Madhu.T.K
Industrial Relations And Labour Laws
Boss2966
Industrial Relations
Kamalkantps
Advocate
Swatisingh2610
Hr Executive
Tajsateesh
Recruitment/talent Acquisition, Career Counselling
Samvedan
Consultancy_hr & Ir
Vdvgsrinivas
General Manager - Finance & Admn
+2 Others

I run a start up in Mumbai, India. I recently terminated an employee for misconduct; i.e. regularly getting into petty fights with other employees, disturbing the workflow and yelling at seniors without reason.
The employee has submitted an apology letter in written form and accepted the termination letter, however is now demanding one month's extra salary as he was terminated by the company.
I want to know whether there is any corporate-law that fits in such situation. I am giving the salary for the number of days present but certainly don't wish to give one more month's salary for which he hasn't worked.
Kindly share legal information on this.
16th August 2011 From India, Mumbai
Hello sandeeprajsharma, What were the conditions mentioned in the Offer/Appointment Letter that was given to him when joining your company — w.r.t. Resignation/Termination? Rgds, TS
16th August 2011 From India, Hyderabad
Hi,
As asked by tajsateesh, check your appointment letter. There must be a clause stating that ''''The management reserves the right to terminate your services without any notice or salary in lieu thereof for misconduct....'''''
He has no right to claim one month's salary. Just mention the clause to him and say that since you have accepted all the terms at the time of joining; so he can't claim anything.
Swati
17th August 2011 From India, Gurgaon
Even if your appointment order says that you can be terminated without notice for an act of misconduct, it will not be maintainable because termination without following enquiry or without following the principles of natural justice is illegal. Similar issue is being discussed in another thread also. Please follow that also.
https://www.citehr.com/221834-how-ma...ml#post1644025
Regards,
Madhu.T.K
17th August 2011 From India, Kannur
Dear Sandeep
As clearly said by Mr. Madhu T.K, you have to pay his Notice Pay, Retrenchment Compensation and Leave Pay or encashment whatever it may be alongwith other benefits accepted during offer of employment.
If the employee is not terminated and a resignation letter has taken from him then you need not to pay Notice Pay and Retrenchment Compensation and you have to pay only Leave pay whatever in his credit.
17th August 2011 From India, Kumbakonam
Hello,

Having read what others have said on the subject, I venture to state that:
  1. You have not stated whether you are a factory under the Factories Act or an Estanlishment under the Shops......Act.
  2. You have not stated how many workmen are employed in your establishment as depending answer to this and the first question the issue of possible retrenchment compensation will have to be dealt with.
  3. Have you initiated any disciplinary action against him on the present issue in the present instance? if so what is the outcome? If you can dismiss him as a consequence of proven misconduct and considering other related issues you dismiss him WITHOUT a notice as providd under Model Standing Orders (if applicable to your establishment).
  4. It appears that he is resigning because he is being forced or even perhaps he is tired of being with your company for his opwn reasons.
  5. In such a case, please don't stand on formalities, legalities and please do not give a chance to withdraw his resignation before you act. He can, if is under good advice!!
I appeal to all readers of this post to KINDLY give all pertinent details if you need competent advice!

If despite this you have questions, please raise them on the board.

Regards
samvedan
August 17, 2011
--------------------



17th August 2011 From India, Pune
Dear Sandeep,
Since your employee accepted his mistake and submitted apology letter, it is established that you had a discussion with him regarding the issue.
He accepted your termination letter, so withdrawal of resignation letter does not arise as he has been terminated by management
Please check termination of employment clause in his appointment letter, three is no need to pay notice pay if this clause is specific on the obligation of notice pay in case of termination on these grounds. If this clause is silent on payment of notice pay you are liable to pay notice pay for one or as specified by the terms and conditions in appointment letter.
With Best Wishes,
Srinivas
18th August 2011 From India, Bangalore
In the instant case, I feel, statutory obligations of the employer as per Industrial Disputes Act or applicability of the said Act, Factories Act or Shops and Commercial establishments Act need not be given much importance. Even if the establishment is not covered by chapter VA of the ID Act, termination of an employee without following the principles of natural justice will be legally void. Therefor, since the employee is asking for a month's salary, it is advisable to settle the matter by paying the amount. At least that will put an end to some sort of unpleasant working atmosphere in the organisation.
Regards,
Madhu.T.K
18th August 2011 From India, Kannur
Dear Sandeep,

You cannot terminate any workman even on a ground of gross misconduct without conducting any enquiry. there is no shortcut whatsoever if YOU terminate him. i am giving the solution.

Please check
1. whether he has accepted his mistake.
2. whether he asked to forgive or for a chance to rectify his mistakes in his apology letter.
3. have you given him any letter that the management has terminated you.
4. has he completed 240 days or more service with the management.


if the above is true then you should have had terminated him after conducting proper domestic enquiry.

Solution:
Ask him to tender his resignation stating the reason as his bad behavior and clearly stating that he is resigning on his own owing the responsibility of his bad behavior and you waive off his notice period.


Mind this always, if you have to terminate some body on any ground you will have to give him retrenchment compensation, if he is working in the organization for 240 days or more.

call me in case of any doubt.
18th August 2011 From India, New Delhi
Hi Mr. Sharma,
While most of our mates have specified certain norms and some have also warned you on the Dos and Donts on such conditions, I'd like to picture the fact that whenever you feel there is an employee who is genuinely not acting in the interest of the company, you should at the very outset try and issue warning letters to him/her. Before termination there has to be minimum 3 warning letters issued to him for his ill behavior or whatever reason. If even after this, the employee doesnt mend his ways, you may ask him to resign. Terminating an employee involves a lot of hassels and extra notice, retrenchment payments.
In this particular case, you ought to refer to the appointment letter issued to him at his joining. If it has the clause of termination on employee without notice on misconduct grounds then you are safe this time. Also keep his apology letter in the safe for future use.
18th August 2011 From India, New Delhi
Hi Sandeep,
It depends on what is being mentioned in the termination rules of the offer letter.If it contains that either parties have to give an advance notice of a partilcular time period, the org has to pay for the period irrespective of firing/lay off for what ever reasons.
Indian labour laws empowers the workers to sue the employers for non payment of salary that they entitled during their notice period by either parties.
Any deviation in the above might attract huge penalties.
Thanks,
Aswani

20th August 2011 From India, Mumbai
Hello Sandeep Sharma,
Why not share with this Forum on HOW the matter has been solved?
After all, this is what this CiteHR Forum is all about & meant for--sharing.
Also, it's obviously a natural corollary that you share the details of the SOLUTION TOO, after having taken the suggestions of the Forum members to solve the problem.
Look forward to your hear from you.
Rgds,
TS
23rd August 2011 From India, Hyderabad
I work as an HR at an NGO. We are registered under companies Act 25.
We have resource people hired for extra clases with out contract letters.
One of the resource person has misbehaved , we want to terminate the service of this person. Please can you'll share a format for the same.
20th August 2019 From India, Pune
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