Spl Educators Posh Programs
Raj Kumar Hansdah
Shrm, Od, Hrd, Pms
Consultancy_hr & Ir
Prima-facie Mr. A is NOT wrong.
He is just unfortunate that he worked with an uncouth emloyer!
Having said that, as a precaution (thinking after the event) he or someone on his behalf, could have sent a written information
about his being indisposed. He would have Hospital's papers, Bills, prescriptions etc. to prove that he was NOT ABSCONDING!
But if an organization has chosen to act in such a brazen manner, it is sheer misfortune for Mr. A.
Following courses are open to him still. Whether to follow these are not has to be entirely his own decision.
1) Make an appeal to the higher ups including the highest authority and leave the matter to your luck and his sense of values and ethics. Not that it will necessarily help, but why not try?)
2) If by reasons of the actual job Mr. A was performing, technically it is worth considering if he can proceed under labour by claiming himself to be a "workman" under Industrial Disputes Act 1947. But this is a dangerous option. If it works you will be watched by the entire industry as a bad boy! If you lose you are back to square one after spending you own money and time. You wil get bad publicity anyway even in this case. You have no remedy under civil law except against "breach of contract" (for which the facts must be in your favour and you should be willing to spend unestimated amount of time and money in pursuit of "justice").
Finally, based on the facts provided in your mail, if I were Mr. A, I would simply put the whole episode behind me, request for a clean chit for separation and look for another employment even if the clean chit request is turned down.
No other option comes to my mind at this stage anyway!
4th January 2011 From India, Pune
By now it has been established that
1) A is not wrong, and
2) A is victim.
Let’s discuss and help each other to draw some more conclusions with potential legal significance. Should we?
4th January 2011 From India, Delhi
If A's unjust treatment has been remedied internally he need not approach the Labour machinery/judiciary for the time being.
But can you throw some light on the full and final settlement A received? Was he entitled to Gratuity? Was it paid out?
Did he rejoin with "continuity of service" or without continuity? Even if he was not entitled to Gratuity, he will still stand to lose as once again he will have to complete 5 years to become eligible to Gratuity.
If he has accepted the rejoining as not being reinstatement with continuity of service, he has no grounds to complain.
He should represent to the higher authorities and claim his rightful dues if he has NOT given them up as an arrangement.
And if A has accepted what came his way, what is the point discussing this matter further, UNLESS YOU have any specific questions, or else the matter and this thread may rest here itself!
January 4, 2011
4th January 2011 From India, Pune
The main part of the story lies in 2nd term of employment which I will post subsequently.
To answer your points mentioned, A was not entitled to gratuity. Full and final statement was never released. And as he was given appointment letter afresh and on May 12 he re-joined without continuity in service.
My point here is that how unlawful and not ethical or illegal this was to discharge such a practice on company’s part. The company also had not provided any formal document pertaining to last employment status of A. Employer did not issued any termination letter and no formal documents related to separation were discharged and A did not receive the sum as per agreement's termination clause.
Which procedure of separation was followed by the company and whether such a procedure solely depends upon company’s internal policies and Law of Land has nothing to do with this.
Also, the company claims to be a CMMI level 5 and PCMMI level 5 certified one and many similar incidents were reported to be happened there one and again and which questions their level 5 status!
4th January 2011 From India, Delhi
I agree with Samvedan where he stated that , if A have been redeemed why are we discussing this now? In addition to this, I find a gap in the information sharing . We understand when A was hospitalized, hence was not in the condition to inform methodically. When A had informed the HR and Reporting manager, why any reply from the supervisor and the HR affirming the leave not received? The discussion through the land line cannot seem customary , when it was such a prime incident reporting.
Ideally , in IT firms when a hospitalization case gets reported , few activities are almost auto triggered. First is mediclaim initiation, for cashless facility. Second is to have a team member or a reporting leader have visited the patient in the hospital. When these things were not happening, why did A not raise an alarm? Does n't this show an information or at least a perception gap? When an organization initiates Cashless for an employee, its impossible for the organization to terminate the employee . The employee can resume work on fitness certification by the doctor.
I fail to understand how the supervisor or the HR was allowed to get an idea that this might be a blatant lie? A wouldn't have to fight any case , if the reporting was established at the beginning stage. I am not sure what was A's condition, but an email with the incident could have been sent by any team member A worked with. That would have evaded every room for doubt as the supervisor and the HR would have responded to it .
Finally why is A worried now ? The appointment letter form the first time hiring is there , so is the second time hiring. The gap can be easily explained as there are medical certificates on hospitalization. Hence this is self explanatory to the future employer. So what is A worried now ?
4th January 2011 From India, Mumbai
As I had mentioned that the main part of story lies in 2nd term of employment. If we can, we will be discussing many HR related policies, procedures and their discharge during 2nd term. The purpose of discussion here is to identify the irresponsible treatment given by employer, incorrect procedures followed by it. The consequences with legal significance that would have arisen out of employer’s discharge of foul practices and how effectively HR was expected to handle it when the matter was brought to its notice.
You have mentioned the gap in information supplied. Here comes the personal grudges of the supervisor against A and so he took this as an opportunity to harass A and a possible chance to throw him out of company; and that is why he did not update others.
The hospitalization was cashless and as it was intimated to TPA by hospital authorities the day of hospitalization (March 30), so the associated process was initiated the same day and final payments to hospital were made on day of discharge (April 5). Notable fact is that the termination was said to be processed on April 2. And, I have never known to a situation where a team member or a person with supervisory authority had ever visited officially a colleague admitted in a hospital for treatment. In case of illness we normally call our supervisor to report sickness and the same was done in this case.
5th January 2011 From India, Delhi
The case stands clear. When the cashless facility was initiated, there is no ground that the employee can be terminated in the due course. When the employee had reported to work post the discharged from the hospital , was there any time difference? I mean a day or a two gap anywhere in between which have not been recorded or reported?
Reporting managers visits employee in case of hospitalization. In case they cant the team members does it . But there is an official visit for spot inspection. Its a must part of the incident reporting. If you have not seen it anywhere, its non-adherence to the procedure. But then, A cannot prove this. The process documents , I am sure are not made available to the employees. So no point in referring to it now.
The cashless initiation is a legal proof. which supports the employee remained in the payrolls of the company. Does A have any document supporting this initiation. or at least mentioned it in the discharge papers ?
5th January 2011 From India, Mumbai
2. As per my understanding, A need not to prove whether spot inspection was made or not. When he arrived at hospital and a need for hospitalization was recognized, A was admitted and TPA was informed by hospital authorities and subsequently TPA or concerned authorities took care of hospital payments. Total medical bill incurred was of about Rs 21,000 and on day of discharge A was asked to pay little part of the amount (less than Rs. 500 and this was the amount not covered by mediclaim policy) and so was paid by A in cash. A carries all the papers where a mention of employer and its mediclaim vendor related information has also been provided.
5th January 2011 From India, Delhi
Despite the valuable inputs by our senior members, I admit my ignorance in not being able to comprehend its complexities.
An employee, on being sick, gets hospitalized (March 30) and gets discharged after a week (April 5) with an advice of further rest of a week.
However, he gets terminated on the eighth day (April 6) for "absconding".
This is despite the fact that he can avail Sick Leave, as his absence is justified and well-documented. (It is immaterial who picked up his hospital bills).
No good/ethical company/HR would do so (for an absence of just 7 days); without examining the matter or giving an opportunity to the employee to explain.
The employee had duly communicated this to the Management through phone.
I wonder what would have happened; had the employee been hit by a vehicle and would have been lying unconscious in a hospital for a week !!
Perhaps such a management would have hanged him from the nearest pole !!
It is a clear case of victimization and high-handedness by certain companies.
6th January 2011 From India, Delhi
So how the ex-employee can avail the group medical insurance facility?
How HR facilitated this in spite of its employee's terminated status?
6th January 2011 From India, Delhi
I agree with Raj, its clear, it was an HR Goof-up. But for me it was important to understand the entire process. A has two options now.
- The first is judiciary , which may bring result after a long drawn fight which would drain all the productive time and resources of A.
- The second is, speak to a lawyer, to'understand' the legal purview'. Then frame a letter putting the facts to the HR , possibly HR Head of that vertical.
Consequence: The HR would not be able to make any change in the ERP . Hence revoking the earlier employment term and providing continuity is out of question. Hence , HR would offer a workaround, such as a letter stating the incident which will support the employee was not terminated.
Here's a similar incident from my experience. In of the IT giant , I worked with, we had hired an employee from another IT giant. Now the new joinee claimed that he had worked with the company for the last 6 years. Whereas the document showed appointment letter from the date 6 years back. But the relieving letter had a different date mentioned as 'Date of joining' which was just an year back !
This was a major defect as it was misrepresentation of data . But then the employee had salary slips and the bank statements for all these years baring for two years when he was sent onsite. When we questioned the new joinee , we found that he was sent to USA for two years. Just as it works in IT Firms that, when an employee travels onsite, they are made to resign from the Indian subsidiary and join the American LLC. He too had done the same. But post his return to India , he was given a month's leave during which he had gone to his native place. His mistake was, he went for his leave before reporting the Indian subsidiary. But then he never knew the consequences. Hence the appointment letter which was to be issued by the Indian subs , was issued a month later. Now this may sound very confusing, but its entirely procedural!
Now a year later, the employee did not have anything to prove that he wasn't terminated and re-hired. But our process required him to support every data he provides.
Thankfully he maintained good relations with his ex-reporting manager and the HR team. So he did submit an email and a letter from both of them stating this entire case, that supported he was never terminated. It was a part of procedure which showed the gap.
The letter remained evidence with us .
6th January 2011 From India, Mumbai
Now let us discus the Future of A after him re-joining this big brand on May 12. He became a big question mark!
Every one working in company’s local office started treating him like a sinner. As A had fought for his job and got it back by the intervention of remote management so the Local management including Sr. HR Manager and VP-HR, all started abusing their authority by directing their managerial wisdom to conspire A’s exit from the concern. They explored every possible opportunity to harass him up to the extent that he may simply give it up or throw him out. A was subjected to meetings where he was taught about the company code of conduct, company policies on leaves, breaks from work etc., verbal warnings in public and was handed over a formal counseling letter once. This exercise was continued till almost 7 months.
A had always dreamt of a very long term association with this conglomerate because of its brand name and he landed in a situation where he was almost made a subject of experimenting company policies and procedures and was facing constant harassment in some or other form from his supervisor.
Do anyone have something to say on this ???
7th January 2011 From India, Delhi
so much for professional management!!! If companies truly believe in what they profess then why would such a thing be happening? In my mind it is simple, (1) people are prejudicial by default, (2) organizational ego is the biggest threat to the professional employees, and (3) every other abusive managers/management thinks that they can get away with anything because it is a private company....
If the company has any decency, professionalism and integrity, why would it not issue an apology letter and send a letter to all local managers that this issue be forgotten and he be treated without a trace of this incident? They never did that and there is no culture/policy/process to support such employees back into the organization....even though it wasn't his fault.
I remember in another thread of mine where people were asking me to quit or move on by finding another job etc. ignoring what was obvious but trying to judge me..... one should put themselves in the shoes of the affected person and see what it means... I really feel bad for this 'A' and wish he will pull thru....
IMHO, getting unfairly/illegally terminated is same as getting raped.. the effects and impacts on the employee are same... Now would we let a rapist get away with it? (pardon my french!)
Ideally the company must talk to this 'A' and the management to smooth it or pay him the salary for 5 years and ask him to go on a sabbatical and join back the company after that.. by this time hopefully most other employees would have moved out so that he can continue his work ...I know this may not be practical but I say this to highlight the seriousness of the issue and the obligation of the employer....
7th January 2011 From India, Hyderabad
Now what happens with him!!!
When things reached beyond his tolerance limit he burst out and wrote a story, e-mailed it. He documented many things- discrimination, harassment, abuse of authority etc. [this email is attached herewith.]
This e-mail was also copied to Sr. Manager HR, VP-HR and Director - HR.
What reaction can we expect from these top notch HR professionals?
8th January 2011 From India, Delhi
I have been active on this forum for the last few days or so only and I noticed that most members see things from employers' obligation, authority and rights perspective and instead I believe we should see things from an impact and effect on the employee against whom action is taken...
Why is that? First of all the entire relationship is one sided and is in favor of the employers. Secondly, the employers seem to be presumed to act in the best interest of the both parties (though in realities that is not the case), thirdly, the employee will always be the weaker party in all employment relationship (unless it is a fixed term contract), even the senior management except the CEOs are of this kind...
It is for this reason that the common law as well as the contract law enforces certain rules to create a level playing field and no competent and fair court will ever side with the employer when they violate such basic things.
When an employer asks for reference and relieving letter before joining, then there is an obligation to make sure that the same employer provides proper and fair references and relieving letters to their employees who are leaving them. If not then this is nothing but a slavery system... India has so many cases in which employees were not given proper relieving letters and last payment etc and there are so many people who are looking for help in desperation (though no body wants to come forward and lodge a complaint due to repercussions to their future employment)
I encourage all members of this forum to take a balanced view on these matters and opine & help accordingly...
You see, nobody will object to employers taking reasonable action against erring employees... especially if someone submits a fake degree or diploma then certainly the employee knew what he was doing and thus any reasonable action is fine.. BUT, what if your finding that the degree was fake is wrong? think about it.. If the employee's degree certificate was genuine but was incorrectly concluded as fake then the impact on the employee is irreparable... that is the key... thus, before unilaterally taking action against even such an employee, the employer must give him an honest and fair opportunity to prove his innocence and based on that the employer must take a 'well reasoned decision' that meets the needs of the good faith conduct and principles of natural justice.
A constitution bench of a High Court and Supreme Courts have said that 'right to principles of natural justice is fundamentals of the fundamental rights!". It is universal and not even a parliament can shake that or can go against it... Now, almost all of the issues that I have raised in this forum and that most employees are complaining of is purely a violation of good faith and principles of natural justice. Mostly it is a simple high handedness of the employer believing that they know better...
If every employer follows that (good faith conduct and principles of natural justice) meticulously then there is no need for any law or rules but unfortunately most employers don't.. that is the issue...
Bottom-line, put yourself in the shoes of Mr. A and see what you see..
9th January 2011 From India, Hyderabad
In the above case Mr. A cannot be terminated.
If it happened means the reputation of the Company will get spoiled, because without information from the hospital or from Individual how they came to know about his hospitalisation?
If they did not get any information regarding his hospitalisation, how the company remitted his hospital dues during the time of his discharge from hospital.
Already the patient is sick, he should not be victimised by the company without his fault.
With warm regards
9th January 2011 From India, Kumbakonam
10th January 2011 From India, Delhi
The situation here can be summarized as follows:
1. Both employee as well as employers are prone to mistakes - it is natural
2. When the employer makes a mistake and terminates an employee then eventually the employer will have to reinstate that employee using some process.
3. Most reinstated employees will invariably will face the same challenges being faced by Mr.A here..
What process and policies should a company have in place to accommodate a situation like this?
Could this be a good way to look at the issue here and discuss further?
10th January 2011 From India, Hyderabad
10th January 2011 From India, Delhi
The Principle of Natural Justice categorically states " Hear the Other Side", which has been blatantly overlooked. It is the duty of HR Managers to aid and advice other functional managers to take proportionate & appropriate action devoid of retaliation whatsoever. The management should have sent an example by adhering to the rules & regulations of the organization for smooth functioning thereof.
The management has also erred by acting unlawfully & not referring to the Indian laws, such as the Contracts act, Industrial Employment (Standing Order) act, Shops & Establishment act, before taking this intriguing and drastic action particularly when the employee had submitted information of hospitalization.
The moot point was whether the medical certificate furnished by the employee mentioned "Unfit for duty" or just mentioned "rest recommended". Such questionable act on the part of management result in employee disengagement, attrition & under performance.
I hope that with the onset of this new decade, managers will empower themselves with proper knowledge before taking any retractable & indefensible decision.
Thanks & Best Wishes
Harsh Kumar Sharan (XLRI alumnus, IR Expert)
Director & Head - Executive Coaching & Training
Kritarth Consulting Private Limited
11th January 2011 From India, Delhi
Now the option available with the employee is to fight it out from within the system or from without.
If there is a trade union or association available in the organisation (which is highly unlikely) he can fight his case through them. That is how he can fight it from within.
Otherwise he has to fight from without. That is through the legal process. He should resort to legal remedies.
12th January 2011 From India, Madras
Thanks for the Private Message. In your responses you seem to appear disheartened and demoralized. Don't be.
I understand the feelings of Mr. A; and how years of painstaking labour, effort and determination to come up in life through sheer hard work and merit, is simply brushed away in a moment of arrogance by a callous management or its representative.
I have seen several and even faced such situations. Unfortunately, somehow the career of a person depends on his bosses and their attitude and they even manage to 'manage' the upward communication should an employee try to highlight or escalate such an issue.
I agree with others that an employee doesn't stand any chance against the might of an employer, should he be subjected to victimization or unfair treatment; and the sad part is that such phenomena are on an increase.
With liberalization, "westernization' of industry and business; and the gradual weakening of the trade unions; there is no refuge left for hapless employees. Now, no one bats an eyelid, if an employer heaps injustice on an employee - I hope you are able to judge this from your 'observed' lack of responses, which you may not have anticipated.
Recession and the cosequent downsizing all over the world, has rendered the intelligentsia insensitive and immune to such things.
It is ironic to find that although we have "imported" the working style of the developed nations, we have failed to implement their fair employment policies and accounting and disclosure norms.
Under the circumstances, you are better advised to proceed with the developments in your case study, if any, rather than lamenting and awaiting for more responses.
13th January 2011 From India, Delhi
it means that they ask you your side of the story and that is it!
Actually, the correct meaning of " Hear the Other Side" is of three folds.
1. You provide the complete documentation/evidences against the other party, along with the charges.
2. Allow the other party to reply to the charges (after the previous step)
3. Make a recommendation/decision after thoroughly considering and accepting/rejecting the points in the reply of the other party. i.e consideration of the reply as well as cogent reasoning is a must.
It is unfortunate that most companies got this completely wrong and they think that they can completely ignore such a procedure (which is the centrality of the principle of natural justice).
[Inquiries of the other party is not part of this procedure and is a precursor to this procedure.]
13th January 2011 From India, Hyderabad
During this 7 month period, although he was given some counseling sessions (upon management’s whim), management had no reason to issue him any show cause notices.
The same day, when A reported the misconduct [Nov 2, 2008], management sent him on an indefinite leave and a Show Cause Notice asking explanations about his poor performance on work was sent to A's email address on Nov 7, 2008 [attached herewith].
Also, he was advised to resign the company.
HR issued a Show Cause Notice to its employee, and please note that only when serious allegations were made by the employee against unlawful act of his employer.
So this was the consequences of reporting a misconduct, A was returned back the charges of misconduct. This was the HR practice followed in a PCMMI Level 5 org.
13th January 2011 From India, Delhi
Here in this post, you are intended to test the HRites about their efficiency and their Mindset. That's the reason Most of the Senior HR personnel are not involving in this discussion. If you come with your problem in one go then there will be chances of analysing the entire scenario and the personnel involved also can opin their views. If you tell part by part then the people will have the feeling that you are trying to trap the most of the HR personnel.
Please for heaven sake do not try to check their knowledge or efficiency. You cannot get the correct result.
With warm regards
13th January 2011 From India, Kumbakonam
I second you on this. I received similar feedbacks about this thread. We do work to find a solution, but the way the case facts have been shared, it did raise questions which was not appreciated by our leaders. I too had the same thought.
I did participate in this thread and had shared my suggestion towards solving this. We always have a choice . But since two years have already been spent in the environment, testifying at this point may not be the only productive solution.
The HR process had loop holes, which is why the employee was redeemed. The mental harrasment should have been reported much earlier. The moral hazards gets reported within a week maximum a month's time. No one takes such stress for such a long time. Specially when the employee had used the 'Open door' policy . A part of the policy ensures that there is no retaliation on the employee who avails it. Its a defect even on the employee's part not to report if any extreme treatment have been experienced. Finally, if this is contested now , it would remain a point of question for the employee. Playing a devil's advocate here, in the absence of natural reaction it may point that the employee is using the loop holes to arm-twist the management.
At this stage it would be best for the candidate to save whatever time he can and find a better job.
13th January 2011 From India, Mumbai
I completely agree with "boss2926", Mr. S. Bhaskar's latest post.
I fail to understand the motivtions of Mr. Singh.
Does he really need answers or he is just testing out the members of the board? Initially I responded, in good faith and soon thereafter I felt I was being drawn into an unfair game (cat & mouse??)
I refused to be so dragged and stayed away from the thread. Now I find that someone is also thinking on the same lines and that gave me impetus to speak up.
I could be totally WRONG in comprehending the motivations of Mr. Singh but have the confidence to state that we the members of the board have all the answers to Mr. Singh's questions here-only if he were to ask in a transparent manner!
I am responding to Mr. Bhaskar's observations and shall still not participate in this or such thread. It did not give a comfortable feel or good vibes!
To each his own!!!! Thanks Mr. Bhaskar for speaking my apprehensions!
January 13, 2011
13th January 2011 From India, Pune
1) its being a very long story that’s why I thought of posting it in parts rather posting the entire contents at once and 2), there are fare enough chances of this being overlooked if the contents were too heavy. And the sole reason to post it here is just to make everyone aware that these kinds of HR practices may be observed and seen at workplaces and even in topnotch organizations. Also the story discusses the problems faced by call centre professionals and their treatment in organizations.
I feel sorry if the manner, I took, appeared an unfair game to you, however every post attracts discussing some policies and procedures and their execution in a fare and humane way and also the cause-and-effect analysis.
I am using this forum as a genral discussion forum. As, I have attached the contents of the e-mail sent to HR and the returned reply from HR- the Show Cause Notice, and there is a point in my prvious post - HR issued a Show Cause Notice to its employee, and please note that only when serious allegations were made by the employee against unlawful act of his employer. I hope this point has enough capacity to attract different opinions from our group members without need of any further knowledge. Doesn't it?
Please correct me if I am wrong.
13th January 2011 From India, Delhi
Find more on this discussion-
Need legal opinion-Labor law violation and termination. - Forum - Law, Lawyers, Advocates, Law Firms,Legal Help, Legal Experts,Judgements,Law Help, Indian Lawyers
19th January 2011 From India, Delhi
We are ready to extend hands for any type of help to anybody.
But after obtaining suggestions and ideas from us and trying to trap our own guys will not be acceptable to any of us.
Unity is strength
With warm regards
20th January 2011 From India, Kumbakonam
I don't understand the meaning of "our own guys"! This is the only reason why we all Indians are witnessing this messy environment. This discourages transparency and a positive decorum. Instead of utilizing their fullest potential towards doing their best for mankind; many of the people among us are trapped indulging in activities just to support or back up their “our own guys”.
I am sorry but I have to say, this is really a poor mentality and the incidents described in this thread are the examples of this mentality only. This Mr. A became “NOT our own guy” in the eyes of several people within that organization and that’s why this all happened.
I’ve never asked anyone for suggestions and ideas to trap anyone. I wanted to keep it as an open discussion, however I can see a few among us have mistaken it.
And I am surprised why you have not taken this as an opportunity to discuss some humane issues in business environments, role of HR and its impact on different parties’ etc.
Do correct me where I am wrong!!
20th January 2011 From India, Delhi
, however I am still expecting involvment of our learned HR experts, esp (Cite Contribution), etc.
To proceed further with the matter, A was asked to submit the reply to above Show Cause Notice (dispatched on Nov 7, 2008 ) within 3 days and so A submitted the reply on Nov 10, 2008.
The above show cause notice was framed with no mention of any specific incident of alleged misconduct and was mere as a punishment for raising voice against management ignoring A’s duty records and factual facts. A, in reply, denied all the allegations imposed in detail [I am attaching the copy of reply herewith].
In above reply, there is a mention of incident pertaining to Labour Law violation. A has quoted an incident happened on (the day when A complained about the incidents of harassment). On this day A was forced to work for more than 6 continuous hours without taking a minute's break.
25th January 2011 From India, Delhi