Greetings!!
We dismissed a staff 2 months ago due to constant poor performance at the job; several memos and emails were given about poor work performance. This employee refused to acknowledge any memo and refused to accept a dismissal letter along with one month's salary compensation. During dismissal, we showed her all the evidence of her poor work, hurting the company's reputation, money and time.
Out of the blue now, we received a letter from the labour department office asking to attend a hearing about discussing her dismissal. She is an office staff member working in the sales department, appointed by the HR Manager with an appointment letter; we are surprised if office staff even fall under the labour category and approach the labour office. We have a hearing next week. Can someone please guide what to do in this case? Thank you.
From India, Ahmedabad
We dismissed a staff 2 months ago due to constant poor performance at the job; several memos and emails were given about poor work performance. This employee refused to acknowledge any memo and refused to accept a dismissal letter along with one month's salary compensation. During dismissal, we showed her all the evidence of her poor work, hurting the company's reputation, money and time.
Out of the blue now, we received a letter from the labour department office asking to attend a hearing about discussing her dismissal. She is an office staff member working in the sales department, appointed by the HR Manager with an appointment letter; we are surprised if office staff even fall under the labour category and approach the labour office. We have a hearing next week. Can someone please guide what to do in this case? Thank you.
From India, Ahmedabad
Dear Prasad Shah,
Though you have written about the termination of the employee, you have not written:
a) How many subordinates reported to the employee before the termination?
b) Before terminating the employee's services, did your company conduct the domestic enquiry? If yes, was it as per the laid down procedure?
Now, the employer has received a notice from the labour department. They can send a representative and show the pre-termination records. What the labour office says after verifying them remains to be seen.
Otherwise, the employer can just ignore the notice. Though this option is also fraught with risk, it is worth taking. In such a case, the labour officer may send one more notice. If that is also ignored, the only remedy the terminated employee will have is to file the suit in the labour court. If it happens and, if the employer receives the court's summons, then it has to be honoured and cannot be ignored like the notice from the labour officer.
If you terminate the delinquent employee without conducting the domestic enquiry, then you have put yourself on a sticky wicket, which is a foregone conclusion from this post.
Thanks,
Dinesh Divekar
From India, Bangalore
7907Though you have written about the termination of the employee, you have not written:
a) How many subordinates reported to the employee before the termination?
b) Before terminating the employee's services, did your company conduct the domestic enquiry? If yes, was it as per the laid down procedure?
Now, the employer has received a notice from the labour department. They can send a representative and show the pre-termination records. What the labour office says after verifying them remains to be seen.
Otherwise, the employer can just ignore the notice. Though this option is also fraught with risk, it is worth taking. In such a case, the labour officer may send one more notice. If that is also ignored, the only remedy the terminated employee will have is to file the suit in the labour court. If it happens and, if the employer receives the court's summons, then it has to be honoured and cannot be ignored like the notice from the labour officer.
If you terminate the delinquent employee without conducting the domestic enquiry, then you have put yourself on a sticky wicket, which is a foregone conclusion from this post.
Thanks,
Dinesh Divekar
From India, Bangalore
Hi Prasad,
There is nothing to get panic. As Mr Dinesh rightly observed, when someone raise an issue, please give full details so that, it will help those who respond to properly interpret and give appropriate response. We need to know whether the office is registered under the Shop Act or Factories Act. If it is under Shop Act, he can still raise a dispute before the Labour Department claiming that the dismissal is unauthorized. Before that, his / her nature of duties is to be seen. He / she has any subordinates and whether he / she will come within the definition of workman. If he / she was performing managerial nature of duties, you can straightaway send the termination letter citing the clause in the appointment letter.
However, having received a notice from the labour department, you can attend the first hearing and get the copy of the petition. You can consult and prepare an appropriate reply statement and file in the next hearing date. If the conciliation ends up in failure, failure report will be sent to the government and the concerned individual may raise a dispute before the Labour Court. At that time, you can represent through your counsel and defend the case. You need not worry and take it appropriately.
Regards,
From India, Chennai
There is nothing to get panic. As Mr Dinesh rightly observed, when someone raise an issue, please give full details so that, it will help those who respond to properly interpret and give appropriate response. We need to know whether the office is registered under the Shop Act or Factories Act. If it is under Shop Act, he can still raise a dispute before the Labour Department claiming that the dismissal is unauthorized. Before that, his / her nature of duties is to be seen. He / she has any subordinates and whether he / she will come within the definition of workman. If he / she was performing managerial nature of duties, you can straightaway send the termination letter citing the clause in the appointment letter.
However, having received a notice from the labour department, you can attend the first hearing and get the copy of the petition. You can consult and prepare an appropriate reply statement and file in the next hearing date. If the conciliation ends up in failure, failure report will be sent to the government and the concerned individual may raise a dispute before the Labour Court. At that time, you can represent through your counsel and defend the case. You need not worry and take it appropriately.
Regards,
From India, Chennai
The office staff will also come under the category of workmen and fall under the scope of Industrial Disputes Act. But a person who has been supporting the sales team to achieve the sales target by and large will come under the category of employees with purely administrative role. Though sales promotion employees of some industries fall under the scope of Sales promotion Employees (Conditions of Service) Act, all the sales persons will not come under the said Act.
Regarding a letter from the labour Department, I would say that the same is only a routine intimation. If you have enough proof to show that the employee was given opportunities to improve his performance, the question of reinstatement will not arise. Second, a termination can be dismissal or termination simpliciter. If you have paid or are ready to pay notice pay as per contract of employment or as per ID Act, as the case may be, the same is enough. It is not necessary that in all the cases, there should be domestic enquiry before an employee is terminated. In Dr Mrs. Sumati P Shere Vs. Union of India, what the Apex Court observed was that termination of an employee on poor performance should have been done after informing the employee concerned. in this case the employee was appointed for a temporary/ ad hoc period. At the same time, no officer will say that an employee who does not meet his day to day targets, spends more time for breaks, overstays intervals or takes leave without intimation should be retained.
Therefore, what I feel is that you should attend the hearing, and explain what exactly has taken place in the case of the said employee. Then instead of reinstatement the Officer will order for payment of notice pay which may be equal to one month salary.
From India, Kannur
Regarding a letter from the labour Department, I would say that the same is only a routine intimation. If you have enough proof to show that the employee was given opportunities to improve his performance, the question of reinstatement will not arise. Second, a termination can be dismissal or termination simpliciter. If you have paid or are ready to pay notice pay as per contract of employment or as per ID Act, as the case may be, the same is enough. It is not necessary that in all the cases, there should be domestic enquiry before an employee is terminated. In Dr Mrs. Sumati P Shere Vs. Union of India, what the Apex Court observed was that termination of an employee on poor performance should have been done after informing the employee concerned. in this case the employee was appointed for a temporary/ ad hoc period. At the same time, no officer will say that an employee who does not meet his day to day targets, spends more time for breaks, overstays intervals or takes leave without intimation should be retained.
Therefore, what I feel is that you should attend the hearing, and explain what exactly has taken place in the case of the said employee. Then instead of reinstatement the Officer will order for payment of notice pay which may be equal to one month salary.
From India, Kannur
Thank you everyone for giving reply and valuable guidance. As more details requested, I would like to state as following
1. The employee joined our company in March,23 with qualification of only HSC Pass. However that, a VP in company on human grounds, provided job to this way underqualified woman to support her.
2. She was appointed as Sales Assistant to make invoices, ewaybills, maintain sales records in tally and excel, arrange sales and dispatches in absence of seniors and also incharge of payment recoveries. She didnt have subordinates below her.
3. We are registered under Factories Act, not Shop Act. As we are a manufacturing unit and having this admin office in city to handle the operations easily rather than far from city.
4. For last 1 year, her performance was constantly deteriorated. She became also a trouble maker. Picking fights with other employees. Not respecting even Managing Director, making endless mistakes at work, ganging up with others to hurt company's interests. Provoking others to go against management. In fact, her stand was no matter whoever do whatever mistake or indiscipline within company, management should keep quite or they threaten to file false allegations or reveal company's secrets. Once HR Manager warned her not to make tea on her own in office, she gave 2 page legal letter that, HR is threatening her and she doesnt feel safe inside company, just as some woman play a victim card. We found she even provocated other woman employees that,if any male employee scold them for work mistake, they can raise work place harassment complaint against them. Once she even brought her husband in office and made violent threats to HR Manager.
Several memos were given to her, but she refused to accept any. An inquiry was conducted internally and detailed mails about her misconducts, poor work performance, false allegations. But she didnt respond to the mail. Her anti-authority behaviour was spreading wrong idea among other staff. So finally we had to terminate her stating citing all poor work performance reasons, she didnt sign the letter, refused to accept 1 month compensation and left.
She got along with CITU labour union, and CITU seems to have given assurance that, do whatever u want, we will save you, and company cant do anything to you. So her work and behaviour both went worse by the day. Right now also, we know that, CITU have told her that, if labour office talks fails, we will go court, there are lawyers who run such case for free, and after years, if judgement comes in favour of employee after years, they claim their fees from huge settlement of backdated wages.
We are 100% sure that, next step is court summons only once labour office talks fail. We need to know, how strong is case on our side? We dont know what you meant by domestic inquiry. Our HR manager did send enough memos and we did internal inquiry about her poor work and bad behaviour. Other than that, did we miss anything which may go against us?
Sorry for long message, but as few have asked, I didnt spare any detail this time hopefully. Please guide us, thank you.
From India, Ahmedabad
1. The employee joined our company in March,23 with qualification of only HSC Pass. However that, a VP in company on human grounds, provided job to this way underqualified woman to support her.
2. She was appointed as Sales Assistant to make invoices, ewaybills, maintain sales records in tally and excel, arrange sales and dispatches in absence of seniors and also incharge of payment recoveries. She didnt have subordinates below her.
3. We are registered under Factories Act, not Shop Act. As we are a manufacturing unit and having this admin office in city to handle the operations easily rather than far from city.
4. For last 1 year, her performance was constantly deteriorated. She became also a trouble maker. Picking fights with other employees. Not respecting even Managing Director, making endless mistakes at work, ganging up with others to hurt company's interests. Provoking others to go against management. In fact, her stand was no matter whoever do whatever mistake or indiscipline within company, management should keep quite or they threaten to file false allegations or reveal company's secrets. Once HR Manager warned her not to make tea on her own in office, she gave 2 page legal letter that, HR is threatening her and she doesnt feel safe inside company, just as some woman play a victim card. We found she even provocated other woman employees that,if any male employee scold them for work mistake, they can raise work place harassment complaint against them. Once she even brought her husband in office and made violent threats to HR Manager.
Several memos were given to her, but she refused to accept any. An inquiry was conducted internally and detailed mails about her misconducts, poor work performance, false allegations. But she didnt respond to the mail. Her anti-authority behaviour was spreading wrong idea among other staff. So finally we had to terminate her stating citing all poor work performance reasons, she didnt sign the letter, refused to accept 1 month compensation and left.
She got along with CITU labour union, and CITU seems to have given assurance that, do whatever u want, we will save you, and company cant do anything to you. So her work and behaviour both went worse by the day. Right now also, we know that, CITU have told her that, if labour office talks fails, we will go court, there are lawyers who run such case for free, and after years, if judgement comes in favour of employee after years, they claim their fees from huge settlement of backdated wages.
We are 100% sure that, next step is court summons only once labour office talks fail. We need to know, how strong is case on our side? We dont know what you meant by domestic inquiry. Our HR manager did send enough memos and we did internal inquiry about her poor work and bad behaviour. Other than that, did we miss anything which may go against us?
Sorry for long message, but as few have asked, I didnt spare any detail this time hopefully. Please guide us, thank you.
From India, Ahmedabad
First things is that, if her date of appointment was in March 2023, you should not have waited for two years (approximately) to terminate her. It is also often found that the employer gives appointment order without specifying any probation period. certainly, if she was under probation, we would have a space to breathe and take action even by dismissing without showing any reason and notice if we find that she is getting involved in activities against the management.
Second, since we have proof to show that she was given warning at regular intervals and she was given warning to improve her performance, you can certainly take a stand that her termination was not at all stigmatic but simpliciter only. Only in the case of termination causing stigma an enquiry is legally mandatory whereas if the employer finds that an employee is unfit for the work assigned, he can very well ask her to go by giving notice or wages in lieu of notice. The remedy available is offering one month pay. The maximum the labour Officer can direct is to pay a compensation considering the termination as 'retrenchment' and in such scenario, the compensation will not exceed 15 days pay for every completed year of service, ie, again 30 days pay.
The Union will always mislead the employees especially when it is termination of employment. But when you are called for a conciliation by the Labour Officer, you can discuss the matter round the table, and say that we cannot rehire an employee who cannot accept our office culture. Therefore, the chances of referring the matter for adjudication is remote but the Labour Officer himself will come with a solution.
From India, Kannur
Second, since we have proof to show that she was given warning at regular intervals and she was given warning to improve her performance, you can certainly take a stand that her termination was not at all stigmatic but simpliciter only. Only in the case of termination causing stigma an enquiry is legally mandatory whereas if the employer finds that an employee is unfit for the work assigned, he can very well ask her to go by giving notice or wages in lieu of notice. The remedy available is offering one month pay. The maximum the labour Officer can direct is to pay a compensation considering the termination as 'retrenchment' and in such scenario, the compensation will not exceed 15 days pay for every completed year of service, ie, again 30 days pay.
The Union will always mislead the employees especially when it is termination of employment. But when you are called for a conciliation by the Labour Officer, you can discuss the matter round the table, and say that we cannot rehire an employee who cannot accept our office culture. Therefore, the chances of referring the matter for adjudication is remote but the Labour Officer himself will come with a solution.
From India, Kannur
Dear Mr Prasad,
The reason of termination was "Poor Performance".Whether did exist in the appointment letter as one of the clause or the same is existing in the Company Standing Order? All these would be the focal point during the reconciliation and in the labour court too.
From India, Mumbai
The reason of termination was "Poor Performance".Whether did exist in the appointment letter as one of the clause or the same is existing in the Company Standing Order? All these would be the focal point during the reconciliation and in the labour court too.
From India, Mumbai
This should be considered as termination simpliciter and not dismissal. In the absence of Standing Orders, the terminal clauses in the appointment order shall be considered as valid. The Workmen of Sudder Office, Cinnamara vs Management of Sudder Office And Anr ((1972)4SCC746) and Amy N. Irani vs Makers Development Services (P) Ltd ((2003)IILLJ847BOM) are a few citations wherein the Courts have said that employment is based on a trust and the employer can not be compelled to let one continue if he has lost trust and confidence. In this case also the employer seems to have lost confidence on her and it was after repeated requests to improve her performance and also attitude that the employer has terminated her. Therefore, principles of natural justice has been followed, Moreover, the employer has initiated a termination simpliciter by offering her one month salary in lieu of notice.
From India, Kannur
From India, Kannur
Dear Prasad,
Greetings
As per the inputs given by Madhu . its more than enough , you dont need to be panic in any means .
1. You have clearly mentioned "several memos and emails were given about poor work performance"
I would like to ask you did you put the employee into any special training seeing her performance ?
2. If you have not provided any training based on the performance and if you have directly dismissed , The hearing that you are been called for will ask you to provide here training and give her one more chance.
3. It would be great if you can share me the exact details of the officer who sent you the letter for hearing , date of hearing , and venue and your company details .
i can help you witha smooth process.
NOTE: Being a company VP , its not mandatory you need to be directly present for the hearing , you can make an representative from the HR team and legal team to attend the hearing .
Do share the details so that we can help you officially regarding the same.
From India, Vijayawada
Greetings
As per the inputs given by Madhu . its more than enough , you dont need to be panic in any means .
1. You have clearly mentioned "several memos and emails were given about poor work performance"
I would like to ask you did you put the employee into any special training seeing her performance ?
2. If you have not provided any training based on the performance and if you have directly dismissed , The hearing that you are been called for will ask you to provide here training and give her one more chance.
3. It would be great if you can share me the exact details of the officer who sent you the letter for hearing , date of hearing , and venue and your company details .
i can help you witha smooth process.
NOTE: Being a company VP , its not mandatory you need to be directly present for the hearing , you can make an representative from the HR team and legal team to attend the hearing .
Do share the details so that we can help you officially regarding the same.
From India, Vijayawada
Dear,
The Labor Department has full authority to conduct dispute hearings. First, you need to review the conditions in the worker/employee's appointment letter to see if they include provisions for termination if the worker/employee fails to meet sales-related targets.
Check your establishment's standing orders to see the provisions for removing workers or any other employee, such as conducting an internal inquiry, and ensure you have followed those provisions. Attend the Labor Department's proceedings and present your stance on their raised points.
If the employees consistently disregard your instructions, you have the full right to terminate them.
From India, Pune
The Labor Department has full authority to conduct dispute hearings. First, you need to review the conditions in the worker/employee's appointment letter to see if they include provisions for termination if the worker/employee fails to meet sales-related targets.
Check your establishment's standing orders to see the provisions for removing workers or any other employee, such as conducting an internal inquiry, and ensure you have followed those provisions. Attend the Labor Department's proceedings and present your stance on their raised points.
If the employees consistently disregard your instructions, you have the full right to terminate them.
From India, Pune
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