17
In the absence of any clue as to whether the questioner is entitled to any sort of remedy under the Industrial Disputes Act, I think that it is not proper to suggest any direct legal action before exhausting the appeal provisions. Even otherwise the questioner happens to be an officer, no prudent management will have such a brutal and open clause in the contract of employment envisaging resignation in the face of alleged poor performance. Besides, the statement " In April this year my supervisor call me for a review and informed me to resign due to my poor performance and if not resigned he would terminate me ........just today I got a rating of 1 which say I have to resign with one month after accepting the same " seems a bit confusing and contradicting to me and compells to presume that the questioner is under severe mental strain of the fear of losing job. So my suggestion at this stage again would be to prefer an appeal.
From India, Salem
From India, Salem
Hi,
As suggested by your HR, please look for another openings, in other departments/branches within the organization. This will bypass the issued with performance / current supervisor / losing of job. You can use the super boss reference to secure this. This will slow down your career path, but won't put a gap/halt in it. In due time (by the time of your next review in new department), look for better opportunities outside this bank.
It will be a waste of time to pursue to correct / change your current superior's opinions about you. Don't waste your energy in fighting the losing battle.... Rather than "changing the boss", change "the boss"... :-)
A confirmed employee can be terminated due to non performance in private organizations, especially if the formal periodic (even annual) review has indicated performance issues. Even if your immediate superior is targeting you (per your say), I don't think he/she is so stupid as to keep these review records without justifiable proofs.
This bank seems to be considerate enough to ask you to resign & giving you a month's period for that. They could have terminated you & let you fight against their decision. Think how difficult it would have been for you! Look at it with this view, that they are paying you one extra month, even if they find your services not useful to them, just to give you a chance to move ahead!
Nobody likes to admit that their performance has issues. But sometimes, it is a gap between expectations, or merely ability to understand/handle the 'unwritten' responsibilities. Don't take this criticism negatively, but from the career point of view, see if you can upgrade yourself in coming time to win over such career struggles.
Best of luck...
Best Regards,
Amod Bobade.
As suggested by your HR, please look for another openings, in other departments/branches within the organization. This will bypass the issued with performance / current supervisor / losing of job. You can use the super boss reference to secure this. This will slow down your career path, but won't put a gap/halt in it. In due time (by the time of your next review in new department), look for better opportunities outside this bank.
It will be a waste of time to pursue to correct / change your current superior's opinions about you. Don't waste your energy in fighting the losing battle.... Rather than "changing the boss", change "the boss"... :-)
A confirmed employee can be terminated due to non performance in private organizations, especially if the formal periodic (even annual) review has indicated performance issues. Even if your immediate superior is targeting you (per your say), I don't think he/she is so stupid as to keep these review records without justifiable proofs.
This bank seems to be considerate enough to ask you to resign & giving you a month's period for that. They could have terminated you & let you fight against their decision. Think how difficult it would have been for you! Look at it with this view, that they are paying you one extra month, even if they find your services not useful to them, just to give you a chance to move ahead!
Nobody likes to admit that their performance has issues. But sometimes, it is a gap between expectations, or merely ability to understand/handle the 'unwritten' responsibilities. Don't take this criticism negatively, but from the career point of view, see if you can upgrade yourself in coming time to win over such career struggles.
Best of luck...
Best Regards,
Amod Bobade.
One point I missed in above post....
If you do try to transfer within the bank to different department/branch, try/request to make it a "transfer", & not the "resignation + reemployment". This will resolve un-necessory complications related to PF, experience certificates, etc...
Who knows, with a transfer, you may even get a little raise in your pay....
Best Regards,
Amod Bobade.
If you do try to transfer within the bank to different department/branch, try/request to make it a "transfer", & not the "resignation + reemployment". This will resolve un-necessory complications related to PF, experience certificates, etc...
Who knows, with a transfer, you may even get a little raise in your pay....
Best Regards,
Amod Bobade.
Doubts have been cast whether the queriest is a workman or not and ancillary to it is whether having given the performance appraisal by him whether he becomes officer and ceases to be a workman especially when his supervisor had apprised him of review.
In April his supervisor had apprised of poor performance and asked him to resign. And yesterday he got rating 1 which contemplated he had to resign. Thus under latest development, he has been directed to resign. The question of looking elsewhere in Bank does not arise. When the Bank has given him poor performance rating, it is evidently with the approval of the competent authority. A poor performer will not be accommodative in Bank elsewhere. Moreover, in private Bank, appeal provisions are not statutory in nature. The queriest asserts that his performance has been at par with his colleagues and he believes that he has been personally targeted by his superior. Prima facie it is a case of mala fides against his superior and his performance appraisal has been falsified by his superior. His rights to pursue remedy lies under the The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 as his place of work appears in Pune.
The queriest is a workman as he was working under a supervisor and merely because he gave performance appraisal does not put him in a managerial position in view of following Kolkata HC decision. Even if his designation is of Officer is not material for determination whether he is a workman:
Kolkata High Court (Appellete Side)
Esab India Limited vs Swapan Kumar Chakraborty & Ors on 16 January, 2014
“this Court can proceed to decide an issue whether the private respondent can be brought within the purview of "Workman" under the said Act on the strength of the nature of the duties assigned either by the management or under the aforesaid Rules.
The petitioner has relied upon the statements made in the evidence relating to the nature of duties performed by the private respondent. The entire tenet of the evidence does not really support the case of the petitioner, wherefrom it can be culled out that the very nature of duties entrusted upon the petitioner as a Welfare Officer was supervisory in nature; rather it is an impeachable evidence, which suggests that the private respondent was not bestowed with any independent power to take decision, but in fact works as per direction of the management.
As already indicated sub-rule 3 of Rule 9 does not confer any power on the Welfare Officer to deal with any disciplinary case against the worker and, therefore, the Welfare Officer cannot take any action against the worker relating to his dismissal, discharge, termination and/or penal action.
The foundation of the entire arguments of the petitioner is based upon the appraisal form submitted by the private respondent. There is no dispute that the petitioner has submitted the performance appraisal form relating to the management staff. In the evidence the petitioner admits to have submitted such form bearing a signature, but denies to have incorporated the particulars in his own handwriting.
From the aforesaid deposition it is evident that there is no denial to the execution of the said performance appraisal form as well as contents thereof, but what has been denied that those contents written are not his own handwriting. If the execution of the document and the contents thereof has not been denied, the said document is in effect accepted and can be applied and its impact on the issues in holding the proceedings can be considered by the Court.
According to the petitioner the execution of the said performance appraisal form and contents of the document being admitted, which apparently suggests that it is required to be submitted by a management staff, leads to an inevitable conclusion that the private respondent was employed in a supervisory capacity and discharges his functions mainly of a managerial in nature.
As I have already indicated that mere nomenclature is not the sole factor to decide the status of a person, but the very nature of the duties and functions discharged is the other guiding factors. The Tribunal found that the private respondent was performing a duty to advise the factory management and to assist the said management relating to the various facilities and problems of the labourers. The Tribunal further held that since the private respondent has no power to take any penal or disciplinary action against the workers, that itself shows the perennial nature of his duties as a workman as opposed to supervisory.”
Since the queriest is working in Pune, and being a workman, derives the benefit of The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
Under section 28 of it , there is prescribed a procedure to deal with unfair labour practice.The complaint has to be filed within 90 days of the occurrence of unfair labour practice. The detailed procedure is extracted below. Thus interim relief of stay of termination has to be obtained by the queriest under section 30(2) of this Act.
“28. PROCEDURE FOR DEALING WITH COMPLAINTS RELATING TO UNFAIR LABOUR PRACTICES. -
(1) Where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint either under section 5, or as the as the case may be, under section 7, of this Act :
Provided that, the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint.
(2) The Court shall take a decision on every such complaint as far as possible within a period of six months from the date of receipt of the complaint.
(3) On receipt of a complaint under sub-section (1), the Court may, if it so considers necessary, first cause an investigation into the said complaint to be made by the Investigating Officer, and direct that a report in the matter may be submitted by him to the Court, within the period specified in the direction.
(4) While investigating into any such complaint, the Investigating Officer may visit the undertaking, where the practice alleged is said to have occurred, and make such enquiries as he considers necessary. He may also make efforts to promote settlement of the complaint.
(5) The Investigating Officer shall, after investigating into the complaint under sub-section (4) submit his report to the Court, within the time specified by it, setting out the full facts and circumstances of the case, and the efforts made by him in settling the complaint. The Court shall, on demand and on payment of such fee as may be prescribed by rules, supply a copy of the report to the complainant and the person complained against.
(6) If, on receipt of the report of the Investigating Officer, the Court finds that the complaint has not been settled satisfactorily, and that facts and circumstances of the case require, that the matter should be further considered by it, the Court shall proceed to consider it, and give its decision.
(7) The decision of the Court, which shall be in writing, shall be in the form of an order.
The order of the Court shall be final and shall not be called in question in any civil or criminal court.
(8) The Court shall cause its order to be published in such manner as may be prescribed. The order of the Court shall become enforceable from the date specified in the order.
(9) The Court shall forward a copy of its order to the State Government and such officers of the State Government as may be prescribed.”
The queriest should be thankful to the management that one month’s notice has been given to him to challenge its decision before a legal forum and obtain stay before they terminate him if he really thinks that injustice has been done to him. I think the queriest should be come forward with details of duties he performs.
Thanks
Sushil
From India, New Delhi
In April his supervisor had apprised of poor performance and asked him to resign. And yesterday he got rating 1 which contemplated he had to resign. Thus under latest development, he has been directed to resign. The question of looking elsewhere in Bank does not arise. When the Bank has given him poor performance rating, it is evidently with the approval of the competent authority. A poor performer will not be accommodative in Bank elsewhere. Moreover, in private Bank, appeal provisions are not statutory in nature. The queriest asserts that his performance has been at par with his colleagues and he believes that he has been personally targeted by his superior. Prima facie it is a case of mala fides against his superior and his performance appraisal has been falsified by his superior. His rights to pursue remedy lies under the The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 as his place of work appears in Pune.
The queriest is a workman as he was working under a supervisor and merely because he gave performance appraisal does not put him in a managerial position in view of following Kolkata HC decision. Even if his designation is of Officer is not material for determination whether he is a workman:
Kolkata High Court (Appellete Side)
Esab India Limited vs Swapan Kumar Chakraborty & Ors on 16 January, 2014
“this Court can proceed to decide an issue whether the private respondent can be brought within the purview of "Workman" under the said Act on the strength of the nature of the duties assigned either by the management or under the aforesaid Rules.
The petitioner has relied upon the statements made in the evidence relating to the nature of duties performed by the private respondent. The entire tenet of the evidence does not really support the case of the petitioner, wherefrom it can be culled out that the very nature of duties entrusted upon the petitioner as a Welfare Officer was supervisory in nature; rather it is an impeachable evidence, which suggests that the private respondent was not bestowed with any independent power to take decision, but in fact works as per direction of the management.
As already indicated sub-rule 3 of Rule 9 does not confer any power on the Welfare Officer to deal with any disciplinary case against the worker and, therefore, the Welfare Officer cannot take any action against the worker relating to his dismissal, discharge, termination and/or penal action.
The foundation of the entire arguments of the petitioner is based upon the appraisal form submitted by the private respondent. There is no dispute that the petitioner has submitted the performance appraisal form relating to the management staff. In the evidence the petitioner admits to have submitted such form bearing a signature, but denies to have incorporated the particulars in his own handwriting.
From the aforesaid deposition it is evident that there is no denial to the execution of the said performance appraisal form as well as contents thereof, but what has been denied that those contents written are not his own handwriting. If the execution of the document and the contents thereof has not been denied, the said document is in effect accepted and can be applied and its impact on the issues in holding the proceedings can be considered by the Court.
According to the petitioner the execution of the said performance appraisal form and contents of the document being admitted, which apparently suggests that it is required to be submitted by a management staff, leads to an inevitable conclusion that the private respondent was employed in a supervisory capacity and discharges his functions mainly of a managerial in nature.
As I have already indicated that mere nomenclature is not the sole factor to decide the status of a person, but the very nature of the duties and functions discharged is the other guiding factors. The Tribunal found that the private respondent was performing a duty to advise the factory management and to assist the said management relating to the various facilities and problems of the labourers. The Tribunal further held that since the private respondent has no power to take any penal or disciplinary action against the workers, that itself shows the perennial nature of his duties as a workman as opposed to supervisory.”
Since the queriest is working in Pune, and being a workman, derives the benefit of The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
Under section 28 of it , there is prescribed a procedure to deal with unfair labour practice.The complaint has to be filed within 90 days of the occurrence of unfair labour practice. The detailed procedure is extracted below. Thus interim relief of stay of termination has to be obtained by the queriest under section 30(2) of this Act.
“28. PROCEDURE FOR DEALING WITH COMPLAINTS RELATING TO UNFAIR LABOUR PRACTICES. -
(1) Where any person has engaged in or is engaging in any unfair labour practice, then any union or any employee or any employer or any Investigating Officer may, within ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint either under section 5, or as the as the case may be, under section 7, of this Act :
Provided that, the Court may entertain a complaint after the period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by the complainant for the late filing of the complaint.
(2) The Court shall take a decision on every such complaint as far as possible within a period of six months from the date of receipt of the complaint.
(3) On receipt of a complaint under sub-section (1), the Court may, if it so considers necessary, first cause an investigation into the said complaint to be made by the Investigating Officer, and direct that a report in the matter may be submitted by him to the Court, within the period specified in the direction.
(4) While investigating into any such complaint, the Investigating Officer may visit the undertaking, where the practice alleged is said to have occurred, and make such enquiries as he considers necessary. He may also make efforts to promote settlement of the complaint.
(5) The Investigating Officer shall, after investigating into the complaint under sub-section (4) submit his report to the Court, within the time specified by it, setting out the full facts and circumstances of the case, and the efforts made by him in settling the complaint. The Court shall, on demand and on payment of such fee as may be prescribed by rules, supply a copy of the report to the complainant and the person complained against.
(6) If, on receipt of the report of the Investigating Officer, the Court finds that the complaint has not been settled satisfactorily, and that facts and circumstances of the case require, that the matter should be further considered by it, the Court shall proceed to consider it, and give its decision.
(7) The decision of the Court, which shall be in writing, shall be in the form of an order.
The order of the Court shall be final and shall not be called in question in any civil or criminal court.
(8) The Court shall cause its order to be published in such manner as may be prescribed. The order of the Court shall become enforceable from the date specified in the order.
(9) The Court shall forward a copy of its order to the State Government and such officers of the State Government as may be prescribed.”
The queriest should be thankful to the management that one month’s notice has been given to him to challenge its decision before a legal forum and obtain stay before they terminate him if he really thinks that injustice has been done to him. I think the queriest should be come forward with details of duties he performs.
Thanks
Sushil
From India, New Delhi
In today's scenario, people do get fired for performance issues.
My suggestions:
a) Avoid being emotional. Don't take the job as a lifetime guarantee. I am sure your employment contract would cover you getting fired for performance issues. I doubt if you can go to court to force the bank to keep you employed even if the appraisal system rates you lowest at 1.
b) Talk to the HR to understand what specific performance points did you falter on. Think honestly for yourself which of these areas you can improve upon by learning a new skill or changing behavior.
c) When you say your performance was the same as your peers, it unfortunately carries little weight because you are the guy in the doc. The appraisal system says your performance was bad and the easiest defence for you is to deny it. Saying this will not convince many people.
The best strategy would be to reflect and see if there really was a problem. Why did they rate you low? What were the expectations which you did not meet? What skills could have led you to meet those expectations? What attitudes would have helped you meet them? Ask your HR to help you understand.
Bad things happen. Mistakes happen too. It is important to understand the reasons and ensure it doesn't get repeated.
From India, Delhi
My suggestions:
a) Avoid being emotional. Don't take the job as a lifetime guarantee. I am sure your employment contract would cover you getting fired for performance issues. I doubt if you can go to court to force the bank to keep you employed even if the appraisal system rates you lowest at 1.
b) Talk to the HR to understand what specific performance points did you falter on. Think honestly for yourself which of these areas you can improve upon by learning a new skill or changing behavior.
c) When you say your performance was the same as your peers, it unfortunately carries little weight because you are the guy in the doc. The appraisal system says your performance was bad and the easiest defence for you is to deny it. Saying this will not convince many people.
The best strategy would be to reflect and see if there really was a problem. Why did they rate you low? What were the expectations which you did not meet? What skills could have led you to meet those expectations? What attitudes would have helped you meet them? Ask your HR to help you understand.
Bad things happen. Mistakes happen too. It is important to understand the reasons and ensure it doesn't get repeated.
From India, Delhi
Dear All Seniors
Thanks a lot for the feedback provided by each and every one of you.Appreciate your guidance on my concern.
At present I have escalated the matter to Hr and seniors in the management and have mailed them the facts and figures along with the list of acheivements and have presently refused to accept my performance appraisal as other staff members in my branch have been given a rating of 3.So i think its completely unjustified to give me a rating of 1.
Also our organisation has a Performance Improvement Plan where if a staff's performance is not satisfactory he is given a extention period of 3 month which was never followed in my case.
Dear Mr.Rao
Please find herewith the reply
Has periodic review been done of your performance? No
What is the rating in earlier review? Last year i got a rating of 3 with 5 being the highest
Has any warning or indication been given in normal day to day dealings that you work is not satisfactory? Indication has been given that my work was not satisfactory.but never a official mail/letter sent on the same.
Once again i request all my seniors to guide me in the said case.
regards
Nirmal
From India, Pune
Thanks a lot for the feedback provided by each and every one of you.Appreciate your guidance on my concern.
At present I have escalated the matter to Hr and seniors in the management and have mailed them the facts and figures along with the list of acheivements and have presently refused to accept my performance appraisal as other staff members in my branch have been given a rating of 3.So i think its completely unjustified to give me a rating of 1.
Also our organisation has a Performance Improvement Plan where if a staff's performance is not satisfactory he is given a extention period of 3 month which was never followed in my case.
Dear Mr.Rao
Please find herewith the reply
Has periodic review been done of your performance? No
What is the rating in earlier review? Last year i got a rating of 3 with 5 being the highest
Has any warning or indication been given in normal day to day dealings that you work is not satisfactory? Indication has been given that my work was not satisfactory.but never a official mail/letter sent on the same.
Once again i request all my seniors to guide me in the said case.
regards
Nirmal
From India, Pune
Dear Nirmal
Now lets see the problem that a person Who worked more than 480 days or so as per Conferment of Permanent Status Act 1981 (A workman, who has put in 480 days of continuous service in 24 months, will become automatically a permanent employee under the employer,) he is a permanent employee hence he entitle to get remedy under ID act ,
More over under ID act 52[(s) “Workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) Who is subject to the Air Force Act, 1950 (45of l950),or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) Who is employed in the police service or as an officer or other employee of a prison; or
(iii) Who is employed mainly in a managerial or administrative capacity; or
(iv) Who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.].
so my advise is not to resign your job. If Your management wants to terminate You dont worry ,Let challange them in court and get remedy, because non performance of work can't be the legal provision to terminate the employee after 480 days.
Regards
L.K.Saravanan
From India, Vellore
Now lets see the problem that a person Who worked more than 480 days or so as per Conferment of Permanent Status Act 1981 (A workman, who has put in 480 days of continuous service in 24 months, will become automatically a permanent employee under the employer,) he is a permanent employee hence he entitle to get remedy under ID act ,
More over under ID act 52[(s) “Workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) Who is subject to the Air Force Act, 1950 (45of l950),or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) Who is employed in the police service or as an officer or other employee of a prison; or
(iii) Who is employed mainly in a managerial or administrative capacity; or
(iv) Who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.].
so my advise is not to resign your job. If Your management wants to terminate You dont worry ,Let challange them in court and get remedy, because non performance of work can't be the legal provision to terminate the employee after 480 days.
Regards
L.K.Saravanan
From India, Vellore
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