuity as per Payment of Gratuity Act.
A retrenched employee is also entitled to get encashment of leave to his credit and statutory bonus calculated proportionally. Provision of issuing service certificate is also mandatory provided that the Standing Orders provides for the same. In some Shops and Commercial Establishments Act of some states (like that of Kerala), the same has been incorporated as a mandatory requirement.
Madhu.T.K
From India, Kannur
Dear Madhu & Stephen,
Thanks for writing back. This company has a reputation of playing with employees in a real bad way. I was confirmed on Feb 6 2015 and 27 Feb 2015, I was asked to end my services due cost cutting withing the company, although people with my scope of job are still working with less qualification than me( I have done masters in Supply chain). As I got an confirmation I planned my future accordingly as in planned to get married but now my situation is very critical as I have no job and if I have job again I have to go through 6 months probation period and prove myself again, look for new house, my life has been totally messed by this decision, on top of it company is just ready to pay one month of additional salary but I want at least 3 months. Pls advise if there is a clause in Indian law that I can use here or suggest a way out
From India, New Delhi
Thanks for writing back. This company has a reputation of playing with employees in a real bad way. I was confirmed on Feb 6 2015 and 27 Feb 2015, I was asked to end my services due cost cutting withing the company, although people with my scope of job are still working with less qualification than me( I have done masters in Supply chain). As I got an confirmation I planned my future accordingly as in planned to get married but now my situation is very critical as I have no job and if I have job again I have to go through 6 months probation period and prove myself again, look for new house, my life has been totally messed by this decision, on top of it company is just ready to pay one month of additional salary but I want at least 3 months. Pls advise if there is a clause in Indian law that I can use here or suggest a way out
From India, New Delhi
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